dedol-hf/india-case-legal-rag huggingface dataset:
that  agreement, all the actions, notifications  and  orders
referred  to  in the plaint proceeded "on the basis  of  the
supersession  of  the said Instrument of  Accession  by  the
consent  of  the  parties" and they were  legal,  valid  and
operative to bind the plaintiff.  In a supplementary written
statement  the defendants raised the plea that  "this  Court
had  no jurisdiction to entertain the suit having regard  to
the subject-matter of the suit and the provisions  contained
in article 363 (1) of the Constitution of India".
    On the 9th December, 1950, by consent of both sides,  it
was ordered by the Judge in Chambers that the suit should be
heard  on  the preliminary issue,  namely,  "whether  having
regard to the subject matter of the suit and the  provisions
contained  in article 363 (1)of the Constitution  of  India,
this  Court has jurisdiction to entertain the  suit".   When
the  matter was taken up for hearing on 5th March, 1951,  it
was  considered desirable that issues should be  settled  on
all matters in controversy in the suits, and all the  issues
relating to the maintainability of the suits, including  the
issue  of  jurisdiction,  should  be  tried  as  preliminary
issues,  and the suits were adjourned to the 7th  March  for
that  purpose.   The  parties then  filed  seventeen  agreed
issues as arising out of the
494
pleadings, and they further agreed that issues 1, 3, 4, 5, 6
and 7 might be tried first.  These issues are as follows:
    1.  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 ?
    3.  Whether the Federal Court had jurisdiction to enter-
tain  the suit under section 204 of the Government of  India
Act, 1935, and particularly in regard to the questions as to
the existence and validity of the agreement of merger ?
    4. Whether this Court has jurisdiction to entertain  the
suit?
    5.  Whether  the  suit is maintainable in  view  of  the
absence  of  the requisite notice to  the  defendants  under
section 80 of the Civil Procedure Code ?
    6.  Whether having regard to the provisions of the  Con-
stitution,  the plaintiff has a legal capacity and is  enti-
tled to maintain the suit ?
    7. Whether this Court is competent to examine the valid-
ity  of section 290-A of the Government of India Act,  1935,
enacted by the Constituent Assembly ?
    As I am of opinion that issue No. 1 should be found  for
the defendants and the suits must fail on that ground,
    I do not propose to consider the other issues,  although
arguments  have been addressed to us on all of them.     The
determination  of issue No. 1 turns on the proper  construc-
tion of articles 363 (1) and 374 (2) which read thus:
363(1)  Notwithstanding  anything in  the  constitution  but
subject  to the provisions of article 143, neither  the  Su-
preme  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
498
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 arising out of any of the provi-
sions  of  this Constitution relating to  any  such  treaty,
agreement,  covenant,  engagement, sanad  or  other  similar
instrument."
"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 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."
    As  already pointed out, the sheet anchor of the  plain-
tiffs' case is the Instrument of Accession, which, according
to  them, continues to operate in full force.  They  contend
that  "the Dominion of India or the Constituent Assembly  of
India  has no authority or power under the Indian  Independ-
ence Act or otherwise to enact section 6 of the  Constituent
Assembly  Act I of 1949 or to introduce section  290-A  into
the  Government of India Act, 1935, or to legislate for  the
plaintiff  State in any manner except with reference to  the
matters specified in the Schedule to the said Instrument  of
Accession"  (paragraph  18 of the plaint in Suit  No.  1  of
1950). They proceed to state that "the disputes between  the
parties  comprise and involve questions on which the  extent
or existence of a legal right depends and such disputes,  to
which  the  said Acceding State is a party,  concern  (among
other things) the extent of authority vested in the Dominion
by  virtue of the Instrument of Accession of  the  plaintiff
State."  And  prayer (b), to which reference has  been  made
already, is for "a declaration that the Dominion  Government
has no authority vested in it to assume any power or  juris-
diction  beyond the matters specified in the  Instrument  of
Accession" (paragraph 21).  These passages are reproduced in
all the plaints.  On the other hand, the mainstay of the
496
defence is the subsequent agreement of December 1947, and it
is  claimed  that the States Merger  (Governors'  Provinces)
Order,  1949, under which the impugned merger was  effected,
was  made  "on  the basis of the supersession  of  the  said
Instrument  of Accession by the consent of parties".   (Vide
paragraph 21 of the written statement of the first defendant
which  was adopted by the second defendant).  And,  although
the  defendants proceeded to state, on the aforesaid  basis,
that there was no dispute regarding the Instrument of Acces-
sion,  inasmuch as that basis is repudiated in the  plaints,
such  repudiation obviously raises the dispute  whether  the
Instruments  of  Accession are still in force or  have  been
superseded. That dispute "arising", as it does, "out of' the
Instrument  of Accession in each case falls within the  pur-
view of article 363 (1).
It  was  said  that the suits involved  also  certain  other
disputes  not  falling within article 363 (1) such  as,  for
instance, those relating to the agreement of December, 1947,
and  the validity of the Extra Provincial Jurisdiction  Act,
1947, of section 290-A of the Government of India Act, 1935,
and of the States Merger (Governors' Provinces) Order, 1949,
etc.  The  controversies  regarding these  matters  are  but
contentions  whereby the parties seek to establish,  on  the
one  hand,  that the Instrument of Accession  still  governs
their mutual rights and obligations and, on the other,  that
that Instrument stands superseded and is no longer in force.
Issues have no doubt been framed in regard to these  matters
but they cannot in my opinion, be considered to be  disputes
for  the purposes of article 131 or article 363  (1).  These
articles  deal  with  the jurisdiction of  courts  and  they
envisage  disputed claims to substantive legal  rights.  The
claims  in these suits are undoubtedly based on the  respec-
tive  Instruments  of  Accession  and  they  are  repudiated
because   those Instruments  of  Accession are said to  have
'been  superseded  by reason of the  alleged   agreement  of
December,  1947. These claims are disputes to which  article
363  (1) clearly applies.  The other so-called disputes  are
only incidental and ancillary controversies
497
raised  with a view to support or overthrow the  claims  and
cannot,  in  my opinion, affect the operation  of  the   bar
under that Article any more than, for instance, issue No.  5
relating to the necessity for notice to the defendants under
section 80 of the Civil Procedure Code.
    Nevertheless, it is contended, the article has no appli-
cation  here and it cannot operate retrospectively  and  ap-
plies only to disputes arising after the commencement of the
Constitution.  I am unable to accept this restricted  inter-
pretation of article 363 (1).  While the Article undoubtedly
postulates the  continued operation of the treaties,  agree-
ments,  etc., entered into or executed before the  commence-
ment of the Constitution and giving rise to the disputes, it
does  not require, as a condition of its  application,  that
such  disputes  should arise after the commencement  of  the
Constitution.   I see no reason for importing a  restriction
which  a  plain  grammatical construction  of  the  language
employed  does not warrant.  It is not correct to  say  that
the  wider  construction  would make the  operation  of  the
article  retrospective, for the bar to interference  by  the
court  operates only after the Constitution came into  force
irrespective of the disputes concerned having arisen  before
or after the commencement of the Constitution.   It was said
that  the article should not be construed so as to  bar  the
trial  of  pending suits or proceedings. But this is  not  a
case  of  a  pending action in a court  which  continues  to
function.  The Federal Court, in which the suits were  pend-
ing, and which had exclusive jurisdiction to deal with them,
was  abolished and a new court, the Supreme Court of  India,
was  created with original jurisdiction strictly limited  to
disputes relating to legal rights between  States recognised
as such under the Constitution.  But as the States specified
in Part B of the First Schedule had a semi-sovereign  status
before  the Constitution, agreements with them were  in  the
nature of international treaties and covenants, and disputes
arising out of them would not lie in municipal courts.  That
principle is given effect to, so far as the Supreme Court's
498
original jurisdiction is concerned, by the proviso to  arti-
cle  131 which defines such jurisdiction and, in  regard  to
all courts and in respect of all proceedings, by article 363
(1).  The reason for applying that principle is greater, not
less, in regard to such disputes arising bfore the Constitu-
tion when these States, then known as Indian States, enjoyed
a  higher  degree of political  freedom.   Furthermore,  the
construction  contended for by the plaintiffs as applied  to
article 131 would mean that the Court would, notwithstanding
the proviso, have jurisdiction in respect  of such disputes,
provided they arose before the commencement of the Constitu-
tion.  If that had been intended, one would expect that such
jurisdiction  would have been conferred by  positive  enact-
ment,  instead  of being left to be derived  by  implication
from  a  proviso intended to delimit the  jurisdiction  con-
ferred by that article.  It seems to me, therefore, that the
proviso  to article 131 must be construed as  applicable  to
disputes  of  the kind mentioned arising  both  before  and.
after  the   commencement   of  the  Constitution.   If  so,
article  363  (1) must receive the  same  construction,  the
language employed being essentially the same.
    Even so, it is next contended, article 368, which enacts
a  general  rule of non-interference by  courts  in  certain
classes of disputes, cannot control the operation of article
874 (2), which is a special provision providing that  suits,
appeals and proceedings pending in the Federal Court at  the
commencement of the Constitution shall stand removed to  the
Supreme  Court and that the Supreme Court shall have  juris-
diction  to  hear  and determine the same.  There  would  be
considerable  force  in this argument but  for  the  opening
words of article 363 (1), namely, "notwithstanding  anything
in  :this Constitution." These words clearly  indicate  that
the bar to the exercise of jurisdiction enacted  in  article
363  controls the operation  of article 374 (2)and  excludes
the rule of construction invoked by the plaintiffs.
I find issue No. 1 for the defendants.
499
    MAHAJAN  J.--On the 16th January, 1950, ten days  before
the inauguration of the Constitution of India, the State  of
Seraikella  (an Orissa State attached to the Eastern  States
Agency) brought a suit in the Federal Court of India against
the  Dominion  of India and the Province of  Bihar  for  the
following reliefs:
    (a)  Interpretation  of the relevant provisions  of  the
Government of India Act, 1935, the Indian Independence  Act,
1947, and of the States Merger (Governors' Provinces) Order,
1949;
    (b)  Declaration  that the Dominion  Government  has  no
authority  vested in it to assume any power or  jurisdiction
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 on the Provincial Government
of Bihar or Orissa;
    (c)  Declaration that the Extra Provincial  Jurisdiction
Act, XLVII of 1947, the Constituent Assembly Act, 1 of 1949,
section 290-A of the Government of India Act,. 1935, and the
States Merger  (Governors' Provinces) Order, 1949, are ultra
vires,  illegal and inoperative in so far as they  are  made
applicable  to  the  plaintiff  State  and that  all  orders
made  or  purported to be made and/or all actions  taken  or
purported to be taken thereunder are also illegal and  inop-
erative;
    (d)  Declaration that the Province of Bihar has  no  au-
thority  or jurisdiction to carry on the  administration  of
the plaintiff State and that the alleged merger of the  said
State  in the Province of Bihar is illegal and  unauthorized
and is not binding on the said State and its Ruler;
    (e)  Declaration as to the rights of the parties and  as
to  the  extent of authority  of the defendant  Dominion  of
India over and in respect of the plaintiff States;
    (f)  Declaration  that the plaintiff State  retains  its
entity  and  territorial integrity that  its  administration
should  in any event be carried on in the name of its  Ruler
and that his rights and privileges as set out in
500
annexure "C" and his private properties as set out in annex-
ure ''D" remain unaffected;
    (g)  Declaration that the Province of Bihar has  no  au-
thority or jurisdiction over the plaintiff State and that it
should  not interfere in any way with the said State or  the
sovereignty of its Ruler."
    All  the  different reliefs set out above  in  substance
converge  on the relief stated in clause (f). The  plaintiff
wants  a declaration from this court to the effect that  the
State  of  Seraikella  retains its  entity  and  territorial
integrity  and  has  not integrated itself with the territo-
ries of the Indian Dominion.
This  suit was pending in the Federal Court on the  26th
January, 1950, and under the provisions  of article 374  (2)
of  the  Constitution it has to be heard and  determined  by
this  Court.  The plaintiff claims the above reliefs on  the
following allegations:
    (1)  That on the 16th August, 1947, the plaintiff  State
acceded   to  the Dominion of  India under the terms  of  an
Instrument of Accession (Exhibit A) executed  by  its  Ruler
and   accepted  by  the Governor-General of India, that  the
said   instrument  could not be added to or  amended  unless
such  addition or amendment was accepted by the Ruler by   a
supplementary   Instrument;   that  no   such  supplementary
Instrument was ever executed or accepted by the Ruler;
    (2)  That  from  31st August, 1947,  the  Government  of
Orissa  wrongfully and  illegally  purported  to  administer
the  plaintiff State by virtue of an alleged  delegation  of
authority by the Dominion Government by a notification dated
23rd  December, 1947, issued under an Act called  the  Extra
Provincial  Jurisdiction Act, XLVII of 1947, that  the  said
Act  is ultra vires and of no effect and does not  bind  the
plaintiff and that the Act was not authorised by the Instru-
ment of Accession;
    (3)  That the defendant claims to rely for the  validity
of its wrongful acts on an alleged agreement of 15th  Decem-
ber, 1947, but the same is void and
501
inoperative  and that it never became a  concluded  contract
between the parties;
    (4)  That on the 18th May, 1948, the Province  of  Bihar
wrongfully and illegally took over the administration of the
State and issued an administrative order under Act XLVII  of
1947, that the Dominion of India had no authority beyond the
Instrument  of Accession to delegate its power to the  Prov-
ince of Bihar to administer the plaintiff State;
    (5)  That on the 26th July, 1949, the  Governor  General
wrongfully  and  illegally promulgated an order  called  the
States  Merger  Order  of 1949, under which  the  State  was
illegally  merged in the Province of Bihar, that this  order
was made under section 290-A of the Government of India  Act
which section was introduced in that Act by section 6 of the
Constituent  Assembly Act, I of 1949, which was ultra  vires
and illegal, that the Dominion of India had no authority  to
bring  the plaintiff State within the provisions of  section
290-A  of the Government of India Act, that the  Constituent
Assembly  Act, I of 1949, was inoperative as it was  enacted
without the consent of the Governor-General, that the Merger
Order prejudicially affects the existence and entity of  the
State, its position and status and goes beyond the ambit  of
section  290-A.   Shorn of all its verbiage, the  plaint  in
substance  denies the agreement of the 15th December,  1947,
on the foot of which the plaintiff State was integrated with
the  territories of the Indian Dominion and on the basis  of
which  Act XLVII of 1947 was made applicable to it, and  the
notifications  mentioned in the plaint were issued.  On  the
basis of the same  agreement section 290-A of the Government
of  India  Act  was also made applicable  to  the  plaintiff
State. By  reason of the denial of the agreement of the 15th
December it is asserted by the plaintiff that the actions of
the Dominion Government in first merging the plaintiff State
with the Province of Orissa and subsequently merging it with
the State of Bihar is unlawful and illegal; in other  words,
the plaintiff alleges that in the absence Of any  supplemen-
tary agreement as contemplated by
502
section 6, sub-section (3), of the Government of India  Act,
1935,  the Dominion of India had no authority whatsoever  to
bring the plaintiff State within the ambit of the  different
statutes mentioned above and that all its acts in  depriving
the  State  of its legal entity are acts in  excess  of  the
terms  of the Instrument of Accession and amount to  usurpa-
tion  of  the sovereignty of the plaintiff State  which  was
retained by it under that Instrument and that being so,  the
plaintiff  is entitled to a declaration from this  Court  to
the effect that the plaintiff State still retains its entity
and  territorial integrity and that the various  orders  and
laws  under which it has been integrated with the  State  of
Bihar are void and ultra vires and are acts of  encroachment
on the sovereignty of the State. Shortly stated, the  plain-
tiff seeks by this suit to specifically enforce the terms of
the Instrument of Accession by denying the existence of  the
agreement  of 15th December, 1947, or by pleading its  inva-
lidity.
    The  suit brought against the Dominion of India and  the
Province  of  Bihar has now to be continued  and  determined
against  the Government of the Union of India and the  State
of  Bihar  in view of the provisions of article 300  of  the
Constitution.  Both  the defendants contested  the  suit  on
similar  grounds.  The following agreed issues  between  the
parties  bring out the points in dispute that arise  out  of
the pleadings:
    1.  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 ?
    2. Whether I the plaintiff had ceased to be an  acceding
State and a distinct legal entity at the date of the  insti-
tution of the suit ?
    3. Whether the Federal Court had jurisdiction to  enter-
tain  the suit under section 204 of the Government of  India
Act, 1935, and particularly in regard to the questions as to
the existence and validity of the agreement of merger ?
503
    4. Whether this Court has jurisdiction to entertain  the
suit ?
5.  Whether  the  suit is maintainable in  view  of  the
absence  of  the requisite notice to  the  defendants  under
section 80 of the Civil Procedure Code ?
    6.  Whether having regard to the provisions of the  Con-
stitution,  the plaintiff has a legal capacity and is  enti-
tled to maintain the suit ?
    7. Whether this Court is competent to examine the valid-
ity  of section 290-A of the Government of India Act,  1935,
enacted by the Constituent Assembly?
8.  Whether  the States  Merger  (Governors'  Provinces)
Order dated the 27th July, 1948, made by the Governor-Gener-
al under section 290-A of the Government of India Act, 1935,
is valid and competent ?
    9. Whether the Extra Provincial Jurisdiction Act,  1047,
was ultra vires and invalid ?
    10.  Whether the delegation of authority by the  Govern-
ment  of India to the Government of Orissa was  ultra  vires
and illegal ?
    11.  Whether the Constituent Assembly was  competent  to
enact  the  Constituent  Assembly Act I of  1949  under  the
provisions of the Indian Independence Act ?
    12. Whether the Seraikella and Kharsawan States  (Amend-
ment  Act) Order, 1948, is ultra vires and goes  beyond  the
ambit of the Extra Provincial Jurisdiction Act, 1947 ?
 13. Whether the plaint discloses any cause of action ?
14.  Whether the agreement dated 15th December, 1947, is   a
concluded agreement between the parties ?
 15.  Whether  the agreement dated 15th December,  1947,  is
void and inoperative for want of consideration ?
16. Whether the agreement dated I5th December, 1947, is  a
political agreement and not a civil contract?
    17.  Whether  the administration of  the  plaintiff  was
handed over to the Government of Bihar under
65
504
Notification No. 217-P dated 18th May, 1948, in consultation
with the Ruler of the plaintiff State ?
    With  the  consent  of parties it was  decided  to  hear
arguments on issues 1, 3, 5, 6 and 7 as they could be decid-
ed without taking any evidence.
    Issue 1: As regards this issue, it was contended by  the
learned Attorney-General that this Court has no jurisdiction
"to determine 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 by any Ruler  of  an
Indian State and to which the Government of the Dominion  of
India... ...was a party and which has or has been  continued
in  operation  after  such  commencement...,  and  that  the
present suit relates to a dispute of this nature and  though
the  suit is removed to the records of this Court  from  the
Federal  Court, this Court must decline to hear it.  Article
363 on the basis of which this contention is raised provides
thus:
    "Notwithstanding  anything  in  this  Constitution   but
subject  to the provisions of article 143, neither  the  Su-
preme  Court nor any other court shall have jurisdiction  in
any dispute arising out of any provision of a treaty, agree-
ment   .........  which was entered into or executed  before
the  commencement  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  ......  ''