1964 (1) TMI 63 - SC - Income Tax

Note:- The Dual Life of Treaties: Understanding Their Enforcement in Indian Law

Issues Involved:
1. Whether the rights in controversy could be enforced by Municipal courts.
2. Whether the "Act of State" pleaded by the State of Gujarat is an effective answer to the claims.
3. Whether the Tharao dated March 12, 1948, was a law or an executive order.
4. Whether the Government of Bombay recognized the rights under the Tharao.
5. The impact of the Constitution on the rights acquired under the Tharao.
6. The effect of the letter by Mr. V. P. Menon dated October 1, 1948, on the right of the Government to refuse recognition.

Detailed Analysis:

1. Enforceability of Rights by Municipal Courts:
The main question was whether the rights in controversy could be enforced by the Municipal courts. The Court observed that the rights acquired under the previous ruler are enforceable against the Governments of the Union and the States only if those rights are recognized by the appropriate Government. The Court held that the rights under the Tharao dated March 12, 1948, could not be enforced by the Municipal courts unless recognized by the Government.

2. "Act of State" as a Defense:
The Court examined whether the "Act of State" pleaded by the State of Gujarat is an effective answer to the claims. The Court held that the acquisition of the territory of Sant State by the Dominion of India was an act of State. The Court cited the principle that 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, recognized. The Court concluded that the rights under the Tharao were not recognized by the Government and thus could not be enforced.

3. Nature of the Tharao Dated March 12, 1948:
The Court considered whether the Tharao dated March 12, 1948, was a law or an executive order. The Court observed that the Tharao was not in the form of a legislative enactment and did not seek to lay down a binding rule of conduct. It was merely an executive order granting forest rights to the jagirdars. The Court held that the Tharao was not a law within the meaning of Article 366(10) of the Constitution and could not be continued by Article 372.

4. Recognition of Rights by Government of Bombay:
The respondents argued that the Government of Bombay had recognized the rights under the Tharao by permitting the contractors to carry on the work of cutting timber. The Court held that the permission granted by the officers of the forest department was tentative and expressly subject to the final decision of the Government. The Court concluded that there was no recognition of the rights under the Tharao by the Government of Bombay.

5. Impact of the Constitution on the Rights Acquired:
The respondents contended that the Constitution recognized their rights and protected them under Articles 19 and 31. The Court held that the Constitution does not create rights in property but only protects rights that otherwise existed. The Court concluded that since the rights under the Tharao were not recognized by the Government, they did not exist as enforceable rights at the commencement of the Constitution and thus were not protected by Articles 19 and 31.

6. Effect of the Letter by Mr. V. P. Menon:
The respondents relied on the letter by Mr. V. P. Menon dated October 1, 1948, to argue that the Government had waived its right to repudiate the grant by the ruler. The Court held that the letter could not be used to establish recognition or waiver of the right to repudiate. The Court concluded that the letter did not affect the Government's right to refuse recognition of the rights under the Tharao.

Conclusion:
The appeals were allowed, and the suits filed by the respondents were dismissed. The Court held that the rights under the Tharao dated March 12, 1948, were not enforceable by the Municipal courts as they were not recognized by the Government. The Tharao was an executive order and not a law, and the Constitution did not protect the unrecognized rights. The letter by Mr. V. P. Menon did not constitute a waiver of the Government's right to refuse recognition.

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