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TMI Blog1964 (3) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India on December 15, 1947. This Agreement came into force as from January 1, 1948. In consequence of this Agreement the entire administration of the State of Dhenkanal was taken over by the State of Orissa pursuant to the authority conferred on it by the Central Government under s. 3(2) of the Extra Foreign Jurisdiction Act, 1947 (No. 47 -of 1947). After the Sanad in question -was issued in favour of the appellant, be was getting a monthly allowance of ₹ 5001- from the Dhenkanal District Treasury on the authority of a permanent Pay Order which had been issued in his favour by the Ruler of Dhenkanal on the basis of the said Sanad. This payment was discontinued by the respondent from 1st of May, 1949 and the several representations made by the appellant to the various authorities of the respondent to reconsider the matter failed. That is why lie filed the present suit on September 26, 1951 in the Court of the subordinate Judge, Dhenkanal, alleging that the act of discontinuing the appellant s pension was illegal, and asking for appropriate reliefs in that behalf. It is from this suit that the present appeal arises. The appellant s case is that in the family of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took his case in appeal, have, in the main, rejected the appellant s contention, with the result that the appellant s suit has been dismissed. The appellant then applied for and obtained a certificate from the High Court and it is with the certificate thus granted to him that he has come to this Court in appeal. The first and the main point which Mr. Setalvad for the appellant has urged before us is that the Sanad on which the appellant s claim is founded, is law. At the time when the Senad was granted, the Ruler of Dhenkanal was an absolute monarch and in him. vested full sovereignty; as such absolute sovereign, he was endowed with. legislative, judicial and executive powers and authority and whatever order tie passed amounted to law. In the case of an absolute monarch whose word is literally law, it would be idle, says Mr. Setalvad, to distinguish between binding orders issued by him which are legislative from other binding orders which are executive or administrative. All binding orders issued by such a Ruler are, on the ultimate analysis, law, and the Sanad in question falls under the category of such law. In support of this argument, Mr. Setalvad has referred Lis to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4(a) referred to the enactments specified in the first column of the Schedule annexed to the Order and made them applicable as indicated in it. Cl. 4(b) provided that as respects those matters which are not covered by the enactments applied to the Orissa States under sub-para (a), all laws in force in any of the Orissa States prior to the commencement of this Order, whether substantive or procedural and whether based on custom and usage, or statutes, shall, subject to the provisions of this Order, continue to remain in force until altered or amended by an Order under the Extra, Provincial Jurisdiction Act, 1947. There is a proviso to this sub--clause to which it is unnecessary to refer. The argument is that by virtue of cl. 4(b) of this Order, the customary law prevailing in the State of Dhenkanal prior to its merger continued to operate as law in the territory of Dhenkanal and that is how it is operative even now, because it has not been repealed or amended. Since the Sanad issued in favour of the appellant is, according to the appellant s case, law, there would be no authority in the respondent to cancel the payment of cash allowance to the appellant merely by an executive order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that branch of jurisprudence which makes a distinction between three kinds of power is entirely inapplicable. In dealing with this aspect of the matter, it is hardly necessary to examine and decide what distinguishes a law from an executive order. A theoretical or academic discussion of this problem would not be necessary for our present purpose, because all that we are considering at this stage is whether or not it would be possible to consider by reference to the character of the order, its provisions, its context and its general setting whether it is a legislative order or an executive order. Though theorists may not find it easy to define a law as distinguished from executive orders, the main features and characteristics of law are well recognised. Stated broadly, a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognised by courts. In that sense, a law can be distinguished from a grant, because in the case of a grant, the grantor and the grantee both agree about the making and the acceptance of the grant; not so in the case of law. Law in the case of an absolute monarch is his command which has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this point, and so, the question as to whether it would be possible or useful to draw a line of demarcation between a Firman which is legislative and that which is executive, was neither debated before the Court, nor has it been examined and decided as a general proposition of law. In The Director of Endowments, Government of Hyderabad v. Akram Ali(A.I.R. 1956 S.C. 60), similar observations were repeated by Bose, J., who spoke for the Court on that occasion. Dealing with the Firman issued by the Nizam on the 30th December, 1920, which directed the Department to supervise the Dargah until the rights of the parties were enquired into and decided by the Civil Court, it was observed that the Nizam was an absolute sovereign regarding all domestic matters at the time when the Firman was issued and his word was law. That is bow the validity of the Firman was not questioned and it was held that its effect was to deprive the respondent before the Court and all other claimants of all rights to possession pending enquiry of the case. In this case again, as in the case of Ameer-un-Nissa Begum(A.I.R. 1955 S.C. 352), the point does not appear to have been argued and the observations are, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r except that the same general observations are reproduced. In the case of Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan([1964] 1 S. C. R. 561), while dealing with the question as to whether the Firman issued by the Udaipur Darbar in 1934 was law or not, this Court examined the scheme of the said Firman, considered its provisions, their scope and effect and came to the conclusion that it was law. Having thus reached the conclusion that the Firman, considered as a whole, was law, the general observations on which Mr. Setalvad relies were reproduced. But as in the case of Phalke (2), so in this case, the decision does not appear to be based on any general or a priori consideration, but it is based more particularly on the examination of the scheme of the Firman and its provisions. In the case of Maharaja Shree Umaid Mills Ltd. v. Union of India(A.I.R. 1963 S.C. 953), a similar question arose for the decision of this Court in regard to an agreement made on the 17th of April, 1941. The point urged before the Court was that the said agreement was law, and reliance was placed on the several general observations to which we have already referred. S. K. Das. J. who spoke fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself, his family, his heirs and descendants in a manner befitting his and their position. That is why out of love and affection for him, the grantor made the khanja grant in the shape of a monthly cash allowance of ₹ 500/- for his life time and also an assignment of land measuring 6942-71-5 acres specified in the Schedule attached to the Sanad. The grant of the said land has been made heritable and the grantee has been authorised to enjoy it from generation to generation. The extent of the grant is also clarified by additional clauses which it is unnecessary to mention. Clause 2 of the Sanad imposes the condition of loyalty on the grantee and his heirs; and by cl. 3 the State undertook to bear all costs for reclaiming the land covered by the grant with a view to render it fit for cultivation, Now, it is plain that there is no legislative element in any of the provisions of this grant. It does not contain any command which has to be obeyed by the citizens of the State; it is a gift pure and simple made by the Ruler in recognition of the fact that under the custom of the family and the customary law of the State, he was bound to maintain his junior brother. The grant, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to suggest that though the Sanad is not law, the amount granted by the Sanad cannot be modified by an executive act of the respondent, and that the respondent must file a suit for that purpose. All that the customary law requires is the making of a suitable provision for the maintenance of the junior members of the family. But what is adequate provision in that behalf will always be a question of fact which has to be determined in the light of several relevant factors-, the number of persons entitled to receive maintenance, the requirements of the status of the members of the family, the total income derived by the family, and other commitments, may all have to be weighed in deciding the quantum of maintenance which should be awarded to anyone of the junior members. In fact, both the Courts below have agreed in holding that having regard to the relevant facts, the grant of the land made by the Sanad would be adequate and appropriate for the maintenance of the appellant. But apart from this aspect of the matter, we do not see how the appellant can seriously quarrel with the validity of the respondent s action in discontinuing the payment of cash allowance to him. The plea that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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