9911796707
TMI Blog1961 (10) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... estors, obtained grants from the then Nawab of Junagadh, which was then a ruling State, in respect of lands and, in one case, of a building known as Datar Manzil'. These grants were repudiated or cancelled and the property, subject of the grant, was resumed by the Administrator who took over charge of the administration of Junagadh on behalf of the Dominion of India in 1947 in circumstances which we shall presently state. The respondents brought suits challenging the validity of the orders made by the Administrator. These suits were decreed by the lower court and the decrees were substantially upheld by the High Court of Saurashtra. The principal point for decision in these appeals is whether the impugned orders made by the Administrator arose out of and during an act of State which was not justiciable in the municipal courts. This is the only point which has been agitated before us on behalf of the, appellant-State and very strong reliance has been placed on the decision of this Court in the State of Saurashtra v. Memon Haji Ismail Haji ([1960] 1 S.C.R. 537) where, in circumstances same as those of the appeals before us, it was held that the act of the Dominion of India in as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e problem' We have already stated that the essential facts , are the same in these appeals, though the facts relating to each' of the grants made in favour of the respondents are, different We shall state the essential facts bearing upon. the main problem and then briefly refer to the grants made in each of the India attained independence in 1947. As from the 15th day of August, 1947, two independent Dominions were set up known respectively as India and Pakistan under the Indian Independence Act, 1947 (10 11 Geo. VI. C. 30). Under s. 7 of the said Act, the suzerainty of Iris Majesty over the Indian States including Junagadh lapsed. It released those States from all their obligations to the Crown. The White Paper on Indian States said (at page 32) : It was evident that if in consequence the Indian States became separate independent entities, there would be a serious vacuum not only with regard to the political relationship between the Central Government and the States, but also in respect of the co-ordination of all-India policies in the economic and other fields. All that the Dominion Government inherited from the Paramount Power was the proviso to section 7 of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lers of the principal States of Kathiawar signed a covenant bringing into existence the United State of Kathiawar (later I known as the' United State of Saurashtra) comprising the territories of their States for the welfare of the people and entrusted to a Constituent, Assembly the. task of drawing up a democratic Constitution for that State within the frame-work, of the Constitution of India, to which they had already acceded. On that date Junagadh State had no Ruler nor was any Covenant signed on behalf of the Junagadh State. Later, in December, 1948, the elected representatives of the people of Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh recommended to the Government of India and the Government of the United State of Saurashtra, as it was then called, that the administration of the States mentioned above be integrated with the United State of Saurashtra. The Rulers of the Covenanting States thereupon entered into a Supplementary Covenant with the concurrence of the Government of India to provide for such integration and for the participation of the elected representatives of the people of these States into the Saurashtra Constituent Assembly. Article 3 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... month ago,: (a) 12 bore guns and (b) one M. I. gun. It is, therefore, ordered that. the village J. of Handla should be taken under the State manager. The Revenue Commissioner should mak e necessary managements for the same and report compliance. By that order the management of Kandla was taken over by the State, Though there is no reference to the other village Venderwad in the order the admitted position is that the management of both the villages was taken over. Then on January 8, 1949, the Administrator passed the following order: The Junagadh State Government is pleased to order that the land and villages comprising the Handla estate which is an Inam grant be resumed by the State forthwith. This order also refers only to the Handla estate, but the admitted position is that both the villages were resumed by the order of the Administrator. It is the order dated January 8, 1949, which is impugned by the respondents in this appeal. In Civil Appeal No 497 of 1958 the grant was in respect of a bungalow or building known as 'Datar Manzil'. On 1 March 9, 1948 the Administrator made the following order: The State building situated near Gadhrup Wada at Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e argument is that there was a complete changeover of sovereignty on November 9, 1947 and the act of State was complete; the second step in the argument which is really based on the correctness of the first step is that on such a change-over of 'sovereignty the people of Junagadh, including the respondents, became citizens of the Dominion of India and-were no longer aliens outside the Dominion., We shall now consider the validity of the first step in the argument. In doing so we must make it clear that we must not be understood to have assented to the submission of learned counsel for the respondents that a finding as to change-over of sovereignty or completion of an of State, is a finding of fact pure and simple. In our view, the question essentially is what inference in law should be drawn from the fact proved or admitted relating to the change-over of sovereignty. As the matter was not argued from this stand point in the State of Saurashtra v. Memon Haji Ismail Haji([1960] 1 S.C.R. 537), we have allowed learned counsel for the respondents to address us on this question. Learned counsel for the respondents has made a two fold submission: firstly, he has submitted that the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Junagadh and what the Government of India has stated therein shows clearly enough that there was no changeover of assumption of sovereignty on 'November 9, 1947 in the sense 'which learned counsel for the respondents has contended- for; lastly, it appears to us that the question with which we are concerned in these appeals is not essentially a question as to any disputed facts of State the determination of which is solely in the hands of government; rather it is a question which must be determined by the court. What we have to determine in these appeals is not; the status or boundaries of a particular State territory, but the validity or otherwise of the plea taken on behalf of the appellant-State that the impugned orders made by the administrator were acts of State not justiciable in the municipal courts. There is a long line of decisions in which such a plea has been determined by courts' of law without the necessity of obtaining the opinion of Government. The plea is really a plea with regard to the maintainability of the suits brought by the respondents and must be determined by the courts concerned. At one stage of the arguments learned counsel for the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Saurashtra and the Junagadh State. Similar resolutions were adopted by the representatives of Manavadar, Mangrol,. Bantwa, Babariawad and Sardargarh. Accordingly a Supplement Covenant (Appendix XXXVI) was executed by the Rulers of Kathiawar States with a view to giving effect to the aforemen- tioned resolutions. The administration of Junagadh was taken over by the Saurashtra Government on January 20, 1949, and of the other States some time calling. Accordingly the Constitution treats Junagadh and these States as part of Saurashtra. It would be clear from the aforesaid paragraph that the various steps in the assumption of sovereignty over Junagadh by the Dominion of India, between the dates November 9, 1947, and January 20, 1949, were these: (1) The administration of Junagadh was taken over by the Government of India on November 9, 1947 at the request of the Nawab's Council; (2) during the period the Government of India held charge of the State, an Administrator appointed by the Government of India assisted by three popular representatives conducted the administration of the State; (3) in February, 1948 there was a referendum and the people of Junagadh voted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnection refer to ss. 5 and 6 of the Government of India Act, 1935, as they stood at the relevant time. Section stated inter alia that the Dominion of India shall, as from the 15th day of August, 1947, be a Union, comprising (a) the, Governor is' Provinces, (b) the; Chief Commissioners' Provinces, (c) the Indian States acceding. to the, Dominion in the manner provided by s. 6, and (d) any other areas that, may with the consent of the Dominion be included, in the Dominion. Junagadh was neither a Governor's nor a Chief Commissioner's Province. It did not accede in the manner laid down in s. 6. It was not, therefore, a State acceding to, the Dominion. Nor do we think that the territory of, Junagadh State was included within the territory of the Dominion in the sense of el. (d) of s. 5 as from November 9, 1917. The process of assumption of sovereignty was not yet complete and the Dominion of India did not treat the territory of Junagadh, as part of its own territory. The Dominion Government gave its concurrence to the Supplementary Covenant executed by the Rulers of Kathiawar by which the States of Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l succession. In the case before us, as long as Junagadh State' continued as such, there was no such succession and even though the Dominion of India took over the administration of Junagadh and exercised control therein, it did not assume de jure sovereignty over it. Therefore, the act of State did not terminate till January 20, 1949, when the Dominion of India assumed de, jure sovereignty over Junagadh by its integration into the United State of Saurashtra. It is perhaps necessary here to refer to two decisions on which learned counsel for the respondents has relied: In re: Southern Rhodesia([1919] A. C. 211) and Sammut v. Strickland ([1938] A. C. 678). In the first decision it was observed in connection with the conquest of certain territories in Southern Rhodesia, that a proclamation of annexation is not essential to constitute the Crown owner of the territory as completely as any sovereign can be owner of lands publici juris; a manifestation of the Crown's intention to that effect by Orders in Council dealing with the lands and their administration, is sufficient for the purpose. These observations were made in the context of a question not between State and State b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a distinction was sought to be drawn between ceded territories those acquired by an act of cession from some sovereign power, and those ceded by the general consent or desire of the inhabitants. It was held that so far as concerned the prerogative right of the crown to legislate by Letters Patent or Orders in Council for the' ceded colony, the distinction was of no materiality'. It is difficult to see how this-decision affords any assistance to the respondents. It is indeed true that the people of Junagadh voted for accession to the- Dominion of India-, but no Accession actually took place and later there was a merger in' the United State of Saurashtra with the consent of the people of, Junagadh and the Government of India Till, such merger there was,, no cession of territory in the I sense either with or without the Consent of the people. In view, the only conclusions which follows from the facts which we have earlier stated is that there was no assumption of sovereignty by the Dominion of India over Junagadh before January 20, 1949. This disposes of the main argument advanced on, behalf of the respondents, and it is unnecessary in these appeals to consider t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the principle of Virendra Singh's case (2) cannot be extended to the entirely different set of circumstances in which the Government of India Act, 1935, was made and a. 299 thereof did not affect the doctrine that municipal tribunals have no authority to give a remedy in respect of actions arising from an act of State. He also drew our attention to a decision of this Court in Jagannath Agarwala v. The State of Orissa ([1962] 1 S.C.R. 205) in which in respect of some claims made against the State before the coming into force of the Constitution but enquired into and rejected by Government after the coming into force. of the Constitution, it was held that unless the now sovereign had expressly or impliedly admitted the claims, the municipal courts bad no jurisdiction in the matter. We consider it unnecessary to give our decision on these 'submissions, because it is obvious that before the Dominion of India assumed de jure sovereignty over Junagadh, the respondents were not in a position to call to their aid the provisions of s. 299 of the Government of India Act, 1935. In the appeals before us we are dealing with orders made the Administrator before the act of ,Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant- State to raise, that plea' , In the High Court also the same plea of: act of State was urged on behalf of the appellant- State but was rejected by the High Court on the basis of its decision in State of Saurashtra v. Memon Haji Ismail Haji Valimamad(All. R. 1953 Saurashtra 180). That decision, we have stated earlier, was overruled by this Court in State of Saurashtra v., Memon Haji Ismail Haii (1960) I S. C. R. 537) Learned counsel for the respondents then, referred us to an order dated February 9, 1949, 'in which it was stated that inam grants were resumable at the pleasure of Government and therefore the orders passed on January, 8, 1949, could not be cancelled. Apparently the orders dated February., 9, 1949 was passed on some representation made, at the instance of the plaintiffs-respondents. We have to read the two orders, one dated January 8, 1949, and the other dated February 9, 1949, together. If so read, it is clear that the order dated January 8, 1949, was, made by the Administrator not under the authority of any law but as an act of State.. Learned counsel for the respondents relied on the decision in Forester v. The Secretary. of State for India (1872) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. After India attained independence on August 15, 1947, the suzerainty which the British Crown held over the State of Junagadh lapsed and that State became completely sovereign. That was the effect of the Indian Independence Act. Shortly thereafter, the Ruler of Junagadh went to Pakistan leaving the State to its fate, with the result that the affairs of that State fell into disorder. At the invitation of the people of the State the Government of India decided to step in and accordingly took over its administration through the Regional Commissioner, Western India and Gujarat States Region on November 9, 1917. A proclamation was issued by him to the effect that he had assumed the administration of Junagadh as from that date. On November 14, 1947, he appointed an Administrator for administering the territory. The Administrator passed orders on different dates resuming the grants in favour of the respondents and dispossessed them. Thereafter on January 20, 1949, the territory of Junagadh was with the approval of the Government of India integrated with the United States of Saurashtra and the Administrator ceased to exercise any functions as from that date. The resumption of the gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the subject of a displaced sovereign vis-a-vis the now sovereign. In the-words of Lord Dunedin in Vajesinghji v. Secretary of State for India (1921) L.R. 51 I. A. 357), it is as follows When a territory is acquired by, sovereign State for the first time that is an act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, 'it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. 'Any inhabitant of the territory can make good in municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognized. Such rights as he had tinder the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce those stipulations in the municipal courts. The right to enforce remains only with the high contracting parties. This statement of the law has' been accepted by this Court in M/s. Dalmia Dadri Cement Co., Ltd. v. Commissioner of Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laws prevailing therein were continued and that the Alienation Settlement Act which was one of such laws, conferred on the granted of rights against the Ruler. By continuing this law the Dominion of India, accordant, to him,. must be deemed to have recognized the respondents rights under the grants. For enabling us to consider, the point it was necessary for the respondents to place before us the Order of the Dominion of India under S. 4 of the Extra Provincial Jurisdiction Act, 1947 Which alone empowered it to prescribe the laws which of the Indian Dominion, over-which it had assumed sovereignty or administrative control. Similarly they had to place the Alienation Settlement Act of Jungadh before us. In. the absence of this material we cannot consider the argument at all. Mr. Pathak, however contended that if sovereignty was assumed on November 9, 1947, the residents of Junagadh became the citizens of the Indian Dominion and were therefore, entitled for the protection of s. 299(1) of the constitution Act, 1935.` This provision runs thus: No person shall be deprived of his property save by authority of law . What s. 299(1) protects are the rights of a person to property w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
