. ·• ' \ \ .

'. \ ''' 164

SUPREME COURT .REPORTS [1955]

 1955 High Court already pronounced against his conviction after a full hearing in the presence of both the parties . u.!.s~hoJ>ra on notice being issued by the High Court in that bestate of &mbay half.· This right of his is not curtailed by anything contained in the earlier provisions of section 439 nor BhagwatiJ. by anything contained in either section 369 or section ·· 430 of the Criminal Procedure Code.

A}ril 6

We are therefore of the opinion that the decision reae, hed by the High Court of Bombay in the case under appeal was wrong and must be reversed. We accordingly allow the appeal and remand the matter back to the High Court ofJudicatureatBombaywith . a direction that it shall allow the Appellant to show cause'against his conviction and dispose of the same ticcording tq law. ·· ·

BY THE CouRT.-The appeal is allowed and the order of the High Court of Bombay is . set aside, and thematter is sent back to the High Court with a direction that it shall allow the appellant an opportunity to show cause against his conviction and dispose of the matter according to law. .

l\IAHARAJ UMEG SINGH AND OTHERS

THE STATE OF BOl\IBAY AND OTHERS.

[l\ImrnERJEA, C.J., DAS, BHAGWATI, VENKATARAMA

 AYYAR and JAFE~ lllIAM JJ.]

Bombay Merged Territories and Areas (J agirs Abolition) Act, 1953 (Bombay Act XXXIX of 1954)-Whether ultra vires-Agreement of Merger with, and letters of guarantee to, .Rulers of States by the G<YL- . ernment of India-Clause 5 of the letters of guarantee-Scope-Legislative powers of States under Article iU6 of the Constiiution-Limita• tion• thereon-Article'363 of the Constitution-Bar to Courts' jurisdiction-Fundamental rights-Articles 14, 19(1)(/), 31(2) of Con stitution-Applicability in view of Article 81-A(2)( a). · ·

Under Article 246(2) and (3) of the Constitution, the Legislature of a State has plenary powers to legislate with respect to matters enumerated in Lists II and III of the Seventh Schedule to

he Co11stitutio11.

The legislative competence of the State Legisl~·

ture can only be circumscribed hy express prohibition contained in the Constimt[on itsdf and u.nless there is any provision in the Constitution expressly prohibiting legislation on a subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the State Legislture enjoys to legislate on the ropics enumerated in Lists II and III of the Seventh Schedule to the Consticution. In view of Ar.icle 246 of the Constitution, no curtailment of legislative competence can be spelt out of the terms of Clause 5 of the Letters of Guarantee given by the Dominion Government to the Rukrs of "States" subsequent to the agreemnts of Merger, which guaranteed, inter alia, the continuance of Jagirs in the merged "St1tes". Indeed, Clause 5 of the Letters of Guarantee itself saved the legislative right of the State of Bombay subject to the limitation that enactments of the State shall not be discriminatory in nature.

Attac1<s on the validity of the said Act on the basis of the rights guaranteed by Articles 14, 19(l)(f), and 32(2) of the Constitution cannot be countenanced in view of Article 31-A(2)(a) of the Constitution.

Article 363 (1) of the Constitution barred the jurisdiction of Courts in disputes arising out of any provision of the agreements of merger and the Letters of Guarantee.

Held, that Bombay Act XXXIX of 1954, the impugned Act, was intra vzres the State Legislature.

Petitions Nos. 337 to 349, 365, 366, 481 and 690 of 1954 Dismi, sed.

Petition No. 364 of 1954 Adiourned.

Vajesingji v. Secretary of State (51 I.A. 357), Secretary of State v. Sardar Rustam (68 I.A. 109),_ State of Savaiella v. Union of India (1951 S.C.R. 474), Thakur Jagannath v. The United Provinces ([1943] F.C.R. 72), Thakur Jagannath v. The United Provinces ([1946] F.C.R. 111), referred to.

0RIGWAL JurusmcnoN: .Petitions under Article 12 of the Constitution for the enforcement of fundamental rights

K. L. Ga11ba, (Gopal Singh, with him), for the Petitioners in Petitions Nos. 337 to 343 and 481 of \954.

K. l. Gauha, (S. D. Sekhri, with him), for the Petitioners in Petitions Nos. 344, 446 and 349 of 1954.

K. l. Gauba. (R. Patnaik and S. D. Sekhri, with himL for the Petitioner in Petition No. 345 of 1954.

22-8 SCJ/ND.'82

19$5

Maharaj -Umeg Singh and "'thers

The State ef Bombay and otkrs

Maharaj Umeg Sin, I• dhd otltrs

v •

K .. L. Gauba, (N. C. Chakravarthy and S, D.

Sekhri, with him), for the Petitioner in Petition No. 347 of 1954.

.so~%;':,; d:{hers K. L. Gauba, (8. Moropant and S. D. Sekhri, with him), for the Petitioner in Petition No. 348 of 1954.

Rajni Patel and M. S. K. Sastri, for the Petitioner in Petition No. 364 of 1954.

Rajni Patel and I. N. Shroff, for the Petitioners in Petitions Nos. 365 and 366 of 1954.

 J. 8. Dadachanji and Rajinder Narain, for the Petitioner in Petition No. 690 of 1954.

M. C. Setalvad, Attorney-General for India, C. K.

Daphtary, Solicitor-General for India (P. 4. Mehta, R. H. Dhebar for P. G. Gokhale, with them), for the Respondents in all Petitions.

1955. April 6. The Judgment of the Court was delivered by

BHAGWATI J.-These petitions under article 32 of the Constitution are directed against the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953, Bombay Act XXXIX of 1954 which was passed by the Legislature of the State of Bombay to abolish jagin in the merged territories and merged areas in the State of Bombay. The Bill. was passed by the Legislature on the .22nd September 1953 and received the sanction of the Upper House on the 26th September

1953. The President gave his assent to it on the 13th June 1954 and by a notification dated the 15th July 1954 it was brought into effect from the !st August

1954. In view of the notification the Petitioners filed these petitions on the 30th July 1954 challenging the vires of the Act (hereinafter called the impugned Act) and asking for the issue of appropriate writs restraining inter alia the State of Bombay from giving effect to its provisions. On application~ made to this CQurt on the 31st July 1954 the operation of the impugned Act was stayed pending the hearing and final disposal of the petitions,

The Petitioners in Petitions Nos. 337, 344, 345, 346, 195$ 347 and 349 of 1954 are relations of the Ruler of the Mdharai Umet erst while State of Idar. The Petitioners in Petitions Sinth and o111ers Nos. 338 and 342 of 1954 are relations of the Ruler of The Stte of the erstwhile State of Chhota Udaipur. The Peti- Bombayandother tioners in Petitions Nos. 339 and 341 are relations of the Ruler of the erstwhile State of Devgad Baria. The Petitioner in Petition No. 343 of- 1954 is a relation of the Ruler of the erstwhile State of Rajpipla. The Petitioners in Petition No. 340 of 1954 are jagirdars of the erstwhile State of Rajpipla. The Petitioner in Petition No. 3415 of 1954 is a relation of the Ruler of the erstwhile State of Ba:nsda. The Petitioners in Petitions Nos. 365 and 366 of 1954 are jagirdars of the erstwhile States of Idar and Lunawada respectively. The Petitioner in Petition No. 481 of 1954 is a relation of the Ruler of the erstwhile State of Mohanpur. The Petitioners n Petition No. 690 of 1954 are the holders of personal Inams from the erstwhile State of Rajpipla.

All the petitioners except the last claim to be hereditary jagirdars under grants made by the respective

States for the maintenance of themselves, their families and dependants and hold the jagirs as 'Jiwai Jagirs'. The holders of the personal Inams in Petition No. 690 of 1954 used to pay salami to the erstwhile State of Rajpipla and are included within the definition of "jagirdar" being holders of jagir villages within the meaning of the definition thereof contained in the impugned Act.

The Petitioner in Petition No. 364 of 1954 claims to be the owner of 60 villages in the patta or territory of Moti Moree comprised in the erstwhile State of Idar as the Bhumia or under-lord and contends that his holding does not fall within the definition of jagir as given in the impugned Act and that therefore in any event the State of Bombay is not entitled to enforce the impugned Act against him.

All these Petitioners have challenged the vires of the impugned Act mainly relying upon the agreements cf merger entered into by the Rulers of the respective St1tcs with the Dominion of India on or about the J 9th March 1948 and the collateral letters of guarantee

B/iazwari J.

J9jS passed by the Ministry of States in their favour on Maharaj Umeg subsequent dates, the contents of which were regarded Singh an4 otliers as part of the merger agreements entered into by them

Th;;,~,. 'If with the Dominion of India.

BtJprbay and otlrers Tht merger agreements were in the form given in Appendix XIII to the White Paper at page 183: BhagwatiJ.

"FORM OF MERGER AGREEMENT SIGNED

BY RULERS OF GUJARAT AND DECCAN

STATES

AGREEMENT MADE THIS day between the Governor-General of India and the of Whereas in the immediate interests of the State and its people, the of is desirous that the administration of the State should be integrated as eariy as possible with that of the Province of in such manner as the Government of the Dominion of India may think fit; It is hereby agreed as follows:···-

ARTICLE I.

The of hereby cedes to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the Governance of the State and agrees to transfer the administration of the State to the Dominion Government on the day of 1948 (hereinafter referred to as "the said day").

As from the said day the Dominion Government will be cqmpetent to exercise the said powers, authority and jurisdiction in such manner and through such agency as it may think fit.

ARTICLE 2.

Tlie shall with effect from the said day be entitled to receive from the revenues ef the State annually for his privy purse the sum of rupees free of taxes. This amount is intended to cover all the expenses of the Ruier and his family. including expenses on account of his personal staff, maintenance of his residences .

marriages and other ceremonies, etc. and will neither be increased nor reduced for any reason whatsoever.

The said sum may be drawn by the m four equal instalments in advance at the beginning of 'each quartei: by presenting bills at the State Treasury or at such other Treasury as may be specified by the Dominion Government.

ARTICLE 3.

The shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) helonging to him on the date of this agreement.

The will furnish to the Dominion Government before the day of 1948 an inventory of all the immovable property, securities and cash balance held by him as such private property.

Ir any dispute arises as to whether any item of property is the private property of the or State property, it shall be referred to such officer with judicial experience as the Dominion Government may nominate and the decision of that officer shall be final and bfoding on both parties.

ARTICLE 4.

The shall be entitled to all personal privileges enjoyed by them whether within or outside the territories of the State, immediately before the 15th day of August 1947.

ARTICLE 5.

The Dominion Government guarantees the succession, according to law and custom, to the gadi of the State and to the personal rights, privileges, dignities and titles.

In confirmation whe;:reof Mr. Vapal Pangunni Menon, Secretary to the Government of India in the Ministry of States, has appended his sigmtture on behalf and with the authority of the Governor-General of India and has appended his

Maharaj Umi!g Singh and others v.

The State of Sombay and others

BhagwatiJ.

Maharaj Un1e1

Signature on behalf of himself, his heirs and successors, of Singh and others Dated v. ,• Secretary to the Government of India, Ministry of The State of Bombay wrd others

BliagwatiJ ...

States".

The l!!tters of guarantee' subsequently executed by the Ministry of States in favour of the respective Rulers contained the following guarantees:-

"(!) Your privy purse will be fixed in accordance with the formula applied in relation to the fixation of the privy purse of the Deccan States Rulers whose States have merged into the Bombay Province.

The amount will be fixed in perpetuity to you, your heirs and successors, and will neither be increased nor reduced for any reason whatsoever. Tt will be free of ail taxes, whether imposed by the Government of Born bay or by the Government of India and it will not be taken into account in the assessment of your world income to income-tax or super-tax.

(2) The cash balances and other assets of your State on the day you transfer the administration of your State to the Dominion Government will, as far as possible, be spent for the benefit of the people of your State.

(3) You will be entitled to the full ownership, use and enjoyment of all Darbari or private properties (as distinct from State Properties) belonging to you on the date of your making over the administration of your State to the Dominion Government.

Darbari properties will include palaces, houses, residence>, guest houses, stables, garages, quarters, outhouses. etc. which are at the date of transfer of administration in bona fide personal use or occupation of the Ruler or member~ of his family or personal staff. irrespective of whether the property is situated in the Capital, or at any other place in the State, or in Bombay, or anywhere else outside.

14) The continuation in service of the permanent members of the public services of your State is hereby guaranteed on conditions which will be no less advantageous than those on which they were serving

on lst April 1948. In the event of continuation of service not being possible in any case, reasonable compensation will be paid.

< 5) Pensions, gratuities, annuities, and allowances. granted by the State to the members of its public services who have retired or have proceeded on leave preparatory to retirement before 1st April 1948 as also the enjoyment of the ownership of Khangi villages. lands, jagir, grants, etc. existing on 1st April

1918 are hereby guaranteed. This guarantee is without prejudice to the right of Government of Bombay to issue any legislation which does not discriminate against the States and their subjects.

(6) AH emblems, insignia, articJes and other paraphernalia of the Ruler will be considered as belonging to. and be regarded as his private property.

(7) No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned unless the order was passed or action taken <tfter the l st of April 1948 and is considered by the Government of fodia to be palpably unjust or unreasonable. The decision of the Government of India in this respect will be final.

<R) No enquiry shall be made nor shall proceeding~ lie in any Court in India against you, whether in a oersonal capacity or otherwise, in respect of anything done or omitted to be done by you or under vonr authority during the period of your administration of the State.

(9) Every question of disnuted succession in reg.ard to a Gujarat State which has signed an agreement integrating the administration of the State with that of the Province of Bombav shall be decided bv a CNmcil of Rulers of Gujarat States after referrin!! it to the Hi!!h Court of Bombav and in accordance with the ooinion given by that Hi!!h Court. All questions relating to the rh?hts. dfonities and orivileges of tht3 Ruler will also he considereo bv the Council of Rulers who shaJI make suitable recommendationc; to the Government of Bombay and the Government of India. The Council shall consist of the Rulers of all

Maltaraj Umeq Singh and orhs

The State of Bomba;• and others

Blrafwati J.

1955 full _jurisdictional Gujarat States, whether salue or Maharaj Umeg non-salute. No ruler who is less than 21 years of age Singh ai; others shall however be a member of the Council. The

BoTlbie s1a1de 01, Council will elect one of its members to be the Presi- ,,, ay an ot11ers . , -- dent of the Counc1l. The President and the members Bhagwari.f. of the Council will hold office for a term of five years from tht date on which they enter upon the duties of their respective offices.

2. The contents of this letter will be regarded as part ot the merger agreement entered into by you with the Governor-General of India".

The contention which has been urged before us by the Petitioners relying upon clause 5 of the Letters of Guarantee aforesaid is that the enjoyment of the <Jwnership of the jagirs existing on the !st Ap_ril, 1948 was guaranteed, that this guarantee was binding on the State of Bombay, that the State of Bombay and therefore the State Legislature had waived the right, it any, or in any event had no legislative competence to enact any legislation depriving the holders of the jagirs oi their right of ownership over the same, and that even though the Government of Bombay has reserved to itself the right to issue any legislation which did not discriminate against the states and their subjects, the impugned Act was ultra vires inasmuch as no legislation could be undertaken which would have the effect of depriving the holders of the jagirs of their ownethip over the same and the provisions of the impugned Act were in any event discriminatory against the States and their subjects or in other words the impugned Act was confiscatory and also discriminatory.

Jt was contended on the other hand on behalf of the State of Bombay that the agreements of merger and the letters of p; uarantee were executed bv the Dominion of India and were not binding on the state of Bombay, that the Petitioners were not parties to the aitreements of mer11er and letters of p; uarantee and that thev were not entitled to enforce the same. that even if they be treated as parties thereto the disoute between the parties arose out of the provisions of the . a'!reements and covenants which were entered into or

executed before the commencement of the Constitution by the Rulers of the respective states and to which the Government of Dominion of I1, dia was a party and that therefore this Court had no jurisdiction to interfere in the said disputes by virtue of the provisions of article 363 of the Constitution, that the State Legislature had plenary powers of legislation within the ambit of its sphere unless the Constitution itself expressly prohibited legislation on the subject either absolutely or conditionally, that no sucli prohibition could be soelt out of the terms of clause 5 of the letters of guarantee and that the impugned Act was intra vires the power of the State Legislature and could not be challenged. Once that position was established it was further ur_ed that the jagirs in w1estion were estates within the definition of the expression in article 3 l-A(2)(a) of the Constitution and the impugned legislation being a legislation providing for the acquisition by the State of the estates and the rights therein or for the extinguishment or modificaticm of the same could not be challenged as void on the ground that it was inconsistent with or abridged any of the rights conferred by any provisions of Part Ill of the Constitution, and that therefore the impugned Act could not be challenged as violative of any of the fundamental rights of the Petitioners. It was also urged that none of the provisions of the impugned Act were confiscatory or in any manner whatevr discriminatory, fair and adequate compensation having been provided for the abolition of the jagirs and the States and their subjects not having been dealt with in any discriminatory manner as compared wifh the subjects of the original State of Bombay.

As regards the contention that the agreements of merger and the letters of guarantee were executed by the Dominion of India and were not binding on the State of Bombay it was urged on behalf of the Petitioners that the Government of the Dominion of India was certainly bound by those guarantees and this ohliQation of the Dominion Government devolved upo~ the Province of Bombay when the erstwhile State5 which were parties to the agreements of merger

Z3--S ~IiND/82

Maharaj Umeg Singh and others v.

The State of Bombay and'others

Bhagwat I J.

1955 and the letters of guarantee became merged in the Mn/UJrlli Umeg Province of Bombay, under clause 8 of the States' Sin;'il and 01/iers Merger (Governors' Provinces) Order, 1949 (Appendix

Thelia1eof XLIV. White Paper, Page 297), that these obligations

!k>mhnyandotlie~<were thus deemed to have been undertaken by the

Ilha11wa1i J..

Dominion Government on behalf of the absorbing Province, viz., the Province of Bombay and were binding upon the Province of Bombay, and that when the Constitution came into force from the 26th January

1950 all rights, liabilities and obligations of the Government of each Governors' Province whether arising out of anv contract or otherwise were under article 294 of the- Constitution to be the rights, liabilities and obligations respectively of the Government of each corresponding State and these obligations of the Province of Bombay accordingly became the obligations of the State of Bombay. It was further urged that the State of Bombay was thus bound by all the obligations which had been undertaken by the Dominion Government under the agreements of merger and letters of guarantee above referred to, and it could not lie in the mouth of the State of Bombay to repudiate the same.

This argument is not without force, but we do not consider it necessary to decide this question because even assuming that the State of Bombay was bound by these obligations, the question still remains how tar the Petitioners before us are entitled to enforce these obligations against the State of Bombay.. The Petitioners were certainly not parties to these agreements of merger and letters of guarantee ea nominee.

They could only claim to be parties to the same by reason of the fact that the Rulers of the erstwhile States did not negotiate these agreements of merger or obtain the letters of guarantee '.lnly in respect of their personal rights and properties but also represented the States and their subjects in the matter of obtaining the same and the subject of these States were therefore represented by the Rulers and were entitled to the benefit of whatever obligations were under- . taken by the Dominion of India qua. the States and their subjects. It is therefore arguable that the Rulers

of the erstwhile States as also their subjects would be m a position to enforce these obligations. This position was however sought to be negatived by relying upon the following observation of their Lordships of the Privy Council in Vajesingji .Joravarsingji v. Secre tary of State for India in Council(') at page 360: -

"But a. summary of the matter is this: when a territory is acquired by a sovereign state for the first time that is an act of state. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hither to unoccupied by a recognized ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers. recognised. Such rights as he had under the rule of predecessors avail him nothing.

Nay more even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights. that does not give a title to those inhabitants to enorce these stipulations in the municipal Courts.

The nght to enforce remains only with the high contracting parties".

These observations were quoted with approval in Secretary of Stltte v. Sardar Rustam Khan & Others<') at page J 24. It was therefore urged that it will he the high contracting parties, viz., the Rulers of the respective States who would be in a position to enforce these obligations and not the Petitioners for whose benefit these obligations were undertaken by the Dominion Government

We do not feel called upon to pronounce upon the validity or otherwise of these contentions also for the simple. reason that the Petitioners would be out of Court either way. If they were deemed to be parties to the agreements of merger and letters of guarantee thev would be faced with the bar to the maintain- , ability of the petitions under article 363 of the Constit11tion which lays down that neither the Supreme

(I) 51 Indian :\ppcals 357.

(2) 68 Indian Appeals 109.

Maharaj Umeg Singh and other.<

The State Qj Bombay and others

Bhagwati J.

l9SS Court nor any other Court shall have jurisdiction in Maha; aJ umeg any dispute arising out of any provision of a treaty, Siniftand others agreement, covenant. engagement, sanad or other

The;,~,. of similar instrument which was entered into or executed Bombay and others before the commencement of the Constitution by any

Bha;;;;;,; J.

Ruler of an Indian State and to which the Government of the Dominion of India ............... was a party.

If on the other hand they were deemed not to have been parties to the same they would not be the contracting parties and would certainly not be able to enforce these obligations.

It was therefore urged on behalf of the Petitioners that thi: dispute between the parties did not arise , out of the provisions of the agreements of merger and the letters of guarantee which were entered into or .executed by the Rulers of the respective States and to which the Government of the Dominion of India was a party. According to the Petitioners they merely challenged the vires of the impugned Act and relied upon clause 5 of the letters of guarantee in order to establish the position that the State Legislature had no legislative competence to legislate

(Ill the subject of the abolition of .iagirs. That was, it was submitted, not a dispute arising out of the agreements of merger and letters of guarantee but arose out of the act of the State Legislature in enacting the impugned Act in direct contravention of the guarantee incorporated in clause 5 of the letters of guarantee. This argument however would not avail the Pt:titioners, because if one looked into the averments contained in their petitions it was clear that the whole ambit of the petitions was to enforce clause 5 of the letters of guarantee. The Petitioners relied upon clause 5 of the letters of guarantee which had been obtained by the Rulers of the erstwhile State from the Dominion Government and complained that the State Legislature had enacted the impugned Act which it had no power to enact having regard to clause 5 of the said letters of guarantee and were wrongfully depriving the Petitioners of the jagirs, the ownership of which had been guaranteed thereunder. The whole of the petitions were nothing else except the

claim to enforce the Petitioners' rights under the 1955 letters of guarantee, and the disputes therefore were Maharaf Umeg clearly in respect of the agreements of merger and Singh and others the letters of guarantee and were covered by article The Site of 363< 1) of the Constitution. A similar ::ontention had Bombay and oriJers been raised on behalf of the plaintiffs in State of Bhagwati J.

Seraikella and Others v. Union of India and Anot.her( 1 ) and was repelled by Kania, C.J. at page 490 as under:-

"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 aJJ.d the State of Bihar are trespassing wrongfully on its legislative and executive functions, that the Dominion 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 administration of the State beyond the rights given to them under the Instrument of Accession. The whole plaint is nothing else except the claim to enforce the plaintiff'~ rfo:ht under the Instrument of Accession. The

dispute~ therefore in my opinion clearly fs in respect of this Instrument of Accession and is covered by Article 363(1) of the Constitution 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"

It could not therefore be urged that what the Petitioners were doing was not to enforce the obligations undestaken by the Dominion . Government under the agreements of merger and the letters of guarantee, or that the disputes between the parties did not arise out of the provisions of the agreements of merger and the letters of guarantee which were entered into or executed by the Rulers of the respective States and to which the Government of Dominion of India was a party within the meaning of Article 363 of the Constitution.

(I) 1951 S.C'.R. 47·1.

SUPREME COURT REPORT8 [i955]

1955 It that was the position the jurisdictwn of this Maharaj umec Court was ousted and this Court could not interfere Singh u11d others in those disputes. Assuming however that the Peti-

The 1tte of tioners wer!: entitled to enforce the obligation and Bombay and others guarantee incorporated in clause 5 of the letters of

BhacwatiJ. guarantee the further difficulty in the way of the Petitioners is that the State Legislature was fully competent to enact the impugned Act notwithstanding the terms of the guarantee. The legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and unless and until . there is any provision in the Constitution expressly prohibiting legislation on the sub1ect either absolutely or conditionaJly, there is no fetter or limitation on the plenary powers which the State Legislature enjoys to legislate on the topics enumerated in the Lists II & III of the Seventh Schedule to the Constitution. It was concecied on behalf of the Pet; tioners that the topic cf legislation which was covered by the impugned Act was well within List II of the said Schedule and the vires of the impugned Act could not be challenged on that ground.

The ground of attack was that the Dominion Government. and therefore the State Government had waived its right to legislate on the topic of the abolition of jagirs or had in any event put a fetter or limitation or their power to issue any legislation in that behalf by the terms of the guarantee contained in clause 5 of the letters of guarantee. It was contended that under the terms of clause 5 an absolute guarantee had been given by the Dominion Government in regard to the.enjoyment of the ownership of jagirs and that the Dominion Government and there" fore the State of Bombay were precluded from enacting anv legislation which had the effect of destroying that ownership. This contention however could not be supported by the terms of clause 5 which embodied in the first part thereof the terms of the guarante, and went on to provide in the second part that this guarantee was without prejudice to the right of the Government of Bombay to issue any legislation which did not cliscriminte against the States and their

sub.iects. It was therefore not an absolute g11arantee but was circumscribed or cut down by the reservation of the power to make law with respect to jagirs provided such law did not discriminate against the State.s and_ their subjects. The right of the Government of Bombay which was th11s reserved covered the whole of the guarantee embodied in the first part of the clause and there was nothing in these terms which would go to show that the ownership of the jagirs could not be touched and the legislation, if any, was to be enacted in regard to certain incidents of enjoyment of such ownership. The right of the Government of Hom bay to issue any legislation with regard to the enjoyment of the ownership of jagir hmds was expressly reserved and this right covered also legislation in regard to the abolition of the jagirs and the Government of Bombay was therefore entitled under the terms of this clause 5 to issue any legislation iPregard to the same provided however that such legislation did not discriminate against the States :rnd their subjects. That was the only fetter or limitation, imposed upon the right of the Government of Bombay to issue any legislation in regard to the enjoyment of the ownership of jair lands and if that fetter or limitation could also be imposed on the State Legislature the Petitioners would have had a right to challenge the impt>gned Act on the ground that it discriminated

againt the States and their subjects.

The fetter or limitation upon the legislative power of the State Legislature which had plenary powers of Jegi, lation within the ambit of the legislative heads specifie<l in the Lists TI & III of the Seventh 'Schedule to the Cor<:titution onld only be imposed by the Constitution itself nd not by any obligatio11 which had been undertaken by either the Dominion Government or the Province of - Bombay or even the State of Bombay. Under Article 246 the State Legislature was invested with the oower to legislate on the topics enumerated in Lists II & III of the Seventh Schedule to the Constitution and this power was by virture of article 245(1) subject to the provisions of the Constitution. The Constitution itself laid down the fetters

Mahara Unlf'g Singh and other.f

The State of Bomba)' a11d others

B/iagwmi J.

1955 or limitations on this power, e.g., in article 303 or

Maharaj Umq article 286(2). But unless and until the Court came Singh and others h . v. to t e conclusion that the Constitution itelf had ex-

BoTlb" Statde 01, pressly prohibited legislation on the sub1"ect either m ay an 01'1trs b l I . . . -. a so ute y or cond1t1onally the power of the State Bhagwatl J.

Legislature to enact legislation within its legislative 'Competence was plenary. Once the topic of legislation was comprised within any of the entries in the Lists IT & III of the Seventh Schedule to the Constitution the fetter or limitation on such legislative power had to be found within the Constitution itself and if there was no such fetter or limitation to be found there the State Legislature had full competence to enact the impugned Act no matter whether such enactment was contrary to the guarantee given, or the obligation undertaken by the Dominion Government or the Province of Bombay or even the State of Bombay. The Petitioners would have a legitimate grievance in the matter of the deprivation of their rights of ownership of the jagir lands in so far as the States and their su biects were discriminated against, hut they would not be able to have their grievance redressed by this Court for the simole reason that the State Legislature was at all events competent to enact the impugned Act not being fettered at all by the terms of clause 5 of the letters of guarantee. The provisions ot article 294(b) of the Constitution which is said to have transferred the obligations of the Government of the Province to the State of Bombay w0uld not by involving the transference of the obligation undertaken by the Dominion Government in clause 5 of the letters of guarantee to the State Government impose a fetter or limitation on the legislative competence of the State Legislature to en-act legislation on any of the topics enumerated in Lists II & III of the Seventh Schedule to the Constitution. The remedy of the Petitioners would be elsewhere and not in this forum. The learned Judges of the Federal Court gave an answer to a similar complaint of the Taluqdars of Oudh made by them against the

United Provinces Tenancy /\ct XVII of 1939 in Th11kw

JrrgannMh Raksh Singh v. The United Provinces(') at page 87:-

Maharaj Umeg Singh alJd others "We desire, however, to point out that what they The s~re of are now claiming is that no Legislature in India has Bombay and others any right to alter the arrangements embodied in their Bhag.;; tiJ. sanads nearly a century ago; and, for all we know, they would deny the right of Parliament itself to do so. We hope that no responsible Legislature or Government would ever treat as of no account solemn pledges given by their predecessors; but the readjustment of rights and duties is an inevitable process, and one of the functions of the Legislature in a modern State is to effect that readjustment, where circumstances have made it necessary, with justice to all concerned. It is however, not for this Court to pronounce upon the wisdom or the justice, in the broader sense, of legislative acts; it can only say whether they were validly enacted,. ............................. "

These observations were quoted with approval by Their Lordships of the Privy Council in Thakur Jag(lnnath Baksh Singh v. The United Provinces(')" at page 122 and we also would observe in the same strain that we are not concerned with the policy of the State Legislature in enacting the impugned Act for abolition of jagirs but we are only qoncerned with the question whether the impugned Act was validly enacted.

No argument has been advanced before us which would enable us to hold that the impugned Act was ultra vires the State Legislature, the only ground of attack being that it was in contravention of the guarantee given in clause 5 of the letters of guarantee.

But that position is of no. avail to the Petitioners.

Considerable argument was addressed before us based on the comparison of the provisions of the various Acts of the Bombay State Legislature enacted during the years 1949 to 1953 in regard to the abolition of the various tenures obtaining within the State of Bombay with the provisions of the impugned Act, with a view to show that the provisions of the im- pugned Act were discriminatory against the States

(1) 1943 F.C.R. 72

~4-B SCI/ND. 82

(2) 1946 F.C.R. 11 t.

1955 anp their subjects within the meaning of clause 5 Maharaj UAreg of the letters of guarantee. We have not thought it Singh and orlier.v necessary to refer to the same in view of .the conclu-

Thc s~~'' ef sion which we have reached above that the impugned Bombay and others Act was intra vi res the powers of the State Legislature

Bhagwatil. and the State Legislature was C]Uite competent to enact the same.

Even if it could be demonstrated that the provisions of the impugned Act were confiscatory as well as discriminatory in the manner suggested, the jagirs of the Petitioners (except in the case of the Petitioner in Petition No . .364 of 1954) were all estates within the meaning of the term as defined in Article 3 l-A(2)(a) of the Constitution and even if the impugned Act provided for the acquisition of the estates or of any rights therein or for the extinguishment or modification of any such rights the impugned Act could not 'be challenged as void on the ground that it was inconsistent with or took away or abridged any of the fundamental rights conferred by Part III of the Constitution.

Any challenge therefore on t.he ground of the impugned Act violating the fundamental rights of the Petitioners under article 14 or article 19(])(f) or article 31(2) of the Constitution was not available to the Petitioners. On the other hand if the grievance was that the impugned Act had brought about discrimination in breach of clause 5 of the letters of guac

rantee then the dispute clearly arose out of the letters of guarantee and wou Id by article 363 be placed beyond the jurisdiction of this Court. The Petitions of the Petitiopers except Petition No. 364 of 1954 which would be dealt with immediately hereafter therefore fail and are liable to be dismissed,

Petition No. 364 of 1954

In addition to -the grounds common to all the Petitions which we have already dealt with above the Petitioner in Petition No. 364 of 1954 claims that he is the owner of the 60 villages in the Putta or territory of Moti Moree compriSed in the erstwhile State of Idar as the Bhumia or underlord and contends that his holding does not fall within the definition of

jagir as given in the impugned Act. In support of his 1955 contention he has traced the history of Moti Moree Maharaj umeg since 1250 A.O. and in any event since 1800 A.O. Si11gtumdotlzers when the then Chieftain of Moti Moree entered into The s~te of a treaty with the Maharaj a Zalimsinh of Modasa Bombay and others whereby in consideration of payment of Rs. 361 Blzagwati J. annually the said Zalimsinh agreed to protect Moti Moree against the attacks of the neighbouring State of Ooongarpur. He has pointed out that thereafter Modasa was absorbed into the Taluka of Amnagar in 1821 and subsequently in about 1849 it reverted to Idar State and continued with the Idar State until the latter merged into the Province of Bombay in

1948. He contends that he and his predecessols were enjoying and exercising full sovereign rights over Moti Moree ever since the said treaty of 1800 and their position had remained unchanged, their only liability being to pay Rs. 361 annually for protection.

He further contends that they were enjoying the rights of excise and customs and revenue, that they did not pay and revenue to the Stale of Idar and enjoyed and continued to enjoy rights over all lands, forests, minerals, river beds, village sites, etc. and that when the Ruler of ldar wanted that there should be uniform customs levy thi; oughot'it the State, the said Ruler had to give compensation to the Petitioner and had also similarly negotiated with them and had to pay compensation to them in respect of salt, opium, excise, etc. He has pointed out that Rs. 457 for customs, Rs. 40 for opium and Rs. 7 for salt were being paid annually by the erstwhile State of Idar and thereafter _by the Government of State of Bombay to him by way of compensation for these sovereign rights of his, which amounts were set off against Rs. 361 being the annual payment of protection which he paid as aforesaid to them. These rights of his recognised by the erstwhile State of Idar and also by the State of Bombay constituted him a Thakur or underlord of Moti Moree and he contends that his estate of Moti Moree is not a--jagir within the definition of the trm given in the impugned Act.

Our attention has also bee_n drawn in this behalf to

1955 Bombay Gazetteer, Vol. 5 (1880), page 398, where Mahuruj umeg Mori (Meghraj) is described as the estate of the origi- Singh and others nal landlords Bhumias othenvise described as petty

Th' siate of chiefs and underJords and to page 409 where the Bombay and others underlords (Bhumias) are stated to be the earlv chiefs Bhagwati J. who settled in Idar at least not later than the Rathod conquest (about 1250).

The State of Bombay on the other hand has denied the several allegations contained in the petition and contends that in the year 1891 the erstwhile State of Idar had conferred upon the Thakore of Moti Moree the powers of a Third Class Magistrate as an act of :'grace", that in 1902 the management of the estate was taken over by the erstwhile State of ldar and one Kamdar Mathurlaji Wa.'i appointed as Japtidar, that in 1910 the management was lifted as a special case and the arrears of Nazrana were ordered to be recovered in instalments by the erstwhile State of Idar, that in several documents Moti Moree was described as Bhomia Jagir within the definition of the term Jagir as given in the impugned Act and that the sum of Rs. 361 was still being regularly. paid even after merger as "Kichari hak"~ It therefore contends that the Thakore of Moti Moree, the Petitioner is a jagirdar and Moti Moree is a jagir within the meaning of the definition thereof given in the impugned Act.

These allegations and counter-allegations do not however carry the matter any further. In order to exclude Moti Moree and the Petitioner from the operation of the impugned Act it will be necessary for the Petitioner to establish satisfactorily that Moti Moree is not a jagir within the definition thereof given in the impugned Act. Even though the allegations of the Petitioner go far enough to make it probable that Moti Moree was neither held by the Petitioner and his ancestors under a grant or was not recognised as a Grant by the Ruler of the erstwhile State of lclar, that would not be enough to enable us to grant him the relief prayed for by him. The question requires to be completely thrashed out and adjudicated upon by a Court of Law after going into the evidence

adduced before it by both the parties. The learned 1955 Attorney-General appearing for the State of Bombay Maharllf umeg has t_herefore submitted that this question should be Singh and others enquired into by a proper tribunal and the Petitioner The Iire of should be referred to a civil suit in order to establish Bombay and others his rights. .

Blzagwati J.

We accordingly feel that the Petition No. 364 of 1954 should be adjourned till after the disposal of a civil suit to be filed by the Petitioner in the proper Court for a declaration that Moti Moree is not a jagir within the definition of the term a~ given in the impugned Act and for consequential reliefs. The learned Counsel for the Petitioner has given us to understand that a formal notice under Section 80 of the Civil Procedure Code in this behalf has already been served by the Petitioner on the State of Bolllbay. We therefore order that the Petitioner do file the necessary suit within 3 months from this date and this petition do stand adjou:rned till after the hearing and final disposal of that suit. The stay granted by this Court in this petition will continue in the meanwhile.

We may record here that the learned Attorney-General on behalf of the State of Bombay has also given his undertaking not to take any steps against the Petitioner in the meanwhile.

Petitions Nos. 337 to 349, 365, 366, 481 and 690 of 1954 will therefore stand dismissed. Petition No. 364 of 1954 will stand adjourned sine die till after the disposal of the , civil su'it to be filed by the Petitioner as above indicated. If no such suit is filed within the aforesaid period this petition will also stand dismissed.

Each party will bear and pay the respective costs of

he petitions.