STATE OF MYSORE

ANANT VINAYAK PATWARDHAN

Februan 26, 197~

[K. K. MA THEW AND A. ALAG!R!SWAMI, JJ. J

Bo111bay Merged Terri1ories Miscellaneous Alienation Abolition Act, 1955, Section 11-Tainat (Casli Allowance) granted to respondents ancestors by tlie Pesliwas-Allowa11ce co/ltinued b_v- Ruler of Ja1nkhandi under terms of 11eaty with East India Co.-S11bseque111ly Ruler of Jamkl1andi converted allow- '11lCe to one for Jife-Whetl1er, cash allowance payable was permanent and hereditar)'-Comtnutation amount whether deductible fro1n cash allowance for paynzerit of comve11sa1ion.

The respondent's ancestors had been granted a cash allowance called Tainat by the Peshwas. After the defeat of the Peshwas by the British, by the Treety of Gulgallee with Jamkhandi dated 6-6-1819 by the then Governor of Bomba1 on behalf of the East lndia Co. one of the terms which were granted to Gopalrao Jamkhandikar was rec(\rding the terms which he held from the Govt. of His Highness the Pesbwa, for the payment of his contingent (apparently army) out of his personal allowance. It stated that he was to continue all allowances and no complaints on this befl(l were to be suffered to reach the Government. The allowance to the resi, x>nden.t's ancestors was ooe such allowance. The extract from the Petha Khata wahi of 1942·43 shows that the grant was permanent.

Bl).t in 1944, the then Ruler of Jamkhandi converted the allowance to one for life.

After the Jamkhandi State was merged in the State of Bomba}', the Bombay Legislature passed the Bombay Merged Terri torits Miscellaneous Alienation Abolition Act, 19$5.

The respondent filed an application on 21·7·1956 under section 17 of that Act claiming that the cash allowance payable was both pennanent and hereditary but that he learnt that the Ruler of Jamkhandi had passed an order that the said allowance be continued till his (applicant's) life time when the same .was continued to him after the death of his father. He mentioned that he had moved the Rajasaheb by an application which was not disposed of. HeJ therefore, claimed that he wouJd be entitled to seVC}l times the cash allowance, permanent on the basi..'1 that it was permanent oi in the alternative to three tlfncs the ci&)t allowance on the basis that it was -payable for life. However, by this time, the Ruler of 1 amkhandi was no longer a Ruler and was not in a position to be of any assistance to the respondent on the basis of his application. The Aistant Commissioner of Jamkhandi passed en order granting a sum equal to three times the annual sum which the respondent was receiving.

On appeal by the respondent to the Appellate Tribunal, the Tribunal held that the Ruler of Jamkh•ndi had sovereign J)()Wer and was the fountain head of alt sources of authority, that is. executive, judiciary and legislature and be could change the Tainat cash allowance at his sweet will and pleasure. The Tribunal accordingly dismissed the appeal. ne respandent thereupon filed a writ petition before the High Court. The High Court directed that a sum equll . to seven times the annual ca"h allowance be paid to the resnondent on the basis that the grant was hereditary.

Th~ State Government thcreupan appealed by a special leave to this Court .

. Allowing the appeal,

HELD : (I) The constitutional position of the Ruler of every one of the Jndian States before their integration with the rest of India and comina. into force of the Constitution of India was that he enjoyed uncontroUcd sovereign

powers and there were no constitutional limitations upon his authority H to act in any Of the three capacities of legislature, executive and judiciary.

It follows, therefore, that if the Ruler of Jamkhandi bad changed the perma nent cash allowance granted to the respondent~ 11.ncestnrs to one for life, it is legally valid and il cannot be questioned. [463 A-"Bl

MYSORE v. A. v. PA TWARDHAN (A lagiriswami, J. ) 4 61

Anieer-up-Nissa Btgu1n v. MtJ/1b"otib Begum, A.I.R. 1955_ S.C. 352, relied on.

(II) The Tainat allowance being service allowance the deduction of the com.mu'!ltion amount is f9r the payn1ent to tbe person -Who was doing. the

sev1ce 10 place of the cash allowance -holder. That is why what was being -paid to the respondent year after year was the cash allowance minus the

commutation amount.

The commutatiori ariiount is, therefore, deductible from the cash allowance while calculating the compensation i)ayablc to the respondent.

[463 D-E] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1741 qi \967.

Aooea! bv .soecial leave. from iudgment and order dated the -30th November, 1962 of the Mysore Hiilh Court at Bangalore in Writ Petition No. 777 of 1961. V. K. Krishna Menon, M. V'eerappa and S. P. Singh, for the appellant.

R. B. Datar and M. L. Verma, for tbe respondent.

The Judgment of the Court was delivered by- ALAGIRisWAMI, J.-The respondent's ancestors had been granted a cash allowance called Tainat by the Peshwas. After the defeat of D the. Pesh was by the. British, by the Treaty of Gulga!lee with Jamkbandi dated 6-6-1819 by the Hon'ble Mr. Elphinston, Governor of Bombay

on behalf of the East India Company one of the terms which .were gran, ted tc, Gopalrao J amkhandikar was regarding the terms which he hell! ft om the Government of His Highness the Peshwa, for the paymeru: ofbis contingent (apparently army) of his personal allowance.

It stated that he was to continue all allowances and no complaints on this head were to be suffered to reach the Government (East India cOlnpany).

The allowance to respondent's ancestors was .oµe such allowance. This allowance seems t9 have amonnted to .a sum of Rs. 2010/- minus a sum of Rs. 240/- being the commutation amount as shown in Petha Khata Wahi Extract of 1942-43. That exact also shows that this grant was iiermanent. But. in 1944 the then ruler of Jamkhandi seems to have converted this ... 3Jiowance to one for life.

After the JamkhandiState was mered in the State of Bombay, the Bombay. Leiislature .passe.d the. Bombay, Merged territories Misci:l~ laneous. Alienations. Abolition Act, 1.955.

The rclent filed an application on 21-'7'1956 nnder s. 11 of. that 11ctbefore the Assistant Commissipner .. Jamkhandi clai\llin~ that the cash allowance payable was both permanent and hereditary but that he learnt th.at.the ruler of G Jamkhandi had passed an order that the. :said . cash .allowance be continued till his (applicant's\ life time when the same Was continuell to him after the death of his father. .He mtioned that .he had Jllaved the Raiasabeb bv an aoolicatiori which was not finally disposed of.

He. therefore, claimed that Ile would be entitled to Rs. 21.000/- 'at

H 7 times ofthe cash allowance on (Jiebasis that it was Rs. 3,0QO/- a vear and. oermanent or in .the a1tenative t-0 Rs. . 9,0Q-Or: being three times the cash .. allowance on die basis that it was payable for Jife. It would be nP\)reciated 'that by this time \he Ruler of J amkhandi was no longer .a ll\11er and was certaiit1y not in a i><lsb 17-L954SupCl/74

t&2

'SUPREME COURT REPORTS

[ 19741 3 S, C.R.

W>~ to be of any .assistance to .the respondent on the basis of his application. The AssJStant Conuwssioner passed an order granting a sum <If ~· 5172-12-0 being three times the annual sum of Rs. 1724-4-0 which the respondent was receiving. The respondent then filed an appeal to the Mysore Revenue Appellate Tribunal as by that time the a{Ca. had become part of the Mysore State. In that appeal he mentioned that through mistake his name has been recorded as holder of the Tainat cash allowance for life only. He also .mentioned that his apPlication to the Rajasaheb of J amkhandi for correction of the mistake was still pending even though the state of Jamkhandi was merged. Tribunal dealt with the argument before it on behalf of tile respondent to the efieet that the ruler of J amkhandi had no power to change the cash allowance to. one for life according to his own earlier order passed in. the year 1909-10 it was permanent and in the view that .the ruler of J amkhllndi had sovereign powers and was the tountain hea.d of all source of authority, that is. executive, judiciary and legislature, he could change the Tainat cash allowance at his sweet will and pleasure, dismissed the appeal.

The respondent thereupon filed a writ petition No:· 777 before the High Court of My8ore.

There also he atalcdthat through mistake his name was recorded as the holder of the Cash. allowance for life only, and also urged that the ruler of the Jamldiandi>State had no Power to interfere with the Tainat cash allowance.

The Hiab Court diU not deal with the question whether the Ruler of lamliliandi had, in' 1944, the powei'to convert a hereditary grant to one for life but directed that a sum of Rs. 14,070 being seven tnnes the annual cash allowance of Rs. 2,010 be paid to the respondent on the basis that the grant was hereditary.

This appeal is against thai 1wlgment .and order of the High Court.

We are of opinion that clearly the decision of the Mysore High Court is wrong. In Ameer-un-Nissa Begum v. Mahboob Begum (AIR

}!1~5 SC 352) this Court stated the constitutional position of the Nizam of' Rerabad in these words :

" .... It cannot be dispute that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution, the Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme legislature the su1>reme judiciary and the supreme head of the executive. and there were no constitutional limitations uoon his authority to act in any 'of these capacities. The 'Firmans were expressions of the sovereign will of the Nizam and they were bindin~ in the same way as any other law;-nay, they would override all other law.s which were in con, fiict with them. So, long as a particular 'Fueman' held the field, that alone would overn or regulate the rights of the parties concerned, though it could be annull.ed or l!lodi lied by a later 'Firman' at any time that the Ntzam wtlled.

The Nizam was not only the supreme legislature, he was the fountain of justice as well. When he constituted a new Court, he could, according to ordinary notions, be dcced to have exercised his legislative authority.

When agam he

MYSORE v. A. V. PATWARDHAN (Alagiriswami, /.) 463

affirmed or reversed a judicial decision, that may appropriately be described as a judicial act. A rigid line of delllarcation, however. between the one and the other would from the verv natlire of things be •not .iustified or even possible."

That sets out the constitutional position of the ruler of every of the Indian States before their integration with the rest of India and com~ ing into force of the Conslitution of India. It follows therefore that if the ruler of Jamkhandi hid changed the panent cash allowance granted tC' the respondens's ancestors to one for life it is legally valid and it cannot be questioned. The extract from the Jamkhandi State Gazelle dated 7-8-1920 publishing rules regarding ca; h allowance itself shows that those rules cancelled the earlier rules and tliose rules also could be appropriately cancelled by the subsequent rules. Any application made by the respondent to the former .ruler of Jamkhandi after the State was merged in Bombay State will not help him.

The ruler !J; id by that time lost all his powers. The decision of the Mysore Revenue Aj>peUate Tribunal is, therefore, right.

There is only one small point which has got to be mcntione, J. The compensation allowed was three times the cash allowance. As already mentioned the Petha Khata Wahi extract shows tho allowance at Rs. 2010.80 minus Rs. 240.00 being the commutation amount. These allowances being service allowances, the deduction is for the paJyment to the person who was doing the service in place of the cash allowance holdec. That is why what was being paid to the respondent year after vear was the cash allowance minus commutation amount. The Mvsore High Court was. therefore, wrong in holding that this sum of Rs .. 240 cannot be deducted from the cash allowance while calculatin2 the compensation payable to the respondent.

We must mention that when this appeal was ta<en up for hearing Mr. Datar apl'l:aring for the respondent con(ended lhat as this Court in M.P. State v. Ranojirao (1968 3 SCR 4119) has held that the Ma<lha Pradesh Abciition of Cash Grants Act violates Art. 19(1)(!) or Art. 31(2) of the Constitution, and so struck it down, the Bombay Merged Territories Miscellaneous Alienation Abolition Act is also liable to be struck down on the same ground. He, therefcre, wanted that h< shuuld be given the liberty to move the High Court for striking do\vn the Act under consideration in this case. \\'c do not propose to express any opinion as to whether it would be open him to do so in tl1e backt; round of this case. There is nothing to prevent him f!'Ot'1 filing on appbcation if he is so advised.

Jn the result this appeal is allowed and the judgment and order of the High Court of Mysore set aside. As the special leave was granted oa the condition that the appellant would in any event pay to the resp0ndent his of the appeal, the appellant shall pay the respondent's costs.

S.B.W.

J8-L954SupCI /74 Appeal allowed.