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TMI Blog1955 (4) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... he 15th July 1954 it was brought into effect from the 1st 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 applications made to this Court on the 31st July 1954 the operation of the impugned Act was stayed pending the bearing and final disposal of the petitions, The Petitioners in Petitions Nos. 337, 344, 345, 346, 347 and 349 of 1954 are relations of the Ruler of the erstwhile State of Idar. The Petitioners in Petitions Nos. 338 and 342 of 1954 are relations of the Ruler of the erstwhile State of Chhota Udaipur. The Petitioners 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. 348 of 1954 is a relation of the Ruler of the erstwhile State of Bansda. The Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration 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 competent to exercise the said powers, authority and jurisdiction in such manner and through such agency as it may think fit. ARTICLE 2. The shall with effect from the said day be entitled to receive from the revenues of 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 Ruler 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 in four equal instalments in advance at the beginning of each quarter 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) belonging to him on the date of this agreement. The will furnish to the Dominion Government before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges, quarters, outhouses, etc. which are at the date of transfer of administration in bonafide personal use or occupation of the Ruler or members 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. (4) 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 1st 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 1948 are hereby Guaranteed. This guarantee is without prejudice -Co -the right of Government of Bombay to issue any legislation which does, not discriminate against the states and their subjects. (6) All emblems, insignia, articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in as much as no legislation could be undertaken which would have the effect of depriving the holders of the jagirs of their ownership 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. It was contended on the other hand on behalf of the State of Bombay 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, that the Petitioners were not parties to the agreements of merger and letters of guarantee and that they were not entitled to enforce the same, that even if they be treated as parties thereto the dispute between the parties arose out of the provisions of the agreements and covenants which were entered into or executed before the commencement of the Constitution by the Rulers of the respective states and to wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 any 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 bad 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 far the Petitioners before us are entitled to enforce these obligations against the State of Bombay. The Petitioners were certainly not parties to these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 they would be faced with the bar to the maintainability of the petitions under article 363 of the Constitution which lays down that neither the Supreme Court nor any other Court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of the Constitution by any '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 the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Accession. The dispute therefore in my opinion clearly is 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 Instru- ment 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 undertaken 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. If that was the position the jurisdiction of this Court was ousted and this Court could not interfere in those disputes. Assuming however that the Petitioners were entitled to enforce the obligation and guarantee incorporated in clause 5 of the letters of s guarantee the further difficulty in the way of the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to certain incidents of enjoyment of such ownership. The right of the Government of Bombay to issue any legislation with regard to the enjoyment of the ownership of jagir lands 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 in regard to the same provided however that such legislation did not discriminate against the States and 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 jagir 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 impugned Act on the ground that it discriminated against the States and their subjects. The fetter or limitation upon the legislative power of the State Legislature which had plenary powers of legislation within the ambit of the legislative heads specified in the Lists II III of the Seventh Schedule to the Constitution could only be imposed by the Constitution itself and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned 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 Act XVII of 1939 in Thakur Jagannath Baksh Singh v. The United Provinces 1943 F.C.R. 72 at page 87:- We desire, however, to point out that what they are now claiming is that no Legislature in India has any right to alter the arrangements embodied in their 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 Jagannath Baksh Singh v. The United Provinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute clearly arose out of the letters of guarantee and would by article 363 be placed beyond the jurisdiction of this Court. The Petitions of the Petitioners 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 More 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 contention he has traced the history of Moti More since 1250 A.D. and in any event since 1800 A.D when the then Chieftain of Moti More entered into a treaty with the Maharaja Zalimsinh of Modasa whereby in consideration of payment of ₹ 361 annually the said Zalimsinh agreed to protect Moti More against the attacks of the neighboring State of Doongarpur. He has pointed out that thereafter Modasa was absorbed into the Taluka of Amnagar in 1821 and subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nagement was lifted as a special case and the arrears of Nazrana were ordered to be recovered in installments by the erstwhile State of Idar that in several documents Moti More was described as Bhomia Jagir within the definition of the term Jagir as given in the impugned Act and that the sum of ₹ 361 was still being regularly paid even after merger as Kichari hak . It therefore contends that the Thakore of Moti More, the Petitioner is a jagirdar and Moti More 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 More and the Petitioner from the operation of the impugned Act it will be necessary for the Petitioner to establish satisfactorily that Moti More 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 More 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 Idar, that would not be enough to enable us to grant him the relief prayed for by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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