dedol-hf/india-case-legal-rag huggingface dataset:
agreement  of the 15th December, 1947, is admitted  to  have
been executed by the Ruler and is admitted to be binding  on
the plaintiff.
    The  material  part of section 6 of  the  Government  of
India Act, 1935, which provides for the accession of  Indian
States, runs as follows :-
  6.  Accession of Indian States.--(1) An Indian State shall
be  deemed to have acceded to the Dominion if the  Governor-
General  has  signified his acceptance of an  Instrument  of
Accession executed by the Ruler thereof whereby the Ruler on
behalf of the State :--
    (a)  declares that he accedes to the Dominion  with  the
intent that the Governor-General, the Dominion  Legislature,
the  Federal Court and any other Dominion  authority  estab-
lished for the purposes of the Dominion shall, by virtue  of
his  Instrument  of Accession, but, subject  always  to  the
terms  thereof, and for the purposes only of  the  Dominion,
exercise  in relation to the State such functions as may  be
vested in them by order under this Act; and
     (b) assumes the obligation of ensuring that due  effect
is  given within the State to the provisions of this Act  so
far as they are applicable therein by virtue of the  Instru-
ment of Accession.
    (2) An Instrument of Accession shall specify the matters
which the Ruler accepts as matters with respect to which the
Dominion  Legislature may make laws for the State,  and  the
limitations, if any, to which the
483
power  of  the  Dominion Legislature to make  laws  for  the
State,  and the exercise of the executive authority  of  the
Dominion in the State, are respectively to be subject.
    (3) A Ruler may, by a supplementary Instrument  executed
by  him and accepted by the Governor-General, vary  the  In-
strument  of Accession of his State by extending  the  func-
tions which by virtue of that Instrument are exercisable  by
any Dominion authority in relation to his State.
*                   *                              *
    (5) In this Act a State which has acceded to the  Domin-
ion  is referred to as an Acceding State and the  Instrument
by virtue of which a State has so acceded, construed togeth-
er  with  any supplementary Instrument executed  under  this
section,  is referred to as the Instrument of  Accession  of
that State  ......  "
    A supplementary Instrument executed under subsection (3)
by  the  Ruler and accepted by the Governor General  is,  by
virtue of sub-section (5), therefore to be considered a part
of the Instrument of Accession of that State. The supplemen-
tary Instruments signed by the four States only bring within
the  scope of discussion those supplementary Instruments  on
the  footing  that  they were a part of  the  Instrument  of
Accession.
    Written  statements  have been filed on  behalf  of  the
defendants contesting the contentions raised in the  plaint.
There are several contentions in respect of the jurisdiction
of the Court.  Several contentions cover pure issues of  law
and some raise issues of fact in respect of the document of
15th  December, 1947. The parties agreed on the  issues  and
they have been filed in Court. It was further agreed between
the parties that issues 1, 3, 4, 5, 6 and 7 may be tried  as
preliminary issues and we have heard counsel on those issues
fully.  The first issue is in these terms:
    "Whether,  having  regard to the subject-matter  of  the
suit and the provisions contained in article 363 (1) of  the
Constitution  of India, this Hon'ble Court has  jurisdiction
to entertain the suit."
484
In  the  view  I take of this issue I do  not  think  it
necessary to discuss the other preliminary issues raised  on
the question of jurisdiction. For determining this issue, it
may  be noted that the Federal Court, prior to the  26th  of
January,  1950,  had  original jurisdiction  in  respect  of
matters  covered by section 204 of the Government  of  India
Act.  Under that section, that Court had jurisdiction in any
dispute between a State and the Dominion if and in so far as
the  dispute involved any question (whether of law or  fact)
on  which  existence or extent of a  legal  right  depended,
provided  that  the said jurisdiction did not  extend  to  a
dispute to which a State was a party unless the dispute  was
covered  by  clause (a) (i) of the Proviso,  which  runs  as
follows :--
    "Provided  that the said jurisdiction shall  not  extend
to-
    (a)  a dispute to which a State is a party,  unless  the
dispute-
(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..."
The  rest of the section is not material.   Section  204
(2)  provided that the Federal Court in the exercise of  its
original jurisdiction shall not pronounce any judgment other
than  a  declaratory judgment.  The suit having  been  filed
prior  to the 26th of January, 1950, the suit  stood  trans-
ferred to this Court under article 374 (2) of the  Constitu-
tion of India.  That article runs as follows:-
    " 374. (2) 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 determine the same, and the
485
judgments and orders of the Federal Court delivered or  made
before the commencement of this Constitution shall have  the
same force and effect as if they had been delivered or  made
by the Supreme Court."
    Article 131 of the Constitution deals with the  original
jurisdiction  of the Supreme Court and its material  portion
runs as follows :--
"Subject to the provisions of this Constitution, the Supreme
Court  shall   .....  have  original  jurisdiction  in   any
dispute  ......
    (b)  between  the Government of India and any  State  or
States  on  one  side and one or more other  States  on  the
other  ......
if  and  in  so far as the  dispute  involves  any  question
(whether  of law or fact) on which the existence of a  legal
right depends:
    Provided that the said jurisdiction shall not extend  to
(i)  a dispute to which a State specified in Part B  of  the
First  Schedule is a party if the dispute arises 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 this  Constitution  and
has or has been continued in operation after such  commence-
ment."
    The States specified in Part B of the First Schedule  do
not mention any of the plaintiff States. Article 363 of  the
Constitution of India runs as follows :--
    "363.  (1) Notwithstanding anything in this Constitution
but  subject to the provisions of article 143,  neither  the
Supreme Court nor any other court shall have jurisdiction in
any dispute arising out of any provision of a treaty, agree-
ment,  covenant, engagement, sanad or other similar  instru-
ment which was entered into or executed before the commence-
ment  of this Constitution by any Ruler of an  Indian  State
and to which the Government of the Dominion of India or  any
of its predecessor Governments was a party and which has  or
has been continued in operation after such commencement,  or
in any dispute in respect of any right accruing under or any
liability or obligation
486
arising  out of any of the provisions of  this  Constitution
relating  to any such treaty, agreement, covenant,   engage-
ment,  sanad  or other similar instrument.   '
 (2) In this  article
(a)  'Indian  State' means any  territory  recognised
before the commencement of this Constitution by His  Majesty
or  the Government of the Dominion of India as being such  a
State;  and
     (b)  'Ruler' includes the Prince, Chief or other  person
recognised  before such commencement by His Majesty  or  the
Government  of  the Dominion of India as the  Ruler  of  any
Indian State."
    The first question arising for consideration is the true
interpretation  of  article 374 (2) of the  Constitution  of
India.   It was argued that the Federal Court had  jurisdic-
tion  to try the suit as framed before the  Constitution  of
India came into operation.  Under article 374 (2) that  suit
stood  removed  to  the Supreme Court and  the  question  of
jurisdiction to try this suit at the present stage has to be
determined  only  having regard to the jurisdiction  of  the
Federal Court, because the trial of the suit was transferred
to the Supreme Court under this article.  It was argued that
if  there  was  any limitation on the  jurisdiction  of  the
Supreme  Court  to hear such a suit, (if  instituted  in  it
under  its  original jurisdiction), such limitation  is  not
relevant  to be considered in respect of suits  which  stood
transferred to the Supreme Court under article 374 (2).   In
other words, in respect of such suits the Supreme Court  had
a  wider jurisdiction as compared with the  jurisdiction  of
the  Federal  Court,  if its jurisdiction  is  construed  as
limited by virtue of the different articles of the Constitu-
tion.   In this connection, some reliance was placed on  the
use  of the word 'jurisdiction ' as connected with  the  Su-
preme Court in article 374 (2). In my opinion, this argument
is  unsound. Article 374 is in the Part dealing with  tempo-
rary and transitional provisions.  In article 374 (1) it  is
provided that the Judges of the Federal Court holding office
before  the  commencement of the Constitution,  unless  they
have
487
elected  otherwise,  become  Judges of  the  Supreme  Court.
Article 874 (2), in my opinion, similarly provides, firstly,
for the removal of all suits, appeals and proceedings, civil
or  criminal,  pending in the Federal Court to  the  Supreme
Court  and, secondly, provides that the Supreme Court  shall
have  jurisdiction to hear and determine these matters.   It
may  be  noticed that in this clause provision is  made  not
only  in respect of suits but of civil and criminal  appeals
and  also of other pending proceedings.   By providing  only
for   the  removal of these matters to  the  Supreme  Court,
there  will  remain a lacuna, if it was not  further  stated
that after such removal the Supreme Court shall have  juris-
diction  to try the matters.  It is from that point of  view
only that, in my opinion, the  Constitution states that  the
Supreme Court shall have jurisdiction to hear and  determine
the same.  I think it is not correct to read those words  as
giving  to  the Supreme Court an  extended  jurisdiction  in
these  matters.  Two stages have therefore to be  considered
in determining the operation of this clause: (1) whether the
suits, appeals or proceedings, which were pending before the
Federal  Court, were within the jurisdiction of the  Federal
Court;  and  (2) whether on removal the  Supreme  Court  has
jurisdiction to hear and determine the same having regard to
all  the  provisions  of the Constitution  relating  to  the
jurisdiction  of the Supreme Court. It must be noticed  that
the Supreme Court was a new Court established by the Consti-
tution of India. It had no existence before that. The juris-
diction  of  that Court has therefore to be  ascertained  by
considering all the relevant articles of the Constitution of
India.   It is in that light that the provisions of  article
363 have to be read and interpreted.
    Before doing so I think it is essential to bear in  mind
the  political  background. Prior to August,  1947,  British
India,  as  it was then described, was  governed  under  the
Government  of India Act, 1935. Indian States, as they  were
then described, were independent States not governed by  the
Government  of India. They were under the suzerainty of  His
Majesty the King and their
488
administration was controlled under the advice of the Polit-
ical  Department of the Government of India, on the  footing
that  the King was the Sovereign and had the right to  exer-
cise  suzerain powers over those States. On the  passing  of
the  Indian  Independence Act, 1947, from the  15th  August,
1947,  the  British Parliament and the King ceased  to  have
power to make any laws for India or make any changes in  its
Constitution.  These  were  left to India.  As  regards  the
Indian  States, while provision continued in the  Government
of  India Act for the Rulers signing instruments  of  acces-
sion, no suzerain rights were given to the Dominion of India
by the Indian Independence Act.  If, therefore, the Dominion
of India or any of these States committed acts of aggression
or  territorial trespass, there was no law, the  enforcement
of  which could give either party a relief and there was  no
court  also which could give such a relief. Section  204  of
the Government of India Act also did not provide any  relief
to any of these Indian States unless they signed an  Instru-
ment  of Accession. With the passing of the Constitution  of
India,  India  became a Sovereign Independent  Republic.  If
that  Dominion or Republic committed any acts of  aggression
towards a neighbouring Indian State (as it is convenient  to
describe  under the circumstances) the Supreme Court has  no
jurisdiction to give relief to the Indian State. As  noticed
above,  its  jurisdiction under article 131 is  limited  and
even in respect of a State specified in Part B of the  First
Schedule  if  a  dispute arises out of any  provision  of  a
treaty,  agreement,  covenant, engagement,  sanad  or  other
similar instrument, it will not be entertained by this Court
if  the conditions of the proviso apply  to the same. It  is
with this background that we have     to read article 363 of
the Constitution.
    The opening words of that article in terms override  all
provisions of the Constitution, but are made subject only to
the provisions of article 143 which enables the President to
consult the Supreme Court on matters referred to it.   These
all embracing opening words of article 363 therefore clearly
override the operation  of
439
article  374(2) also. The result is that article 363 is  the
controlling article over article 374(2) also. The  jurisdic-
tion  of  the Supreme Court having been stated  in  articles
131-1a6, article 363 provides that notwithstanding  anything
contained  in those articles and other articles of the  Con-
stitution,  neither  the Supreme Court nor any  other  court
will  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 this Constitution  and
which  has  or has been continued in  operation  after  such
commencement. If therefore the dispute arises in respect  of
a document of that description and if such document had been
executed before the Constitution by a Ruler and which was or
had  continued  in operation after such  commencement,  this
Court  has no jurisdiction to determine such issue.  It  was
argued  that as the agreement had to be in  operation  after
the  commencement of the Constitution, no dispute can  arise
in  respect of such document before the commencement of  the
Constitution  and  therefore as the dispute in  the  present
case had arisen before the commencement of the Constitution,
article  363 had no operation. In my opinion, this is not  a
correct  reading   of article 363 (1). The  time  factor  is
related  only to the document in question and not  the  dis-
pute.   It is provided that such document should  have  been
executed before the Constitution came into force and has  to
be  in  operation after the Constitution, but  the  dispute,
which  is  the subject-matter of the litigation,  may  arise
before or after.
    It  was argued that the article is prospective  and  not
retrospective.  Therefore it only covers the cases which are
filed in the Supreme Court after the Constitution comes into
force  and does not affect suits filed in the Federal  Court
before the Constitution of India came into operation.  In my
opinion  this argument is based on a mistaken meaning  given
to  the words "prospective" and "retrospective ". It is  not
disputed that the Constitution is prospective.  The question
however
490
is that the Supreme Court having been created by the Consti-
tution  itself, on the day the Court proceeds  to  determine
the matter, what, according to the Constitution of India, is
the jurisdiction of this Court. This approach does not  make
the  provision retrospective. In this connection, the  simi-
larity  in language of articles 368 (1) and 131 proviso  (i)
may  be  noted.  Considered in that way, the  only  question
which  remains for decision is whether on the  structure  of
the  plaint, 'the dispute raised by the suit arises  out  of
the provision of a treaty, agreement, covenant,  engagement,
sanad  or any other similar instrument. I have  already  no-
ticed above that the dispute in respect of the agreement  of
the  15th  December,  1947, is immaterial  for  the  present
discussion. If the plaintiff repudiates that agreement he is
seeking  to enforce his rights after ignoring the same.   If
the  plaintiff (as noticed in four of the suits)  relies  on
this  agreement,  it  becomes a part of  the  Instrument  of
Accession  under  section 6 (5) of the Government  of  India
Act, 1935, and the dispute will still have to be  considered
having  regard to the terms of the two documents, viz.,  the
original  Instrument  of  Accession  and  the  supplementary
Instrument.   The  question  thus resolves  itself  into  an
analysis  of the plaint and to find out what  the  plaintiff
seeks to get by his suit. Apart from the fact that in  pray-
ers (f) and (g) of his plaint he seeks to enforce his rights
under  the Agreement of the 15th December, 1947, it  appears
clear  that  the whole ambit of the suit is to  enforce  his
Instrument of Accession. The plaintiff contends firstly that
it had signed the Instrument of Accession through its Ruler.
The  State  next complains that, acting  beyond  the  powers
given  over under the Instrument of Accession, the  Dominion
of  India and the State of Bihar are trespassing  wrongfully
on its legislative and executive functions, that the  Domin-
ion  of India and the State of Bihar are making  laws  which
they have no power 'to make, having regard to the Instrument
of Accession, and are wrongfully interfering with the admin-
istration of the State beyond the rights given to them under
the Instrument of Accession. The whole plaint is
491
nothing  else  except the claim to enforce  the  plaintiff's
right under the Instrument of Accession. The dispute  there-
fore in my opinion clearly is in respect of this  Instrument
of  Accession and is covered by article 363 (1) of the  Con-
stitution  of  India. The question of  the validity  of  the
different enactments and orders is  also based on the rights
claimed  under  the Instrument of Accession so  far  as  the
plaintiff  is concerned. On the side of the defendants,  the
position is that they admit the Instrument of Accession  and
they  do  not claim that they are  exercising  the  disputed
rights  under that Instrument. Their contention is that  the
Agreement of the 15th of December, 1947, was validly  signed
and  is binding and enforceable against the  plaintiff.  The
defendants contend that  their action in passing the disput-
ed legislation and orders and the action in taking over  the
administration  are  all  based on that  Agreement  of  15th
December,  1947.  If the plaintiff contends that   Agreement
is not binding on it, it cannot enforce its rights under the
original jurisdiction of the Court.  If the plaintiff has  a
grievance  and  a  right to a relief  which  the  defendants
contend  it  has not, the forum to seek redress is  not  the
Supreme  Court exercising its original jurisdiction  on  the
transfer  of the suit from the Federal Court.  According  to
the defendants, the situation in those circumstances will be
of a Sovereign  Independent State trespassing on the  terri-
tories, powers and privileges of another neighbouring  inde-
pendent  State. To redress a grievance arising out  of  such
action  on the part of the defendants, the Supreme Court  is
not the forum to give relief.  The issue is answered in  the
negative, costs  in the cause.
VIVIAN Bose J.--I agree.
    PATANJALI SASTRI J.--This is a batch of suits brought by
plaintiffs  claiming to be Acceding States for  certain  de-
claratory  reliefs in regard to the alleged wrongful  merger
of  their respective territories in the territories  of  the
adjoining  Provinces of Bihar and Orissa.  The  Dominion  of
India was impleaded as the
492
first  defendant, and the Province of Bihar or the  Province
of Orissa, as the case may be, as the second defendant.
    The suits were instituted in the Federal Court of  India
under  section  204 of the Government of  India  Act,  1935,
shortly  before  the commencement of the  new  Constitution.
Apart  from certain minor variations, the substance  of  the
plaintiff's  case in each suit, shorn of verbiage,  is  that
the merger and the taking over of the administration of  the
territory  concerned, carried out in purported  exercise  of
powers conferred by the States Merger (Governors' Provinces)
Order,  1949,  made by the Governor-General of  India  under
section  290-A of the Government of India Act, 1935,  was  a
breach of the terms of the Instrument of Accession  executed
by the Ruler and accepted by the Governor General in August,
1947,  which continued the sovereignty of the Ruler  in  and
over the State, and that all notifications, orders or enact-
ments issued or made in violation of the rights and  obliga-
tions flowing out of that Instrument were ultra vires,  void
and  inoperative.  In the plaints in Suits Nos. 1, 2  and  8
reference was made to an agreement entered into between  the
Governor-General and the Ruler concerned in December,  1947,
and it was alleged that it was inoperative and void  because
it  was  not  a concluded agreement and, in  any  case,  not
supported by consideration.  In the other Suits Nos. 4, 5, 6
and  7 that agreement was fully admitted, but "in  spite  of
the agreement aforesaid" it was contended that "the  actions
taken  by the defendants including the promulgation  of  the
orders, notifications and legislation mentioned here in  are
wrongful,  illegal and ultra vires". The crucial  prayer  in
all the suits was "a declaration that the Dominion of  India
has no authority vested in it to assume any power or  juris-
diction  beyond the matters specified in the  Instrument  of
Accession  and  had no authority to delegate  any  power  or
powers in relation to the plaintiff State to the  Provincial
Government"  of Bihar or of Orissa, as the case may be.  The
other reliefs asked for were merely ancillary and consequen-
tial.
493
    The  defence,  in the main, was based on  the  aforesaid
agreement  of December, 1947, under which, it  was  alleged,
the plaintiff in each case "ceded full and exclusive author-
ity,  jurisdiction  and powers for and in  relation  to  the
governance of the plaintiff to the Government of India  with
effect  from 1st January, 1948". It was claimed  that,  from
that  date and particularly from January 26, 1950, when  the
Constitution of India came into force and made the territory
of  the plaintiff an integral part of the territory  of  the
State  of  Bihar  (or of Orissa, as the case  may  be),  the
plaintiff  ceased  to be a distinct legal unit  and  had  no
capacity  to  maintain the suit. The said  agreement  was  a
political  agreement  and  not a  civil  contract  requiring
consideration for its effectiveness and, in any case, was  a
concluded  agreement supported by consideration. In view  of