Ifft

Ft6rum 20.

346 SUPREME COURT REPORTS [1962] SUPP.

AMARSARJIT SINGH

THE STATE OF PUN.JAR

(AND CONNECTED PETITION'S AND APPEALS)

(B. P. SINHA, C. J., IC SunnA RAO, N. RAJAOOPA!.A

AYYANOAR, J. R. MuonoJ, KAR and T. L.

VEXKATARAMA AIYAR, JJ,)

Resumption of jaqirs-Gis-Sutkj .fa7irs___:. lagirdars, if wvereigns-Assignment of reten1te by Rritislt Corrrnme11t-l1nplied grant-Legislatii•e conipetence of tn1:u:tn1ent-'l1ltr. l'unjub Ruumption of Jagirs Act, 1957 (Pttnjah 39 .nf J.'Jii7), '"· 2( 1), 2(5)-Gon.•litution of India, Sei:enth Scherlule, Ust II, entrie" 18, 4:i.

The Punjab Resumption of Jagirs Act, 1957, came into force on November 14, 1957, and the State of Punjab proceeded to take action thereunder for resuming the jagirs.

The petitioners who were holders of certain jagirs in that State known as the Cis-Sutlej jagirs claimed that they could not be resumed under the pro\'i•ions of the Art because they did not fall within the definition of Jagir contained ins. 2(1) of the Act on the grounds that there was at no time any grant of the Cis-Sutlej jagirs to their holders. much less any assignment of land revenue to them, and that even if there was such 11 grant, it was not one made by or on behalf of the State Government as required bys. 2(1) (a) of the Act. The history or the,. jagirs showed that the jagirdars were originally

rulers of the territories when they took possession of them by conquest in I i63, hut in course of time after the British came on the scene, they were wadually stripped of all their powers as sovereigns, and in 1852 the British took over the collection of revenue of the jagir lands and out of the collections the jagirdan were paid their share. Subseq tJen t to 1852 there was a course of legislation relating to the jagirs. The ques• tion was v.•hether the assignment of land revenue to the Cis- Sutlej jagirdars was made on the basis of aR implied grant.

The petitioners case was that as the Cis-Sutlej Chiefs were never conquered, the payment of lancl revenue to them must be related to their status as overeigns and that the collection of the land revenue was made only under an implied arrangement with them.

Held, that the status of the Ci1-Sutlej jagirclars was only !hat of subjects and that the payment of revenue to them by

the British Government was only on the basis of an implied grant to them.

Though the Cis-Sutlej Chief were not. onquered .by the British, since the latter were in fact exerc1s1ng sovereign powers over the area it must be held that sovereignty had

passed to them otherwise than by conquest.

Mfs. Dalmia Dadri Cement 'ao. Ltd. v. The Oommissione; of Income-tax, [1959] S. C. R. 729, Thakur Amar Singji v.

State of Rajasthan, [1955] 2 S. C.R. 303 and Vajesingji Jorawar

Singji v. Secretary of State, [1924] L.R. 51 I.A. 35 7, relied on.

Held, further that the British Government which had made the grant was the "State Government" within the meaning of s. 2(5) of the Punjab Resumption of Jagirs Act 1957, and that the Jagirs in question' were within the definition of "Jagir" in s.2(1) of the Act.

Held, also, that the Act was within the legislative competence of the State of Punjab under entries 18 and 45 of List II of the Seventh Schedule to the Constitution of India.

0RrGINAL JcrarSDICTION: Petitions Nos. 82 of 1960 and 148, 168 to 174 and 357 to 361of1961.

Petition under Art. 32 of the Constitution of India for the. enforcement of Fundamental

Itights.

WITH

Civil Appeals Nos. 453 to 474 of 1961.

Appeals from the judgment and order dated May 25, 1959, of the Punjab High Court in Civil Writ Nos. 428, 303, 398, 402, 459 to 462, 421, 472, 473, 475, 490, 503, 509, 519, 520, 555, 590, 710 and . 712 of 1958.

AND Civil Appeal No. 50 of 1962.

Appeal by special leave from the judgment and order dated May 25, 1959, of the Punjab High

Court in Civil Writ No. 347 of 1958.

Achhru Ram and Naunit Lal, for the petit!oner (in Petn. No. 82 of 60) and the appella, qt

(m C. A. No. 50 of 62). ' • ', ' r

Amat'8af'jit Singh

v. .

The State of Punjab

AmarsMjil Sin1A

T/i, St.,, of Punjal>

348 SUPREME OOURT REPORTS [1962) SUPP.

l. N. Shroff, for tho pctition0rs (in Petn. No. 148 of 61) and the appellants (in C. As. Nos. 457 to

474. of !ii).

Har(lei: SiW]h and Y. Knmar for the petitioners (in Petm. Nos. 168 to 174 ad 357 to 361 of6l).

C. K. Daphtary, Solicitor-General of India, K. L.

Go.sain, B. R. L. Iyengar, Lak.sltm.1'. Cliand and J. N.

Shroff, for the appellants (in C.As. Nos 453 and 4f>6 of 1961 ).

K. L. Gosain, B. R. L. Iyengar, Lakshmi Chand - and 1. N. Shroff, for the appellants (in C. A. No. 454 of 19fil ).

B. R. L. lyeW]ar, Lakshmi, Chand and 1.N.Shroff, for the appellant; (in C. A. N'o. 455 of 1961 ).

S. ill. Si kn'., Advocate.General, for the Stale of Punjab, N. S. Bindm and P. D. J!enon, for the respondents (in all petitions a.ml Civil App ea.ls).

M. C. Sctalva.d, Attonwy-Gcneral of India., J. B. n111fachanji, 0. C. Matlmr and Ravinder Narain, for fncervoner Xo. l (Sa.tinder Singh).

K. L. ;}fchta, for Intervener No. 2 (l{aghvindcr folingh and others).

1962. February 20. The .Judgment of the Court-was delivPred by

VENKATARA~IA AIYAR, J.-The qurstion that a.rises for our decision in the a.hove writ petitions and appeals is whether certain ja.girs in tho State of Punjab known as the "Cis-Sutlej" jagir a.re liable to he resumed under . the provisions of the Punjab Resumption of Ja.girs Act, Hl.57 (Punjtib Act N'o. ; l!) of 1957), hereinafter referred to a.s "the Act".

This Act came into force on Novcmer 14, 1957, imd the respondent State then procpeded to tke action thereunder for resuming the ja.girs.

pmber of rititions were hereupon filed in tho

Amarsarjil Singh . v.

High Court of Punjab under Art. 226 of the Constitution challenging the validity of the Act, and of the proceedings taken by the respondent State thereunder on the ground, firstly, that the Act was altra vires the powers of the State Legislature and that its provisions were unconstitutional and void ; and, secondly, that even if the Act was intra vfres the jagirs held by the petitioners were not "jagirs"

Tiu Sl•I• of Punjab

as defined in the Act, and were therefore not liable to be resumed under its provisions.

By their judgment dated May 25, 1959, the learned Judges held that the legislation was within the competence of the State, and that it did not contravence any of the constitutional provisions.

They further held ,,. that the jagirs held by the petitioners fell within the definition of "jagir" under the Act, and were liable to be resumed thereunder, and that accordingly no writ could be issued against the State for proceeding under the provisions of the Act.

By thflir Order dated January 27, 1960, the learned Judges granted leave to appeal to this Court under Art. 133 (1) (a), and pursuant to the same, Civil Appeals Nos. 453 to 474 of 1961 have been preferred to this Court.

Appeal No. 50 of 1962 by special leave is also directed against the Judgment of the Punjab High Court in a Writ Petition under Art.

226. Some of the jagirdars have also filed petitions in this Court under Art. 32 of the Constitution, impugning the Act and the action of the State thereunder on the same grounds as those raised in the appeals. We have accordingly heard arguments of learned Counsel both in the writ petitions and in the appeals, and this Judgment will govern all of them.

Though a number of grounds have been taken in the pleadings, impugning the Act as ultra vires and its provisions as unconstitutional, in the argument before us, the only contention that was pressed was that the Cis-Sutlej jagirs do not fall

Ai)ar J

Anr1trsarjit Singh

•• T,., State of Pwijab

A0ior J.

350 sbPRkME CODRT REPORTS (i962J sbi?i>.

within the definition of jagirs contained in the Act and that accordingly tho State had no authority to resume them under the provisions of the Act .

And this contention is sought to be sustained on two ground: ( i) that there was at no time any grant of tho Cis-Sutlej jagirs to their holders, much less any assignment of land revenue to thein; and

(ii) . that even if there was such a grant, it was not one made by or on behalf of tho State Government as required bys. 2 (1). It is argued that if either of these contentions succeeds, the jagirs in question would fall outside the purview of the Act, and the State would have no right undl'r its provisions to resume them.

It will be convenient at this stage to set out the relevant provisions of the Act. Section 2 (I) defines "jagir" as follows:-

,, ''Juir'' mcans-

(a) any assignment of land revenue made by or on behalf of the State Government; or

(b) any estate in la.nd creat-ed or afiir'- med by or on behalf of the State Government cnrrying with it the right of collecting land revenue or receiving any portion of tho land revenue; or

(c)· any grant of money made or continued by or on behalf of the State Government which purports to be or is ex pressed to be payable out of the land revenue; or

(d) any grant of money including anything payable on the part of the State Government in respect of any right, privilego, perquisite or office; and includes any such grant or assignmrnt existing in favour of Cis-Sutlej jagirdars."

I 3 s.c.R.· SUPREME COURT REPoRTS 35i

"Jagirdar" is definer:] in 's. 2 (2) as meaning the holder of a jagir. Section 2 (5) defines State Government as follows:-

"State Government" -

(a) as respects any period before the 1st November 1956, shall mean:-

(i) . the Government of the Patiala and East Punjab State Union or any of the Indian States whioh formed into the Patiala and East Punjab States Union on the 20th August, 1948 and

(ii) the Government of the State of Punjab and all predecessor Governments thereof by whatever name called, the Governor-General or the Governor-General in.Council, as the case may be, and t.he Sikh Rulers, but shall not include the Central Government as defined in the General Clauses Act, 1897, after the period commencing on the 15th August, 1947. (b) as respects any period after the lat November, 1956 shall mean the Government of the State of Punjab." Section 3 enacts that-

"N otwithstanding anything to the. contrary contained in any law or usage any grant settlement, sanad or other instrument, or any decree or order of any Court or authority, all jagirs shall, ou and from. the commencement of this Act, be extinguished and stand resumed in the name of the State Government.

It ie common ground that the jagirs which are concerned in the present writ petitions and appeals . consist of a right to the revenue payable on lands, and not of any estate such as wi)l fall under s. 2 (1)

(b) of the Act and that they must fall, if at all within s. 2 (1) (a). Therefore the discussion narrows

Amarsarjit Singh

I Y. - Tiu Stde of Pu•j•b

A!1ar J.

i962

Amarsnrjir Singh

' n~ State of Punjab

.1i)!lf' .i.

~52 SUPR~ME COURT REPORTS (1962j SUPP,

itself to the question whether there was, as required by s. :! (I) (a) of the Act, any assignm!'nt. of the revenue of these jagirs and whether such assignment was by tho State Government .

On the first question, as to whether there was assignment of land revenue, the contention of the petitioners and of tho appellants-and they will hereafter be reforred to compendiously as jagirdars-is that the so called jagirs are not jagirs as ordinarily understood, that they were not the subject matters of any grant by any State that they were in fact originally independent States h!!l<l by rulers with sovereign rights, that in course of time the British Governm1nt impos!·<l their Sv\'!> reignty over them; and finally took over the admi nistration of the State and paid the revenue collect cd therefrom to the rulers, not as person to whom the land-revenue had been a8signed, because th<'re was no such assignment but as sovereigns of the States. Therefore, it is contended, the co-callc<l jagirs are not within the difinition of s. 2 ( 1).

That brings us on to the question of the true status of the Cis-Sutlej jagirdars. The origin of these jagirs goos baek to 1763, The collapse of the Moghul Empire had created a void in the political stage of this country, and many were the powers which Htepped in with the ambition of establishing their sovereignty. The British had established their rule and }1ad extended their dominion up to the Jumna. The Sikhs had also developed during this period from being a purely religious sect into a military organisation, and established several States beyond the 8utlej. The tract of territory between the J umna and thE> 8utlej was at this time under tho administration of a weak Afghan Governor called Zain Khan. The policy of the British during this period was to hold the J umna as the frontier, and so they were indifferent to tho fate of this Cis-Sutlej area., But the Sikh Chiefs

beyond the Sutlej could not resist the temptation of overthrowing the Afghan Governor, seizing his territory and establishing themselves as its rulers.

In 1763 the storm burst when a number of them crossed the Sutlej, overwhelmed the Afghan Governor and occupied the whole country upto Jumna. "Tradition slill describes", says Cunningham in his History of the Sikhs, P. llO, "how the Sikhs dispersed as soon as the battle was won and how riding day and night ea.ch horseman would throw his belt and scabbard, his articles of dress and accoutrement, until he was almost naked into successive villages to mark them as.his." When the conqu est was over each Chief declared himself the ruler of the territory which he was able to occupy, and constituted himself its sovereign.

This state of affairs continued until 1806.

By this time, Ranjit Singh the "Lion of the Punjab", had built up a powerful State across the Sutlej.

He had already subdued the petty rulers within that area and was turning his attention to the territories south of the Sutlej and had occupied some of them. The Cis-Sutlej rulers became alarmed about their future and appealed for protection to the British, who had, by this time, changed their policy of non-intervention. The appeal was welcome, and met wjt, h prompt resporise.

The result was that in 1809 the British entered into a treaty with Ranjit Singh whereby he surrendered his acquisitions south of Sutlej and agreed not to interfere with the Cis-Sutlej States. And this was followed by a proclamation by Colonel Ochterlony in May 1809 whereby the Cis-Sutlej Chiefs were assured of their rights as sole owners of their possessions and exempted from payment of tribute, but were required to furnish supplies to the Britijsh Government and assist them against their enemies.

The British Government also promulgated a rule that whenever any of the rulers died without issues, his State

would lapse to the British Government.

Amarsarjit Singh

The Stale of Punjab

AarJ.

.Amo1Ja1jil SinKh

Tiu State of P11njob

A(Tar J.

!!54

. • ' 1 ; • i ) . ' 1 " I • SUPREME COURT REPORTs [1962] StJPP.

This was the position until 1846 when a drastic change in the situaticn totk place. Jn 1845, thnc was war bet ween the British and the Sikhs, and in that war the CisSutlej rulers far from help

ing the Rritish ag iinst the Trans Sutlej Sikhs, were either unsympathetically neutral or actively hostile to them, and that brought about a change in the policy of the British Government towards them.

The position is thus stated by Kensington in tho Ambala Gazetteer at p. 26:-

"Having thus ilrcacly lost the confidence of the Government the Sikh Chiefs in the Sutlej cam pa ig11 forfieted all claim to cons id cration. It was seen that the time had arrived for the introduction of sweeping measures of reform anj the Government unhesitatingly resolv

ed upon a reduction of their privileges. Several important measures were at once adopted.

The police jurisdiction of most of the chiefs

was abolished, the existing system being most unfavourable to the detection and punishment of crime.

All transit and customs d1Jt ics were also abolished; and thirdly, a commutation was accepted for the personal service of the chief and his contingent. The despat ch of the Governor General embodying this resolution was dated November 7th, 1846." While the sweeping changes aforesaid were being introduced, the second Sikh War broke out and that ended in the annexation of tho Punjab. And with that the ne<'d for maintaining appearances and for recognising the Cis-Sutlej Chiefs as rulera came to an end. The British Government then proceeded to act swiftly and firmly, and in June, 1849, they made n declaration that the Chiefs should "cease to hold sovereign powers, should lose all criminal, civil and fiscal jurisdiction, and should be considered as no more than ordinary subjects of the British Government in the posseSBion of certain exceptional

privileges" (').

Pursuant to this declaration, the Chiefs were stripped of all their governmental functions, and the final denouement took place in l1S52 when the British took over the collection of revenue for the jgir lands. The rules for settlement of revenue were made by them, and the actual settlement and collection of revenue were made under their authority, and out of the collections the jagirdars were paid their share.

On these facts, the question is whether it can be said that their was an assignment of the land revenue to the jagirdars. Express grants to th em, there were none.

The point in debate before us is whether grants of the land revenue could be implied from the facts stated above.

A somewhat similar question came up for decision before this Court in Thakar Amar Singhji

v. State of Rajasthan (') with reference to a class of jagirdars in the State of Rajasthan known as Bhomicharas. They were once the rulers ofthe territories which were claimed to be jagirs, and later on the State of J odhpur imposed its suzerainty over them and exacted an annual payment called "Foujbal". The Bhomicharas contended that they had come into possession of the territories as rulers and held them as rulers and not as jagirdars under grants made by any ruler. In repelling this contention, this Court held that a grant may be implied as . well as express, and that on the facts which were proved, the Bhomi1, haras, though they held originally as rulers, must be held to have been reduced to the status of subjects, and that their position was that of jagirdars under an implied grant. The position of the CisSutlej jagirdars bears a close analogy to that of the Bhomicharas in Thakur Amar Singhji's case (').

They became rulers of the territories when thty took possession of them by conquest in 1763.

The first inroads iµto their

(1) Griffin's ·•Rajas of the Punjab", P. 19~. \2)

[1955] 2 S.C.R. 303,

Amarsarjit Sinth

The State of Pt1r1iab

Aiyar J.

AmtrrJa1ji1 Sin, i:, h

Th, Str.t~ of Punjab

Aiyar I.

• • •· 1 •I l•

SVPRE:ME COURT REPORTS [1962] SUPP.

sovereignly wPre made in 1809 when the British established their suzerainty over them and further dcclarecl th, tl the territories of the rulers who died without hl'irs would ceheat to them. Then in 184G the British Government deprived them of police j11risdiction, and the power to levy customs, and in 1849, of all their sovereign functions.

It is not disputed that as a result of all these acts tlwy were reduced to tho position of ordinary subject.~. that indeed being the' objective of the British Govern! ment as avowed in their •kclaratioTl of J11ne, 18!9.

It is with referPnce to this background that we must examine the true charnctcr of thn rev1mw 'etth~ rucnt made in 18:"i2. lf the jagirdars had sunk to the position of suhjc8ts on that date tho payment of revenues to them by the British Government can only be on the basis of an implied grant to them.

Ll'arned Counsel for the jagirdars however demur to this conclusion. They contend that the position of the Cis-Sutlej jagirclars differs fundarnenta.lly from that of the Bhomicharas in Tooba Amar

Singhji'8 r; ise ('), that the latter were conquered by the rulers of J odhpur and com polled to pay to them a tribute er.lied "Foujhal", but that the Cis-Sutlej Chiefs were never conquered by the British, and

never paid any tribute to them, that they were receiving revenue from tho lands as rulers before the British came on tho scene, and that they continued to receive the s<irnc without a break even aftor tho British had established themRelves, and that there was nothing which the British Uoverument did from which a resumption and a re-grant could be inferred.

Under tho circumstances, it is said, tho payment of land revenue to them must be related to their status as sovereigns, and if the British Governrn('nt took upon themselves the work of settlement and collection of land revenue, it was

\I) [ l!l55] 2. S. C.R. 303.

on their behalf and under their authority and under an implied a, rrangement with them.

The assumption underlying this argument jg that as th 9 Cis-u tlej Cfliefs Wdre not conquered by the British, thir satui mus\ neoJisarily be th'1t of sovereigns, and that in consequ9nce the payment of

hnd revenue to them could not be as jagirdars holding under an implied grant from the Government. ThJ.t, however, is not correct. It is settled law that conquest is not the only mode by which one State can acquire sovereignty over the territories belonging to another State, and that the same result can be achieved in any other mode which has the effect of establishing its sovereignty.

Thus, discussing what is an "act of State", the Judicial Committee observed in Cook v. Sir James Gordon

Sprigg (1) :-

"The taking possession by Her Majesty, whether by cession or by any other means by which sovereignty can be acquired, was an act of State." To the same effect are the following observations of Lord Dc1nedin in Vajesingji Joravarsingji v.

Secretary of State for India in Council (2) :-

•'When a territory is acquired by a sovereign State for the first time, that is an act of State. It matters not how the ac, q Liisition has been brought about.

It may be by conquest, it mly be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler." Laying down the law iu similar terms, this Court observed in M/s. Dalmia Dadri Cement Co. Ltd.

v. The Commissioner of Income-tax(') :-

"The expression 'act of State' is, it i~ scarcely necessary to:say, not limited to hostile (1)

(1899) A.C. 572.

(2) (1923-24) L. R. 51I.A.357.

(3) (1959) $.C.R. 729, 739.

Amarsarjit Singh

The Slate of Punjab

Aiya' J.

19~2

AmsnjU Sing~

Tft Wu1 •f Punjob

... !1 .. J.

358 SUPREME COURT REPORTS (1962] SUPP.

action between rulers resulting in the occupation of territories. It includes all acquisitions of territory by a sovereign St.1tn for the first time, whether it ho by ponquest or cession.

Vide Vajesint; ji Joravar Singji v. Su.reiary of State and Thakur Amqr S1'.nyji V State of Rajastha n . " And, more recently, this question has been considered bv this Court in Prorn.od Chandra Deh

v. The State oj Ori.sa (•), and the result was thus stated:-

" 'Act of State' is the taking over of sovereign powers by a Mate in respect of territory which was not till thon a part of its territory, either by conquest; treaty or 0ession,

or otherwise." The fact, therefore, that tho Cis-Sutlcj jagirdars

were not conqucr<d by the British doPs not conclude the question as to whether they aro to be regarded as sovereigns or not. That must depend on who

were in fact exorcising sovereign powers over the territories in the States-the ChicfR or the British.

If the latter, then it must be held that the sovereignty over the area had pa.qscd to them, otherwise than by conquest, and that the true status of the Chiefs was that of subjects.

Viewed in this light, the case does not present much of a problem. It has beon already seen that from 1809 onwards, the Chiefs had been gradually stripped of their powers as so\'<'reigns :rnd that the process uf diHintegr1>tion was completed in 1849.

It is indeed conceded on behalf of the jaginlars that after that datu it was the British Government which was exercising sovereign pow<'rs.over th•. territories and that the Chiefs had been redt1ced to the status of its subjects.

But tho contention that is urgC'd is that nvon when every thing else had hccn

{IJ \.Vri1 Petitions Nos. 79 of l957, 16i and lGa of 19~8 and 4 of 1959 dtcided on November, 16, 1961.

lost, there was still one relic of sovereignty left with them and that was the right to receive the land revenue. If this were the true position, the status of the jagirdars would. be that of subjects of the British in respect of all matters except as to the right to receive revenue, in respect of which alone they would have to be regarded as sovereigns.

This is clearly untenable, because a person cannot be both a sovereign and a subject at the same time.

Dealing with this identical contention, this Court obderved in Thakur Amar Singhji's case (1):

"The status of'a person must be eit!ier that of a sovereign or a subject. There is no tertium quid. The law does not recognise an intermediate Htatus of a. person being partly a sovereign and partly a subject, and when once it is admitted that the Bhomicharas had acknowledged the sovereignty of Jodhpur their status can only be that of a subject. A subject might occupy an exalted position and enjoy special privileges, but he is none the less a subject ; and even if the status of Bhomicharas might be considered superior to that of ordinary jagirdars, they were also subjects." (pp. 336-337) If the statlld of the Cis-Sutlej jagirdars is in alJ other respects that of subjects, the right to receive the revenue collections must also be ascribed to their character as subjects, and that can only be under an implied grant.

But it is contended that the implication of a grant in favour of the jagirdars could not be made hne as in the case of Bhomichans in Thakur Amar Singhji's case (1), because a propoHl for resumption and re-grant of the territories of the Cis-Sutlej Chiefs was actually put forward in 1846 but was negatived. Reference wa.s made to the following .

(I) [!955] 2 S. C. R. 303,

19•1

Amarsarjit Singh

' The Stale of Punjab

Aiya,. J.

360 SUPREME COURT REPORTS [1962] SUPP.

1'6t account thert>of given in J. llf. Douie's "Punjab Am•wujitSinih Land Administration Manual", 1931, p. 45 para •. 102:- 11" Sl•I• oj l'unja!J

A(il.,. J. "lt was indeed pruposl'd in 1846 after the firot Sikh War to declare all the estates forfeit on account of the !aches of their huldcro, and to re-grant them under sanads from the Briti8h Government. But Lord Har<linge deemed it impolitic to proclaim to all Infoi the miscondllct of thi Ci>-Slltloj Chief~ and n11){atived propo3al.

In a sense thn tlHi Cis-Sutlej ja.girdars, great and sm ill, are mdiatized

rulers, and little though they have ag a bo<ly desoncd at our hands, this fact should not be lost sight of in our dealings with them." The argum'n~ is that though a grant 1, oul<l bo implied in certain circumstances where nu express grant was forthcoming, that could not be done when

a proposal for grant is shown to hawi btlen actively _considered and rejected.

This contention svun<ls plausible but brraks dO\\'n when the reason for the rejection of the proptisal is examined.

That wa8, as stated in the despatch of Vml Har<linge <lated 1\ovomber 17, 1846, that "a general measure of resumption would create alarm and must be preceded by a public declaration of the disloyalty of_ the largest portion of the Sikh protected States explaining the grounds of forfeiture," and this was considered inexpedient.

Consistently with thi.> reason it is impossible to hold that the British Government, in declining to make a re; mmption and re-grant, intended to continue the recognition

of the Chiefs as sovereigns.

On the ut her hand, the true inforence to he drawn i:; that the British wanted to give the chieftains only the status of jagirdars but for reasons of policy they sought to do it in such manner as tu avoid publicity, an<l that is why the proposal for making resumption and re grant was not adopted. In the very despatch of

Lord Hardinge dated November 17, 1846, wherein the proposal for resumption and re-grant was dropped, it was stated that th3re was ho need for it as the same ends could be obtained by adopting certain measures such as the taking over of the police admini3tration and customs a 1d the like.

The reason, therefore, for ·, ot making a resumption and an express grant is one which would support an inference of implied grant.

An argument is also sought to be built on the dascription given of the Cis-Sutlej jagirdars as "mediatized rulers" in ti.e extract from J.M. Douie's "Punjab Land Administration Manual" already given, that their status is that of sovereigns.

This expression was originally used with reference to German Princes in Holy Roman Empire who, having been at one time vassals of the Emperor, wtre rnbsequently subjugated by other Princes who were also vassals of the Emperor.

The meaning of the word "mediatise" in modern usage is given in the Oxford English Dictionary, Vol. VI, p. 292, as "8.nnex (principality) to another State, leaving former sovereign his title and (usually) more or less of his rights of Government".

It might be correct to speak of the Chiefs as mediatized rulers in 1846, when, though depriv<'d of their powers in matters of police and customs, they continued to exercise civil and fiscal powers. But when they were divested in 1849 of <tll their Governmental powers they cei; sed to be rulers, "mediatized" or otherwise, and when the revenue settlements were made in 1852, they had no vestige of sovereignty left in them, and had become ordinary subjects of the British with some privileges.

The true character of the revenue settlements made with the Cis-Sntlej jagirdars is brought out correctly, in our opini0n, in the following observations in Tiaden Powell's "Land Systems of British lndia", Vol. II at p. 701;-

Amarsarjit Singh v.

The St>Jtt oj Pu if ab

AQtar J,

Amarsarjil Singh

Tiu Slate of Punjab

Aiyar J.

~2 SUPREME OOURT REPORTS [1962] SUPP.

"Undn our Settlement arrangcmcnt<i, the jagirdar now receives the rcvenu'l, the original land holding communities or individuals being settled with and retaining full proprietary rights.

He in faet is a mere asignco of the rovenue, taking part of what otherwiso would go to the State." Even more explicit is thfl statement of th" position by Kensington in the Ambala Gazetterr, pp.27-28:-

"Tbe final step necessitated by the march of events was taken in 1852 when the revenue settlement begun for British villages in lt!47

was extended to thn villages of the chiefs.

Thereafter the chiefs havo coased to retain any relics of their former power except that they are still permitted to collect their revenues din•ct from their villages, the cash assignment of revenue.

They have sunk to the position of jagirdarn but as such retain a right to the revenue assigned to them in perpetuity." It was argued by the learned Advocate-General who appeared for the respondent th at subsequent to 1852 there has been a courS(• of legislation rolatin!l' to tho jagirs which proceeds on tne basis that their holders were subjects. Th!' preamble to the Punjab Land Revenue Act, 1871 (Act 33 of 1871 ), under which land revenue was settlecl is as follows:-

"Whereas the Government of India is by law entitled to a proportion of tbc procl nee of the land of thii Punjab to he from time to time fixed by itself and whereas it is expedient

to ponsoliclato and define the law relating to the settlement and collection thereof, and to the duties of the Revenue Offic('rn "in the Punjab." It is under this Act that the rev<'ntlO Rettlnmm1t.11 for the jagir lands aro also made. 'fhis Rhows that in

c:ll:eroisin~ fisoal iurisdiction, the British Government

3 S.C.R.

SUPREME COUJ:tT REPORTS 363.

considered itself as acting in its sovereign capacity.

Then there is Punjab Descent of Jagirs Act, 1900 (Punjab Act IV of 1900), which introduced in the Punjab Laws Act, 1S72, ss. S to SC enacting rules of descent "in respect of succession to any assignment of land revenue" and providing for the recognition _ of successors to the deceased jagirdars by the Provincial Government on certain conditions specified therein. We have then the Punjab Jagirs Act V of 1941 dealing with the same topic.

The preamble to the Act states that "it is expedient to consolidate the law governing the assignments of land revenue and other grants hitherto known as jagirs, and to make more precise provisions regarding the manner in which such assignments are to be made or continued in the future." J agir is defined in s. 2 in terms substantially the same as under the present Act.

This Act repeals ss. S to SC of the Punjab 1.aws Act, 1S72, which were inserted by the Punjab Descent of Jagirs Act IV of 1900, and reproduces them in ss. 7 to 10.

Section 7( l)(b) provides for the acceptance by the jagirdars of the I ules of descent framed by the Government by executing a written instrument, and it has been stated before us that the jagirdars have accepted the rules in the manner provided in the section. By way of sample, the copy of the acceptance executed by the petitioner in Writ Petition No. S2 of 1960 has been marked as part of the record. On these materials, the conclusion would appear to be irresistible that the right of the j t5irdtr& to receive .land revenue rests on implied grants by the British Government.

It must be mentioned that in Abdul Ghafoor Khan v. Amar arjit Singh, Regular Second Appeal No. 561 of 1946 in the Punjab High Court there are observations of the learned Judges, '.Vlahajan and Teja Singh, JJ., that thPre was no gift of the jagir lands or assignment of the land revenue by the British Government to the Cis-Sutlej jagirdars, and they a, re relied o~ as a-qthority for t4e cotention t!i11t

Amar1arjit S, ingh

•• The State of Punjab

A!Yar J,

A-narsarjit Sing/a

•• ("M Sta It of Punj tb

Afpar J,

36! SUPREME COURT REPORTS [1962] SUPP.

there was no grant to them exprcs; or implied.

But tho p.:iint for decisio; l m that case was wh Jther these jagirdars could alienate their iriterosts beyond their life-time. It wa.s hld that they could not a.nd the reason therefor was thus Htated: ---

"After the annexation of the Punja.b they (Oia-Sutlcj ja.girdars) were depr!vcd of all vestiges of sovereignty that still remained in them and they wore transformed and given the status of jagirdars, but their possessions, holding and dominions whether in land or other properties liko forts and buildings wcro not in any way disturbed or taken 1•way. They held them in tho same status and poiLion as before."

The dispute in that appeal related to properties of the kind mentioned above and not to land revenue,. and we are unable to regard the obdervations relied on for the jagirdars as authority for the position that no gmnt in respect of the assignments of tho land revenue could be implied in their 'favour.

In the result we must hold that the jagirs which arc subject-matwr of these proceedings fall within s. 2(l)(a) of the Act.

It is next contended that even if an assign ment of land revenue could be implied in favour of the jagirdars, that could only be held to have been made by the British Government and not by the State Go'l'ernment as required by s. 2(l}(a), and thnt, in consequence, the respondent had no right to resume the jagirs in question under the provisions of the Act. , \Vhatover force there might havo been in thi~ contontion, if the question had to be decided only on the terms of H. 2(l){a), we have ins. 2(5) a dofinitiozi ot' State Government which

3 S.C.R.

SUPREME COURT REPORitS 365

is decisive of the question. According to that definition, "State Government" includes "the Government of the State of Punjrib, and all predecessor Gevernments thereof, by whatever name called, the Governor-General or the Governor-Generalin-Council as the case may be." It is not disputed that these words are wide enough to include. the British Government which made the grant, but it is contended that this definition was not in the Act as originally enacted and was inserted by the Punjab Resumption of Jagirs (Amendment) Act,

1959, and that the rights of the parties should be determined in accordance with the law as it stood prior to the amendment. There is no force in this contention, because under s. 1(2) of the Amendment Act, retrospective operation is given to it as from November 14, 1957.

But then it is urged th<tt the amendment was not within the legislative competenc.e of the Legislature of the State of Punjab and is null and void.

The grounds therefor are thus stated in Petition

No. 82 of 1960 :-

"This is nothing but a colourable legislation. The State legislature has no authority to convert Central . Government into State

Government and legislate on Central subject.

The so-called jagir being not a grant by the State Government, the impugned Act has no application and the amended definition of State Government is a fraud on the Constitution." (para 17).

There is no substance in the contention that the Amendment Act is colourable and incompetent. The subject-matter of the legislation is resumption of jagirs. Though the contention was raised in the petitions that this was not a topic within the competence of the State Legislature, as there was no such entry in List II to the Seventh Schedule, no

A.maral'tjil Sin1h

Th• 81,11 of Punj<

Ap.ar J.

Am4rsarj1t Si11gh

•• Tht Stat. of Punjab

Ai1C1TJ.

366 SUPREME COURT REPORTS [1962] SUPP.

argument was advanced in support of it. And clearly it could not b<', as legislation on resumption of jagirs in onn relating to lands, and land revenue and would clearly fall under entries 18 and 45 of List II, which are as follows : Entry 18 :-"Land, that is to say, rights in or over land, land tenure including tho relation of landlord and tenant, aRd the collection of rents transfer and alienation of agricultural lands; land improvement and agricultural loans; colonization."

Entry 45 :- "Land revenue, including the asS('RSm<mt and collection of revenue, the maintenance of lands records, survey for revenue purposPS and records of rights, and alienation of revenue." If the principal legi@lation is intra iire8, it is difficult to see how an amendment thereof with respect to mattera propel'ly pertaining to the subject-matter covered by it could be ultrn vire8. It is immaterial fo,. tho purpose of resumption, whether t.he

lauds sought to be resumed were granted by the State of Punjab as it is now cunstitute<l or by any Government which preceded it. So long as the lnnds nre within the State of Punjab, the legislature h'aR fnll competence to enact a law providing for thcir resumption under entries l 8 and

45. Indeed if the words "made by or on behalf of the State Government" in s. 2 (l )(a) had been omitted in tho principal Act and jagir defined simply as "11.ny assignmnt of land revemvi" the legislation would have boen intra 'cirr,~. and in that case the State could have resumed the jagirs by whomsoover th<'y might have been granted. But it chose to add the words "made by or on behalf of the State Government", and that gave occasion for the contention that, the legislation did not in fact reach jagirs granted by the British Government. Then, with a view to clarify tho position,

3 s.ci.it.

SUPREME COURT REPORTS 367

and set the controversy at rest, the legislature

I96S intervened and enacted the Amendment Act Amarsarjit Singh of 1959, inserting the impugned definition of "State v.

Government". We are unable to see what the lack TheStati•f Punjob of vires is under which this amendment suffers. We AV>arJ. must reject this contention aleo.

This diposes of all the points raised' on the merits in the Writ Petitions and Civil Appeals. In Civil Appeal No. 453 of 1961 preferred by one of the jagirdars, Umrao Singh, his son Satinder Singh intervened, and he asks that suitable directions might be given for protecting his interests in the compensation amount which is payable to the appellant nnder the Act.

He states that under the law the Cis-Sutlej jagirdar is not an absolute owner of the jagir, that he has only a right to enjoy it with- out any power of alienation and that after his life time the next lineal descendant would take it free from all encumbrances created by the previous owner, that the rights of the jagirdar over the compensation amount due on resumption under the Act could only be the same as over the jagir, and that if that is paid to him, his reve<sionary rights would be jeopardised and that therefore adequate provision should be made for protecting them. Our attention has been invited to the decision of this Court in Satiniler Singh v. U mrao Singh (1), where compensation awarded on the acquisition of jagir lands was apportioned equally between the jagirdar and his son.

But there the lands had been acquired under the Land Acquisition Act, 1894, which contains provisions for deciding who is entitled to the compensation amount. But here we are hearing an appeal against an order dismissing a Writ Petition under Art. 226, challenging the vires and applicability of the Punjab Resumption of Jagirs Act, 1957, and adjudication of rival claims to the compensation amount will be wholly foreign to its scope.

(I) A. I. R. (1961) S. C. 9118.

19G2

A.111orsa11il Smgh

•• T /, e Stat' rJ Punjab

Aiy1t1 J.

- - .L /

SUPREME COURT REPOR1~ (1962] SUPP.

But it is pointed out for the intervener that on his application this Court has ordered stay of paymcut of a part of thH compensation amount to

tho appellant pending the disposal of the, appeal, and that a similar direction might now be made in the Judgment, staying pe.yment of a part of the amount for a specified period, so as to enable him to take' steps to protect his rights.

But that was a.n interim order made pending the appeal, and no such order could be passed in the appeal unless it follows on a decision of the rights of the parties, w!tiC"h is, an already stated, outside the soope of the

pre, ent proceedings, vide the .stat£ of Ori.ssa v. 11! adc; n Gop11l Rung/a (!).

We do not therefore propose to say anything on the rights of the intervener or give any directions with reference to the payment of the compensation amount. It is open to thn intervener to take othtr and appropriate proceedings to vindicate his rights.

BPfure concludinl!, it has to be noted that in Writ Petit.ion Nu. 148 of HJ61 thcrc are as many as 72 Petitioners, some of whom are stated not to belong to the category of Cis-Sutlcj jagirdars. Their join<lcr is clearly improper. It is also said that three of tht>m, Petitioners Xo:;. 66, 68 and 69, had filed Writ. Petitions under Art. 226 of the Constituation in t.he Punjab High Court., raising the same' contentions as in the present, that the said petitions had heen dismissed on the merits, and no appeal

h:id been preferred against the Orrlers of dismissnl, and in consequence, the concerned petitioners cannot, on tho decisions of this Court, maintain this

petition.

But. as we aro dismissing these petitions on the merits, no furthn notice need be taken of these points. In the result, the petitions are dismissed with costs, one hearing fet', and the appeals aro dismissed with costs one set.

Petitions and appeal.s dis1ilissed.

(I) [1952] S.C.R. 28.

...