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TMI Blog1959 (8) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... ation that the Secretariat Order No. 2/3289 dated October 1, 1948, was illegal, unjust and against all canons of natural justice . He also asked for an alternative relief that the second defendant do return to him a sum of ₹ 30,000 plus ₹ 541-2-0, being the consideration and expenses of a transfer of immovable property resumed under the said Order. The suit was decreed by the Civil Judge, to whom after integration the case was transferred, and the decree was confirmed by the High Court by the judgment under appeal. It may be pointed out that during the course of this suit, a third defendant, namely, the Mamlatdar, Viswadar was also impleaded, because the property of Abu Panch had passed into the management of the Saurashtra Government under what is described in the case as the Gharkhod Ordinance. It may further be pointed out that the two defendants other than the State of Saurashtra were discharged from the suit, and it proceeded only against the State of Saurashtra for the relief of declaration above described. The facts of the case areas follows: One Ameer Ismail Khokhar Kayam Khokhar purchased a plot of land in Junagadh town from the State of Junagadh, and bui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritory, and to give even justice to all communities. The majority community of the State has a special responsibility for the protection of the minorities. All the Junagadh State Officials and subjects are, therefore, invited to offer unconditional and loyal support and cooperation to the new Administration. Any act of non-cooperation and disloyalty must in the interest of the people and for the preservation of peace and order be dealt with and shall be dealt with firmly. Junagadh, N. M. Buch, 9th November, 1947. Regional Commissioner, Western India Gujarat States Region. On November 14, 1947,the Regional Commissioner by a Notification (No. 6 of 1947), appointed Shri S. W. Shiveshwarkar as Administrator of Junagadh State. That Notification was as follows: Mr. S. W. Shiveshwarkar M.B.E., I.C.S. on being relieved as Secretary to the Regional Commissioner, Western India and Gujarat States Region, is appointed Administrator of the Junagadh State vice Rao Saheb T. L. Shah, B.A. Under my general guidance and supervision the Administrator will have full authority to pass all orders and to take all action necessary to carry on the affairs of the Junagadh State. Junagadh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Sir Raymond West in Col. Webb's Political Practice, wherein the author had stated what the rights of Rulers were to- resume grants made by them and stated that such resumption was not possible by the Rulers. The High Court also stated that this action could not be regarded as an act of State and further that the jurisdiction of the Courts was neither barred by s. 5 of the Extra-Provincial Jurisdiction Act nor by s. 4(2) of Ordinance No. 72 of 1949. In this appeal, the learned Solicitor-General on behalf of the State of Saurashtra abandoned three of the contentions which were raised in the Courts below. He said that the State was not relying upon the power of Shri Shiveshwarkar as successor to the Ruler of Junagadh to resume this property, and no reference to Sir Raymond West's minute was therefore necessary. He also said that the State Government did not seek to justify the resumption nor question the jurisdiction of the Court under the Extra-Provincial Juris- diction Act and the above-mentioned Ordinance. He pleaded that the action of Shri Shiveshwarkar was an act of State performed on behalf of the Government of India, and was therefore not justiciable in Municipal Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the law? This question was posed in Secretary of State in Council for India v. Kamachee Boye Sahaba (1859) 13 Moore P. C. 22) by Lord Kingsdown in these words:- What was the real character of the act done in this case? Was it a seizure by arbitrary power on behalf of the Crown of Great Britain, of the dominions and property of a neighbouring State, an act not affecting to justify itself on grounds of Municipal Law ? Or was it, in, whole or in part, a possession taken by the Crown under colour of legal title of the property of the late Raja of Tanjore, in trust for those who, by law, might be entitled to it on the death of the last possessor? If it were the latter, the defence set up, of course, has no foundation. In that case the Supreme Court of Madras was moved by a bill to claim certain properties seized on the death of Raja Sivaji of Tanjore without heirs. The claim was accepted by the Supreme Court of Madras but was rejected by the Privy Council. Lord Kingsdown observed in the case:- The general principle of law could not, with any colour of reason, be disputed. The transactions of independent States between each other are governed by other laws than those w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the high contracting parties. These cases and others like Cook v. Sprigg (1899) A.C. 572), Hoani Te Heuheu Tukino v. Aotea District Maori Land Board (1941) A.C. 308) were approved and applied by this Court in Dalmia Dadri Cement Co. v. Commissioner of Income-tax ([1959] S.C.R. 729, 740-41) in which an agreement with the ex-Ruler of Jhind for tax concessions was held not binding upon the Income-tax authorities after the merger of the State with the Union of India and the defence of an act of State was upheld. Venkatarama Aiyar, J., then observed:- When the sovereign of a State-meaning by that expression, the authority in which the sovereignty of the State is vested, enacts a law which creates, declares or recognizes rights in the subjects, any infraction of those rights would be actionable in the courts of that State even when the infraction is by the State acting through its officers. It would be no defence to that action that the act complained ,of is an act of State, because as between the sovereign and his subjects there is no such thing as an act of State, and it is incu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n act of State. One such case was Forester and Others v. Secretary of State for India (1). In that case one of the questions was whether there was an act of State at all,--a question which the Courts can legitimately consider. It was held that the Begum, whose estate was seized by the East India Company after her death, was not a sovereign princess but a mere Jaidadar and the resumption of her jagir upon her death was not an act of State but an act done under a legal title. It was observed :- The act of Government in this case was not the seizure by arbitrary power of territories which upto that time had belonged to another sovereign State; it was the resumption of lands previously held from the government under a particular tenure, upon the alleged determination of that tenure. The possession was taken under colour of legal title, that title being the undoubted right of the sovereign power to resume, and retain or assess to the public revenue, all lands within its territories upon the determination of the tenure, under which they may have been exceptionally held rent free. If by means of the continuance of the tenure or for other cause, a right be claimed in derogation of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Saurashtra and the Junagadh State. Similar resolutions were adopted by the representatives of Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh. Accordingly, a Supplementary Covenant (Appendix XXXVI) was executed by the Rulers of Kathiawar States with a view to giving effect to the aforementioned resolutions. The administration of Junagadh was taken over by the Saurashtra Government on January 20, 1949,. .. .. . Accordingly the Constitution treats Junagadh and these States as part of Saurashtra, It would appear from this that between November 9, 1947 and January 20, 1949, there was no formal annexation of the State by the Dominion of India, though the Central Government through its Regional Commissioner, Western India and Gujrat States Region was maintaining law and order and carrying on the administration. On November 16, 1947, the following Notification was issued by the Administrator:- NOTIFICATION No. 9 of 1947. It is hereby ordered that the Junagadh State Order No. 568 of 1944 is cancelled. The State Council created by the said order is hereby dissolved. Any reference, required by any Enactment, Rules, Orders, Convention, Usage etc. to be made to the Counci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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