dedol-hf/india-case-legal-rag huggingface dataset:
The learned Attorney-General pointed out that particular
subjects  were removed from the jurisdiction of  this  Court
and  it  had  no power or authority to  adjudicate  on  them
notwithstanding  any other provision in the ConstitUtion  to
the contrary. The learned counsel for the plaintiff  contro-
verted  this  contention and urged that article 363  of  the
Constitution  had  no  retrospective effect  and  could  not
affect Suits that were pending in the Federal Court and
505
which  under the provisions of article 374 (2) were  removed
to  the Supreme Court and regarding which  jurisdiction  was
conferred on it under the provisions of that article. It was
said  that article 363 could only have application to  suits
or disputes brought or raised after the 26th January,  1950,
and  not to suits that had already been brought before  that
date. It was further contended that the plaintiff's suit did
not  arise  out of any treaty or agreement  inasmuch  as  it
denied the very existence of such a treaty or agreement.  It
was further pointed out that the suit did not relate to  any
of the subjects that were within the scope of this  article.
In order to appreciate these contentions it is necessary  to
refer to article 374 (2), which provides as follows:--
    ''All suits, appeals and proceedings, civil or criminal,
pending  in  the Federal Court at the commencement  of  this
Constitution  shall stand removed to the Supreme Court,  and
the Supreme Court shall have jurisdiction to hear and deter-
mine the same..."
    The question for decision under this issue concerns  the
true scope of the provisions' of articles 363 and 374 (2) of
the  Constitution. It is easy to frame difficult  conundrums
on the material offered by the two articles in question  but
when  one considers them without a desire  for  controversy,
they  soon open to a clear and simple meaning.  Article  363
takes  away the jurisdiction of this Court on  certain  sub-
jects  if  suits about them are instituted  after  the  26th
January, 1950, or disputes concerning them arise after  that
date, while article 374 (2) empowers this Court to hear  and
to  determine suits which were pending in the Federal  Court
of India on the 26th January, 1950, and which that court was
competent to try and determine. There is, in my opinion,  no
conflict  between  these two articles. They operate  on  two
different fields.  The Federal Court of India had  jurisdic-
tion  by  virtue  of the provisions of section  204  of  the
Government  of India Act, 1935, to determine  certain  suits
between  acceding  States and the Government of  India  with
respect to certain subject matters and that jurisdiction was
continued for the time being and was conferred on this
506
Court.  The  original jurisdiction to the Supreme  Court  is
conferred  by article 131 in respect of similar suits but  '
it  does not embrace all the subjects that were  covered  by
section 204 of the Government of India Act, 1935.
    In Keshavan Madhava Menon v. The State of Bombay (1)  it
was held by this Court that the Constitution of India has no
retrospective  operation. This proposition was not  disputed
by the learned Attorney-General. Article 363 of the  Consti-
tution has therefore to be given a prospective operation and
as  such  it  cannot affect suits pending  before  the  26th
January,  1950.  It was contended by the  learned  Attorney-
General that though the article has no retrospective  opera-
tion, yet the language employed in it affects the  jurisdic-
tion of this court in respect of suits that were pending  in
the Federal Court if they relate to subjects stated therein.
Emphasis was laid on the opening words of the article. In my
opinion,  this  contention is without  force.   The  opening
words of the article do not make the article  retrospective.
Once it is held that the whole article operates prospective-
ly  on suits that are brought after the 26th January,  1950,
or on disputes that arise after that date, then the  opening
words of the article cannot affect cases transferred to this
Court from the Federal Court under the provisions of article
374  (2)of  the Constitution.  It is a well  known  rule  of
construction  of  statutes that no statute unless  it  be  a
statute  dealing with procedure only should be construed  as
having  retrospective effect, unless the  statute  expressly
makes its provisions retrospective or  retrospective  effect
must be given to it by necessary implication or  intendment.
The  law leans against giving retrospective effect to  stat-
utes. Reference in this connection may be made to the  deci-
sion  of the Court of Exchequer in Moon v. Burden(2).  There
the learned Barons of the Exchequer had to consider  whether
section  18 of the Gaming Act, 8 and 9 Vict.,  Chapter  109,
was  retrospective.  The words of that section were as  fol-
lows :--
    "And  be it enacted, that all contracts  or  agreements,
whether by oral or in writing by way of gaming or
(1) [1951] S.C.R. 228.       (2) [1848] 2 Ex. 22.
507
wagering, shall be null and void; and that no suit shall  be
brought  or  maintained  in  any  court  of  law  or  equity
for recovering any sum of money or valuable thing    alleged
to be won upon any wager, or which shall have    been depos-
ited  in the hands of any person to decide     the event  on
which any wager shall have been made."
       Although the section provided that no suit should  be
brought  or maintained in any court for the  recovery     of
any such sum, nevertheless the Court of Exchequer  held that
section  did not apply to suits which  had  been  instituted
though  not decided before the Act  came into force. It  was
observed  by Baron Parke that the enactment "that  all  con-
tracts or agreements, by  way of gaming or wagering shall be
null  and void", if  it stood by itself, ought most  clearly
to  be  construed   as applicable to  future  contracts  and
agreements only,  and that if the next part stood alone,  it
would,  though   not so clearly, be construed  to  apply  to
future actions  only and it should be construed to mean, not
that  an   action already brought should not  be  maintained
but    that no action should afterwards be brought,  or,  if
brought, maintained. In Beadling v. Coil (1), the Court   of
Appeal  in  England held that the Gaming  Act,  1922,  which
provided that no action under section 2 of the  Gaming  Act,
1855,  to  recover back money paid in    respect  of  gaming
debts  "shall be entertained in any   court", did not  apply
to actions which had been commenced before the Gaming Act of
1922  came into force. In Henshall v. Porter  (2),  McCardie
J., went further   and held that the Gaming Act, 1922, which
prohibited  all courts from entertaining such suits, did not
apply  to cases where the cause of action had arisen  before
the  passing of the Act, though no suit had been  instituted
until the Act had been passed.  The rule laid down in  these
cases  was expressly approved by the Federal Court of  India
in  The  United Provinces v. Mst. Atiqa   Begum(3)  and  the
learned Attorney-General frankly conceded that the rule laid
down  therein  was not contested. It seems to me  that  this
rule of construction
 (1) [1922] 39 T.L.R. 128.      (3) [1940] F.C.R. 110.
 (2) [1923] 2 K.B. 193.
508
has apposite application to the construction of article  363
of  the  Constitution and the article has  no  retrospective
operation  and only affects disputes that would arise  after
the  26th  January, 1950. As pointed out in  Willis  in  his
Constitutional Law, the same principles govern the construc-
tion of constitutions and the construction of statutes,  but
that the dominant force in the construction of  constitution
is  to construe one part in the light of the  provisions  in
the other part, as the constitution is a logical whole, each
provision  of  which is an integral part of itself.  In  the
majority judgment of this Court in Keshavan Madhava Menon v.
The State of Bombay (1) it was observed that the idea of the
preservation  of  past inchoate rights  or  liabilities  and
pending  proceedings to enforce the same is not  foreign  or
abhorrent  to the  Constitution  of India and that idea  can
be given effect to if article 363 (1)is construed as  above.
Any  other  interpretation  of article 363  would  make  the
provisions of article 374 (2) partially nugatory inasmuch as
certain suits pending in the Federal Court under section 204
of the Government of India Act, though removed to this Court
with  a  direction that they have to be  determined  by  us,
could not be heard by this Court.  Such a result is  avoided
if article 363 is construed as suggested by me.
    The  contention raised by the learned counsel   for  the
plaintiff that this suit does not arise out of any agreement
as  it  questions  its very existence does  not  seem  sound
because  the dispute in this case clearly arises out of  the
provisions of the Instrument of Accession.
    The next contention raised that the suit in so far as it
questions  the validity of certain statutes by  interpreting
the provisions of the Government of India Act and the  Inde-
pendence  Act has force as these subjects fall  outside  the
scope  of article 363.  The question of jurisdiction has  to
be  determined  on the allegations made in  the  plaint  and
cannot  be decided by considering the written statement  and
the validity of the grounds alleged in the plaint.
(1) [1951] S.C.R. 228.
509
    For the reasons given above I respectfully beg to differ
from the view of the majority of the Court on this issue and
hold that issue 1 should be decided in favour of the  plain-
tiff.
Issue  3:  Section 204 of the Government  of  India  Act
provides as follows :--
    "(1) Subject to the provisions of this Act, the  Federal
Court  shall, to the exclusion of any other court,  have  an
original jurisdiction in any dispute between any two or more
of the following parties, that is to say, the Dominion,  any
of the Provinces or any of the Acceding States, if and in so
far as the dispute involves any question (whether of law  or
fact)  on  which the existence or extent of  a  legal  right
depends:
Provided that the said jurisdiction shall not extend to-
(a)  a dispute to which a State is a party, unless the  dis-
pute-
    (i)concerns  the  interpretation of this Act  or  of  an
Order  in  Council made thereunder before the  date  of  the
establishment of the Dominion, or of an order made  thereun-
der  on  or after that date, or the  interpretation  of  the
Indian Independence Act, 1947, or of any order made thereun-
der, or the extent of the legislative or executive authority
vested in the Dominion by virtue of the Instrument of Acces-
sion of that State; or---"
    Under  this  section  the Federal  Court  was  conferred
exclusive jurisdiction on disputes between the Dominion, any
of  the Provinces or the Acceding States, provided  that  in
the case of the Acceding States the conditions laid down  in
clause (a) cited above were fulfilled.  It was contended  by
the  learned Attorney-General that the basic relief  claimed
in  the plaint is that the Instrument of Accession  subsists
and  that in substance the suit is to enforce the  terms  of
the  Instrument  of Accession on the allegation  that  these
have  been  contravened,  but  that the  fact  is  that  the
Instrument  of Accession was superseded by the agreement  of
the 15th December, 1949, and is no longer subsisting,
510
and  that  being so, the subject matter of this  dispute  is
outside  the scope of the section.  It was also argued  that
unlawful acts by one sovereign State over the sovereignty of
another State would be in the nature of political acts (acts
of State) and that the municipal courts could have no juris-
diction to give relief concerning them.  It was not disputed
that in those suits in which the execution of the supplemen-
tary  agreement of the 15th December, 1949, was  not  denied
the  controversy  raised in the plaint would be  within  the
ambit  of  the section. In reply to  these  contentions  the
following submissions were made on behalf of the  plaintiffs
in this and in the connected suits:
    (1)  That the subject matter of the suit  concerned  the
construction  of  sections 6 and 101 of  the  Government  of
India Act, 1935, and the point to be decided was whether  on
the  correct construction of these sections the Dominion  of
India was competent to pass the Extra Territorial  Jurisdic-
tion  Act,  XLVII of 1947, so as to affect  the  plaintiff's
rights,  and could promulgate the various orders  concerning
the merger of the plaintiff State;
(2)  That on the allegations in the plaint, that     a  true
construction  of  the  provisions of section 6  (a?  of  the
Government of India Act, 1935, the alleged or admitted  sup-
plementary instrument did not fall within its purview was  a
matter within section 204 of that Act;
(3)  That  it  having been alleged in the  plaint  that  the
merger  order  in  pursuance of which  plaintiff  State  was
merged  with the Province of Bihar was not within the  ambit
of section 290-A, brought the suit within the provisions  of
section  204  inasmuch as it was a question  concerning  the
interpretation of section 290-A of that Act;
(4)  That on the allegations in the plaint that on a  proper
construction  of the Indian Independence Act, section  290-A
was  not  a valid piece of legislation the suit  came  again
within the ambit of the section;
(5) That the defendant not having raised the plea of act  of
State to defend its various actions taken qua
511
the  plaintiff State, the point could not be raised at  this
stage,  and that in any case when the defendant had  pleaded
that  its acts were done under the agreement of 15th  Decem-
ber, 1949, it was not open to it to take that plea.
    As already observed, the question of jurisdiction has to
be decided purely on the allegations made in the plaint  and
it seems clear that on those allegations the suit is  within
the ambit of section 204.  It is, however, quite a different
matter that those allegations may not on further inquiry  be
substantiated.  Questions regarding the interpretation  both
of  the Government of India Act and of the Indian  Independ-
ence  Act have been canvassed in the plaint and it has  also
been  contended that on a true construction of the scope  of
the Instrument of Accession which subsists none of the  acts
of the defendant can be justified.  The merger order, it has
been  said, is in excess of the provisions of section  290-A
of the Government of India Act and this raises the  question
of  the  true scope and intent of that section.   The  issue
therefore is decided in favour of the plaintiff.
    Issue  6:  The decision of the question raised  by  this
issue  depends on the determination of the question  whether
the  plaintiff  State has been validly integrated  with  the
Province  of Bihar.  If section 290-A of the  Government  of
India  Act  is not a valid piece of legislation  or  if  the
merger  order  issued under that section is  void,  then  it
cannot be said that the plaintiff State no longer exists and
has  been  merged  in the Province of  Bihar.   The  learned
Attorney-General made reference to article 1 of the  Consti-
tution,  which  defines the territories of  India  and  also
referred to the schedule in which it has been noted that the
territory  of the State of Bihar includes those  territories
which under the provisions of section 290-A have been  inte-
grated  with it.  This statement in the schedule has  to  be
read  subject to the contention raised above.  It cannot  be
denied  that an Instrument of Accession was executed by  the
plaintiff State in favour of the Dominion of
       66
512
India  and  the plaintiff by this suit alleges that  on  the
true  construction  of that instrument the  plaintiff  State
retains  its  integrity.   The plaintiff  State  denies  the
execution  of the supplementary instrument and  also  denies
that its merger is valid under its terms. Without  determin-
ing the correctness of these allegations it is difficult  to
hold that mere non-recognition of the State in the Constitu-
tion  wipes  out  its existence and that  the  situation  is
analogous to the case of death of a party in a suit. It  may
be  pointed  out that under the terms of the  Instrument  of
Accession  the plaintiff was not bound either to accept  the
future  Constitution of India or to subscribe to  its  terms
and  that being so, it would not be correct to find that  by
the  coming into force of the Constitution  the  plaintiff's
suit  has abated. This Court has to decide the case  in  the
situation in which it was instituted in the Federal Court of
India  and  on the merits of the controversy it  has  to  be
determined  whether  the State has been  integrated  validly
with  the  territories of the Dominion of India or  not.  In
these  circumstances, in my opinion, the plea  of  abatement
raised  has no validity. It was argued that this Court  must
accept  the Constitution and cannot go behind it,   This  is
unquestionably  so, but in this case no question  arises  of
going behind the Constitution, when the court is only  exer-
cising  jurisdiction conferred on it by article 374  (2)  of
the Constitution and deciding suits filed by Acceding States
before the Constitution came into force.
     Issue  5:In my judgment, the plea raised under  section
80 of the Code of Civil Procedure has no validity.  The Code
of  Civil Procedure has not been made applicable as  in  the
case  of High Courts by section 117 to the Federal Court  of
India.   By  section  204 of the Government  of  India  Act,
exclusive original jurisdiction was conferred on the Federal
Court  in respect of suits between States and  States  which
were  outside  the ken of the Code of  Civil  Procedure.  By
section  214  of the Government of India  Act,  the  Federal
Court  was  authorised to make its own rules  of  procedure.
The Code in section 4 has enacted that it does not affect
513
any special jurisdiction or special forms of procedure. Rule
5 of the Federal Court Rules framed under Section 214 of the
Government  of India Act lays down in clear and  unambiguous
language  that none of the provisions of the Code  of  Civil
Procedure  shall  apply to any proceedings  in  the  Federal
Court unless specifically incorporated in these rules.   The
provisions  of section 80 have not been incorporated in  the
rules  and  that being so, section 80  cannot  affect  suits
instituted  in  the Federal Court under section 204  of  the
Government  of  India Act, 1935.  It was  contended  by  the
learned  Attorney-General that the condition  precedent  for
instituting a suit laid down in section 80 was not a  matter
of procedure falling within the ambit of section 214 of  the
Government of India Act and that the Federal Court could not
make rules eliminating the condition precedent laid down  in
section  80  before a suit could be instituted  against  the
Government.  In my judgment, this contention is  not  sound.
Section  214 lays down that the Federal Court may from  time
to time with the approval of the Governor-General make rules
of court for regulating generally the practice and procedure
of  the court.  "Practice" in its larger sense  like  proce-
dure, denotes the mode of proceeding by which a  legal right
is  enforced,  as distinguished from the law that gives  and
defines the  right.   "Procedure"  as  defined  in   Wharton
means  the mode in which successive steps in litigation  are
taken. It seems to me that what is enacted in section 80  is
the  first step in litigation 'between the parties when  the
cause of action is complete.  Section 80 in effect  provides
that  an advance copy of the plaint should be served on  the
defendant  and no suit should be instituted in  court  until
the  expiry  of two months after such service.   Section  80
does  not define the rights of parties or confer any  rights
on  the  parties. It only provides a mode of  procedure  for
getting the relief in respect of a cause of action.  It is a
part  of  the machinery for obtaining  legal  rights,  i.e.,
machinery as distinguished from its products.  [Vide  Boyser
v. Minors(1).]
(1) 50 L.J. Ex. 555.
514
    Reference was made by the learned AttorneyGeneral to the
decision  in  Bhagchand Dagadusa v. Secretary of  State  for
India (1).  At page 357 their Lordships of the Privy Council
examined  the view that had been taken in some of  the  High
Courts in India on the applicability of section 80 to  suits
for  injunction and it was held that these had been  decided
on an erroneous assumption that a statutory provision as  to
procedure  was subject to an exception in cases of  hardship
or  in cases where irremediable harm might be caused, if  it
was strictly applied.  It was pointed out that the Procedure
Code must be read in accordance with the natural meaning  of
its words and that section 80 being explicit and  mandatory,
it  admitted of no implications or exceptions.  Their  Lord-
ships then made these observations:--
"To argue as the appellants did, that the plaintiffs had
a  right urgently calling for a remedy, while section 80  is
mere  procedure,  is fallacious, for section  80  imposes  a
statutory and unqualified obligation upon the Court."
The learned Attorney-General  relying on those  observations
contended  that  section  80 did not lay down  any  rule  of
procedure but was a provision affecting substantive  rights.
I  am unable to accede to this contention.  Their  Lordships
did  not decide, and it is not possible to think  that  they
would  make any such decision, that section 80 did  not  lay
down  a  rule of procedure but was a  piece  of  legislation
defining  substantive  rights. All that they said  was  that
section  80  was not mere procedure but was of  a  mandatory
character and more than this they did not say.
Further, it seems to me that suits between States and States
in  respect  of their political or public rights  and  which
were wholly outside the ambit of the Code of Civil Procedure
could  not be governed by a rule like,this which  aptly  ap-
plies to cases of private persons seeking to enforce private
rights  against  Government.  Parliament  while   conferring
original jurisdiction on
(1) L.R. 54 I.A. 338.
515
the Federal Court of India concerning these political rights
could  not  be  intended to clog the  enforcement  of  those
rights by the provisions of section 80 of the Code of  Civil
Procedure.  The only conditions precedent for the  maintain-
ability  of the suit are those laid down in section 204  and
the hearing of these suits has to be in accordance with  the
rules of procedure prescribed by the Federal Court of  India
under  the  provisions of section 214 of the  Government  of
India Act.
    Issue 7: This issue was not very seriously argued by the
learned counsel for the plaintiff.  The validity of  section
290-A  of  the Government of India Act was disputed  on  the
ground  that the assent of the Governor-General was not  ob-
tained  to  the  addition of this section in  the  Act.  The
section  was  added to the Government of India  Act  by  the
Constituent  Assembly  in  its sovereign  capacity  and  was
assented  to  by  the President of the Assembly. The Govern-
ment  of  India Act, 1935, was the Constitution Act  of  the
Dominion  of India and the Constituent Assembly was  author-
ized by the Independence Act to amend or alter it till  that
Assembly  framed  a permanent Constitution  for  India.  The
provisions of sections 6 and 8 of the Independence Act fully
bear  this out.  In my opinion, there is no validity in  the
contention  raised  on behalf of the  plaintiff  State  that
section 290-A was not a valid piece of legislation and  that
it  could  not become law till the assent of  the  Governor-
General  was  obtained in respect of it. This Court  has  no
jurisdiction  to examine the legislation passed by a  sover-
eign body.
    The result is that these suits, in my opinion, cannot be
disposed  of on the preliminary issues and must  proceed  to
trial  on the other issues. This order will also be  treated
as an order in all the other connected suits.