Full Judgment Text
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PETITIONER:
PREM NATH KAUL
Vs.
RESPONDENT:
THE STATE OF JAMMU & KASHMIR
DATE OF JUDGMENT:
02/03/1959
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
DAS, SUDHI RANJAN (CJ)
DAS, S.K.
WANCHOO, K.N.
HIDAYATULLAH, M.
CITATION:
1959 AIR 749 1959 SCR Supl. (2) 270
CITATOR INFO :
R 1962 SC1737 (11)
RF 1972 SC1738 (16)
F 1973 SC 231 (15)
R 1976 SC1031 (11)
RF 1990 SC2072 (44)
ACT:
Landed Estate, Abolition of-Validity of enactment-
Legislative Competency of Yuvaraj Karan Singh-Jammu and
Kashmir Big Landed Estate Abolition Act, XVII of 2007.
HEADNOTE:
This appeal challenged the validity of the Jammu and Kashmir
Big Landed Estate Abolition Act, XVII Of 2007 which was
enacted by Yuvaraj Karan Singh on October 17, 1950, in
exercise of the powers vested in him by S. 5 of the Jammu
and Kashmir Constitution Act 14 of 1996 (1930) and the final
proclamation issued by Maharaja Hari Singh on June 20, 1949,
by which he entrusted all his powers and function to the
Yuvaraj. The object of the Act was to improve agricultural
production by abolishing big landed estates and transferring
land to the actual tillers of the soil. The suit out of
which the present appeal arises was brought by the appellant
in a representative capacity for a declaration that the Act
was void, inoperative and ultra vires and that he was
entitled to retain peaceful possession of his lands. Both
the trial Court as also the High Court in appeal found
against him and dismissed the suit. Hence this appeal by
special leave.
The validity of the Act was challenged mainly on the ground
that Yuvaraj Karan Singh had no authority to promulgate the
Act. It was contended that (i) when Maharaja Hari Singh
conveyed his powers to the Yuvaraj by his proclamation of
June 20, 1949, he was himself a constitutional monarch and
could convey no higher powers, (2) the said proclamation
could not confer on the Yuvaraj the powers specified
therein, (3) the powers of the Yuvaraj were substantially
limited by his own proclamation issued on November 25, 1949,
by which he sought to make applicable to his State the
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Constitution of India, that was soon to be adopted by its
Constituent Assembly, in so far as it was applicable, (4) as
a result of the application of certain specified Articles,
including Art. 370 of the Constitution of India to the State
of Jammu Kashmir, the Yuvaraj became a constitutional
monarch without any legislative authority or powers and (5)
the decision of the Constituent Assembly of the State not to
pay compensation was invalid since the Assembly itself was
not properly constituted.
Held, that Yuvaraj Karan Singh, when lie promulgated the
Act, had the power to do so and its validity was beyond
question.
271
It was indisputable that prior to the passing of the
Independence Act, 1947, Maharaja Hari Singh like his
predecessors, was an absolute monarch so far as the internal
administration of his State was concerned. Section 3 Of the
Regulation 1 of 1991 (1934) issued by the Maharaja not only
preserved all his preexisting powers but also provided that
his inherent right to make any regulation, proclamation or
ordinance would remain unaffected. The Constitution Act 14
of 1996 (1939) promulgated by him did not alter the
position. Sections 4 and 5 of that Act preserved all the
powers that he had under s. 3 of the Regulation 1 of 1991
and S. 72 preserved his inherent powers so that he remained
the same absolute monarch as he was before.
With the lapse of British paramountcy on the passing of the
Independence Act, 1947, the Maharaja continued to be the
same absolute monarch, subject to the agreements saved by
the proviso to S. 7 Of the Act, and in the eyes of
international law could conceivably claim the status of an
independent sovereign.
It was unreasonable to suggest that the provisions of the
Instrument of Accession signed by the Maharaja on October
25, 1947, affected his sovereignty, in view of cl. 6
thereof, which expressly recognised its continuance in and
over his State.
There was no substance in the argument that as a result of
his proclamation issued on March 5, 1948, which replaced the
emergency administration by a popular interim Government
headed by Sheik Mohammad Abdullah and constituted a Council
of Ministers who were to function as a cabinet, the Maharaja
became a constitutional monarch. The cabinet had still to
function under the Constitution Act 14 of 1996 (1939) under
the overriding powers of the Maharaja.
When the Maharaja- on June 20, 1949, therefore, issued the
proclamation authorising the Yuvaraj to exercise all his
powers, although for a temporary period, it placed the
Yuvaraj in the same position as his father till the
proclamation was revoked. The Maharaja was himself an
absolute monarch and there could be no question as to his
power of delegation.
In Re. Delhi Laws Act, 1912, [1951] S.C.R. 747, referred
to.
The proclamation issued by the Yuvaraj on November 25, 1949,
did not vary the constitutional position as it stood after
the execution of the Instrument of Accession by the Maharaja
nor could it in any way affect the authority conferred on
the Yuvaraj by his father.
The contention that the application of certain specified
Articles of the Indian Constitution to the State by the
Constitution (Application to Jammu and Kashmir) Order (C. O.
10) issued by the President on January 26, 1950, affected
the sovereign powers of the Yuvaraj was not correct.
Neither the scheme of Art. 370 nor the explanation to cl.
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(1) of that Article Contemplated that the Maharaja was to be
a constitutional ruler. The temporary provisions of that
Article were
272
based on the assumption that the ultimate relationship
between India and the State should be finally determined by
the Constituent Assembly of the State itself. So, that
Article could not, either expressly or by implication, be
intended to limit the plenary legislative powers of the
Maharaja. Till the Constituent Assembly of the State,
therefore, made its decision, the Instrument of Accession
must hold the field.
The initial formal application of Art. 385, which was sub-
sequently deleted from the list of Articles applied to the
State, could not justify the conclusion that it had
adversely affected the legislative powers of the Yuvaraj.
There was no substance in the contention that the decision
of the Constituent Assembly not to pay compensation was
invalid as the Assembly itself was not properly called or
constituted. There could be doubt that the Yuvaraj was
perfectly competent to issue the proclamation dated April
20, 1951 in variation of the Maharaja’s, under which the
Assembly was ultimately constituted, and so the Assembly was
properly convened.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 152 of 1955.
Appeal by special leave from the judgment and order dated
March 25, 1953, of the Jammu and Kashmir High Court in Civil
First Appeal No. 4 of 2009.
N.C. Chatterjee, Gopi Nath Kunzru and Naunit Lal, for the
appellants.
H.N. Sanyal, Additional Solicitor General of India,
Jaswant Singh, Advocate General for the State of Jammu and
Kashmir, R. H. Dhebar and T. M. Sen, for the respondent.
1959. March 2. The Judgment of the Court was delivered by
GAJENDRAGADKAR, J.-This appeal by special leave arises from
a suit filed by the appellant in a representative capacity
(Civil Suit No. 4 of 2008) against the State of Jammu &
Kashmir praying for a declaration that the Jammu & Kashmir
Big Landed Estate Abolition Act, XVII of 2007 (hereinafter
called the Act) is void, inoperative and ultra vires of
Yuvaraj Karan Singh who enacted it and for a further
declaration that the appellant was entitled to retain the
peaceful possession of his lands.
273
It appears that the validity of the Act was similarly
challenged by Maghar Singh by his suit filed on the Original
Side of the High Court of Jammu & Kashmir (Civil Suit No. 59
of 2007); and Mr. Justice Kilam who had heard the said suit
had rejected the plaintiff’s contentions and held that the
Act was valid.
When the appellant’ suit came for trial before the District
Court it was conceded on his behalf that the points raised
by him against the validity of the Act had been decided by
Mr. Justice Kilam and that, in view of the said decision,
the appellant could not usefully urge anything more before
the District Court. The learned District Judge who was
bound by the decision of Mr. Justice Kilam applied it to the
suit before him and held that the Act was valid and that the
appellant was not entitled to the two declarations claimed
by him. In the result the appellant’s suit was dismissed.
Against this decree the appellant preferred an appeal in the
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High Court of Jammu & Kashmir (Civil Appeal No. 4 of 2009).
Maghar Singh whose suit had been dismissed by Mr. Justice
Kilam had also preferred an appeal (No. 29 of 2008) before
the High Court. The two appeals were heard together by a
-Division Bench of the High Court which held that the Act
was valid and that the appellants were not entitled to any
declaration claimed by them. Both the appeals were
accordingly dismissed.
Against the decree passed by the High Court dismissing his
appeal the appellant applied to the High Court for leave to
appeal to this Court. The said application was, however,
dismissed. Thereupon the appellant applied for, and
obtained, special leave to appeal to this Court.
In dealing with this appeal it is necessary to narrate in
some detail the events which took place in Kashmir and the
constitutional changes which followed them in order to
appreciate fully the background of the impugned legislation.
A clear understanding of this background will help us to
deal with the appellant’s case in its proper perspective.
In 1925 Maharaja
35
274
Hari Singh succeeded Maharaja Pratap Singh as the Ruler of
Kashmir. It appears that for some time prior to 1934 there
was public agitation in Kashmir for the establishment of
responsible government. Presumably as a sequel to the said
agitation Maharaja Hari Singh issued Regulation 1 of 1991
(1934). The -Regulation began with the statement of policy
that it was the declared intention of the Maharaja to
provide for the association of his subjects in the matter of
legislation and the administration of’ the State and that it
was in pursuance of the said intention that the Regulation
was being promulgated. This Regulation consisted of 46
sections which dealt with the legislative, executive and
judicial powers of the Maharaja himself, referred to the
subjects which should be reserved from the operation of the
Regulation, made provision for the constitution of the
Legislature of the State, conferred authority on the Council
to make rules for specified purposes and referred to other
relevant and material topics. It is relevant to refer to
only two sections of this Regulation. Section 3 provides
that all powers legislative, executive and judicial in
relation to the State and its government are hereby declared
to be, and to have been always, inherent in and possessed
and retained by His Highness the Maharaja of Jammu & Kashmir
and nothing contained in the Regulation shall affect or be
deemed to have affected the right and prerogative of His
Highness to make and pass regulations, proclamations and
ordinances by virtue of his inherent power. Section 30 lays
down that Do measure shall be deemed to have been passed by
the Praja Sabha until and unless His Highness has signified
his assent thereto. The Regulation leaves it to the
absolute discretion of His Highness whether to assent to
such a measure or not.
Five years later the Maharaja promulgated the Jammu &
Kashmir Constitution Act 14 of 1996 (1939). From the
preamble to this Constitution it appears that, before its
promulgation, the Maharaja had issued a proclamation on
February 11, -1939, in which he had announced his decision
as to the further steps to
275
be taken to enable his subjects to make orderly progress in
the direction of attaining the ideal of active co-operation
between the executive and the Legislature of the State in
ministering to the maximum happiness of the people. In
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accordance with this desire the text of the Constitution
contained in Regulation 1 of 1991 was thoroughly overhauled
and an attempt was made to bring the amended text into line
with that of similar Constitutions of its type. This Con-
stitution is divided into six parts and includes 78
sections. Part 1 is introductory. Part 2 deals with the
executive; Part 3 with the Legislature; Part 4 with the
Judicature; Part 5 contains miscellaneous provisions; and
Part 6 provides for repeal and saving and includes
transitional provisions. It is significant that s. 5 of
this Act, like s. 3 of the earlier Regulation, recognises
and preserves all the inherent powers of His Highness, while
s. 4 provides that the State was to be governed by and in
the name of His Highness, and all rights, authority and
jurisdiction which appertain or are incidental to the
government of the State are exercisable by His Highness
except in so far as may be otherwise provided by or under
the Act or as may be otherwise directed by His Highness.
The other provisions of the Act are all subject to the over-
riding powers of His Highness specifically preserved by s.
5. As we will point out later on, in substance the
Constitutional powers of the Maharaja under the present Act
were exactly the same as those under the earlier Act.
While the State of Jammu & Kashmir was being governed by the
Maharaja and the second Constitution as amended from time to
time was in operation, political events were moving very
fast in India and they culminated in the passing of the
Indian Independence Act, 1947. Under s. 7 (1) (b) of this
Act the suzerainty of His Majesty over the Indian States
lapsed and with it lapsed all treaties and agreements in
force at the date of the passing of the Act between His
Majesty and the Rulers of the Indian States, all obligations
of His Majesty existing at that date towards Indian States
or the Rulers thereof, and all powers,
276
rights, authority or jurisdiction exercisable by His Majesty
at that date in or in relation to Indian States by treaty,
grant, usage, sufferance or otherwise. The proviso to the
said section, however, prescribed that, notwithstanding
anything in para. (b), effect shall, as nearly as may be,
continue to be given to the provisions of any such agreement
as therein referred to in relation to the subjects
enumerated in the proviso or other like matters until the
provisions in question are denounced by the Ruler of the
Indian State on the one hand or by the Dominion or Province
concerned on the other hand, or are superseded by subsequent
agreements. Thus, with the lapse of British paramountcy the
State of Jammu & Kashmir, like the other Indian States, was
theoretically free from the limitations imposed by the said
paramountcy subject to the provisions of the proviso just
mentioned.
On October 22, 1947, the tribal raiders invaded the
territory of the State; and this invasion presented a
problem of unprecedented gravity before the Maharaja. With
the progress of the invading raiders the safety of the State
was itself in grave jeopardy and it appeared that, if the
march of the invaders was not successfully resisted, they
would soon knock at the doors of Srinagar itself. This act
of aggression set in motion a chain of political events
which ultimately changed the history and political
constitution of Kashmir with unexpected speed.
On October 25, 1947, the Maharaja signed an Instrument of
Accession with India which had then become an Independent
Dominion. By the First Clause of the Instrument the
Maharaja declared that he had acceded to the Dominion of
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India with the intent that the Governor-General of India,
the Dominion, Legislature, the Federal Court and any other
Dominion Authority established for the purpose of the
Dominion shall, by virtue of the Instrument of Accession,
subject always to the terms thereof and for the purposes
only of the Dominion, exercise in relation to the State of
Jammu & Kashmir such functions as may be vested in them by
or under the Government of India Act, 1935, as in force in
the Dominion of India on August 15, 1947.
277
We may usefully refer to some other relevant clauses of this
Instrument. By el. 3 the Maharaja agreed that the matters
specified in the Schedule attached to the Instrument of
Accession were the matters with respect to which the
Dominion Legislature may make laws for this State. Clause 5
provides that the Instrument shall not be varied by any
amendment of the Government of India Act, 1935, or of the
Indian Independence Act, 1947, unless such amendment is
accepted by the Maharaja by an Instrument supplementary to
the original Instrument of Accession. By el. 7 it was
agreed that the Maharaja would not be deemed to be committed
to the acceptance of any future Constitution of India nor
would his discretion be fettered to enter into agreements
with the Government of India under any such future
Constitution. Clause 8 is very important. It says that
nothing in the Instrument affects the continuance of the
Maharaja’s sovereignty in and over his State, or, save as
provided by or under the Instrument, the exercise of any
powers, authority and rights then enjoyed by him as Ruler of
the State, or the validity of any law then in force in the
State. The Schedule attached to the Instrument refers to
four topics, defence, external affairs, communications and
ancillary, and under these topics twenty matters have been
serially enumerated as those in respect of which the
Dominion Legislature had the power to make laws for the
State. Thus, by the Instrument of Accession, the Maharaja
took the very important step of recognising the fact that
his State was a part of the Dominion of India.
Meanwhile,, the invasion of the State had created tremendous
popular fervour and patriotic feelings in resisting the act
of aggression and this popular feeling inevitably tended to
exercise pressure on the Maharaja for introducing
responsible and popular government in the State. The
Maharaja tried to pacify the popular demand by issuing a
proclamation on March 5, 1948. By this proclamation he
stated that in accordance with the traditions of his dynasty
he had from time to time provided for increasing association
of his people with the administration of the State with the
object of
278
realising the goal of full responsible government at as
early a date as possible, and he added that he had noted
with gratification and pride the progress made so far and
the legitimate desire of his people for the immediate
establishment of a fully democratic constitution based on
adult franchise with a hereditary Ruler from his dynasty as
the constitutional head of an executive responsible to the
Legislature. It appears that before this proclamation was
issued the Maharaja had already appointed Sheikh Mohammed
Abdullah who was then the popular leader of the people as
the head of the emergency administration. By the pro-
clamation the Maharaja replaced the emergency administration
by a popular interim government and provided for its powers,
duties and functions pending the formation of a fully
democratic constitution. Clause 1 of the proclamation
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provides for the composition of the Ministry, whereas by cl.
2 the Prime Minister and other ministers are required to
function as a cabinet and act on the principle of joint
responsibility. A Dewan appointed by the Maharaja is to-be
a member of the Cabinet. Clause 4 provides that the Council
of Ministers shall take appropriate steps, as soon as resto-
ration of normal conditions has been completed, to convene a
National Assembly based on adult franchise having due regard
to the principle that the number of representatives from
each voting area should, as far as practicable, be
proportionate to the population of that area. Clause 5 then
lays down that the Constitution to be framed by the National
Assembly shall provide adequate safeguards for the
minorities and contain appropriate provisions guaranteeing
freedom of conscience, freedom of speech and freedom of
assembly. Clause 6 states that when the work of framing the
Constitution is completed by the National Assembly the
Constitution would be submitted through the Council of
Ministers to the Maharaja for his acceptance. The
proclamation ended with the expression of hope that the
formation of a popular interim government and the
inauguration in the near future of a fully democratic
Constitution would ensure the contentment, happiness and the
moral and material advancement
270
of the people of the State. Through under this proclamation
a popular interim government was set up, the constitutional
position still was that the popular government had
theoretically to function under the Constitution of 1939.
It appears that before the popular government was thus
installed in office the Maharaja had deputed four
representatives of the State to represent the State in the
Constituent Assembly called in the Dominion of India to
frame the Constitution of India.
After the popular interim government began to function the
political events in the State gathered momentum and the
public began to clamour for the framing of a democratic
Constitution at an early date. When the atmosphere in the
State was thus surcharged, the Maharaja issued his final
proclamation on June 20, 1949, by which he entrusted to
Yuvaraj Karan Singh Bahadur all his powers and functions in
regard to the government of the State because he had decided
for reasons of health to leave the State for a temporary
period. " Now therefore I hereby direct and declare ", says
the proclamation, " all powers and functions whether
legislative, executive or judicial which are exercisable by
me in relation to the State and its government including in
particular my right and prerogative of making laws, of
issuing proclamations, orders and ordinances, or remitting,
commuting or reducing sentences and of pardoning offenders,
shall, during the period of my absence from the State, be
exercisable by Yuvaraj Karan Singh Bahadur ". As subsequent
events show this was the last official act of the Maharaja
before he left the State.
After Yuvaraj Karan Singh took the Maharaja’s place and
began to function under the powers assigned to him by the
said proclamation, the interim popular government installed
earlier was functioning as before. On November 25, 1949,
Yuvaraj Karan Singh issued a proclamation by which he
declared and directed that the Constitution of India shortly
to be adopted by the Constituent Assembly of India shall, in
so far as it is applicable to the State of Jammu & Kashmir,
govern the constitutional relationship between
280
the State and the contemplated Union of India and shall be
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enforced in the State by him, his heirs and successors in
accordance with the tenor of its provisions. He also
declared that the provisions of the said Constitution
shall, as from the date of its commencement, supersede and
abrogate all other constitutional provisions inconsistent
therewith which were then in force in the State. The
preamble to this proclamation shows that it was based on the
conviction that the best interests of the State required
that the constitutional relationship established between the
State and the Dominion of India should be continued as be-
tween the State and the contemplated Union of India; and it
refers to the fact that the Constituent Assembly of India
which had framed the Constitution of India included the duly
appointed representatives of the State and that the said
Constitution provided a suitable basis to continue the
constitutional relationship between the State and the
contemplated Union of India. On January 26, 1950, the
Constitution of India came into force.
This proclamation was followed by the Constitution
(Application to Jammu & Kashmir) Order, 1950 (C. O. 10)
which was issued on January 26, 1950, by the President in
consultation with the Government of Jammu & Kashmir and in
exercise of the powers conferred by cl. (1) of Art. 370 of
the Constitution. It came into force at once. Clause (2)
of this order provides that for the purposes of sub-cl. (i)
of Art. 370 of the Constitution, the matters specified in
the First Schedule to the Order correspond to matters
specified in the Instrument of Accession governing the
accession of the State of Jammu & Kashmir to the Dominion of
India as the matters with regard to which the Dominion
Legislature may make laws for that State; and accordingly
the power of Parliament to make laws for that State shall be
limited to the matters specified in the said First Schedule.
Clause (3) provides that, in addition to the provisions of
Art. 1 and Art. 370 of the Constitution the only other
provisions of the Constitution which shall apply to the
State of Jammu & Kashmir shall be those specified in the
281
Second Schedule to the Order and shall so apply subject to
the exceptions and modifications specified in the said
Schedule. The First Schedule to the Order specified 96
items occurring in the Union List; while the Second Schedule
set out the Articles of the Constitution made applicable to
the State together with the exceptions and modifications.
Later on we will have occasion to refer to some of these
Articles on which the appellant has relied.
It appears that, after the interim popular Government took
office, the Revenue Minister made a statement of policy at a
meeting of the special staff of revenue officers held in the
Governor’s office on August 13, 1950. The Minister stated
that whatever the difficulties, the Cabinet was determined
to go ahead and transfer the proprietorship of the land to
the tiller. The main idea underlying the proposed
agricultural reform was that a land-lord shall not possess
more than 20 acres of agricultural land. In addition, he
would be allowed 8 kanals for his use and Sagzar and 4
kanals for his second house if in existence, and 10 kanals
for Bedzar or Safedzar. It was contemplated that a
committee would be appointed to settle the details and other
matters incidental to the said agricultural plan.
It was presumably in pursuance of this plan adopted by the
interim Cabinet that the Act was promulgated by Yuvaraj
Karan Singh on October 17, 1950. The preamble to the Act
shows that it was promulgated because no lasting improvement
in agricultural production and efficiency was possible
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without the removal of the intermediaries between the tiller
of the soil and the State, and so for the purpose of
improving agricultural production, it was expedient to
provide for the abolition of such proprietors as own big
landed estates and to transfer the land held by them to the
actual tiller. The Yuvaraj enacted the law in exercise of
the -powers vested in him under s. of the. Constitution Act
of 1996 and the’proclamation issued by Maharaja Hari Singh
on June 20, 1949. The Act consists of 47 sections and
purports to, carry out its
36
282
policy of improving the agricultural production of the State
by providing for the extinction of the proprietors’ titles
and the transfer of the lands to the tillers, and by setting
up a self-contained machinery for the carry ing out of the
scheme of the Act and for settlement of all incidental
disputes arising thereunder.
For the purpose of this appeal, however, it is necessary to
refer to a few relevant sections which deal with the broad
features of the extinction of the proprietors’ rights and
the transfer of lands to the tillers. S. 2 of the Act inter
alia defines land, proprietor and tiller, while s. 3
excludes certain specified lands from the operation of the
Act. Section 4, sub-s. (1) provides for the extinction of
the right of ownership in certain lands and it lays down
that not withstanding anything contained in any law for the
time being in force, the right of ownership held by a
proprietor in land other than the land mentioned in sub-s.
(2) shall, subject to the other provisions of the Act,
extinguish and cease to vest in him from the date the Act
comes into force. Sub-section (2) of s. 4 enumerates lands
which are excluded from the operation of sub-s. (1). They
are (a) units of land not exceeding 182 kanals including
residential sites, Bedzars and Safedzars, (b) Kahikrishmi
areas, Araks, Kaps and unculturable wastes including those
used for raising fuel or fodder, and (c) orchards. The
proviso to sub-s. (2) gives government the power to dispose
of lands mentioned in cl. (b) in such a manner as may be
recommended by the committee to be set up for that purpose.
Section 26 of the Act deals with the question of payment to
the proprietors. It provides that there shall, until the
Constituent Assembly of the State settles the question of
compensation, with respect to the land expropriated under
this Act, be paid by the government to every proprietor who
has been expropriated, an annuity in the manner indicated in
the section. In other words, subject to the final decision
of the Constituent Assembly, s. 26 contemplates the payment
of annuity to the expropriated proprietors according to the
scale prescribed in the section. With the rest of the
sections we are not concerned in the present appeal.
283
After the Act was enacted by the yuvaraj he issued a
proclamation on April 20, 1951, directing that a Constituent
Assembly consisting of representatives of the people elected
on the basis of adult franchise shall be constituted
forthwith for the purpose of framing a Constitution for the
State of Jammu & Kashmir. The proclamation sets out the
manner in which members of the said Constituent Assembly
would be elected and makes provisions for the holding of the
said elections. It also authorised the Constituent Assembly
to frame its own agenda and make rules for regulating its
procedure and the conduct of its business. The preamble to
this proclamation shows that the Yuvaraj was satisfied that
it was the general desire of the people that a Constituent
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Assembly should be brought into being for the purpose of
framing a Constitution for the State and that it was
commonly felt that the convening of the said Assembly could
no longer be delayed without detriment to the future well-
being of the State. The Yuvaraj also felt no doubt that the
proclamation issued by the Maharaja on March 5, 1948, in
regard to the convening of the national assembly as per cls.
4 to 6 no longer met the requirements of the situation in
the State. Thus this proclamation was intended to meet
expeditiously the popular demand for the framing of a
democratic constitution ; and it indicates that a decisive
stage bad been reached in the political history of the
State.
In accordance with this proclamation a Constituent Assembly
was elected and it framed the Constitution for the State.
By the Constitution thus framed the hereditary rule of the
State was abolished, and a provision was made for the
election of a Sadar-i-Riyasat to be at the head of the
State. On November 13, 1952, the Yuvaraj was elected to the
office of the Sadar-i-Riyasat and with his election the
dynastic rule of Maharaja Hari Singh came to an end.
On November 15, 1952, the Constitution (Application to Jammu
& Kashmir) Second Amendment Order, 1952 (C. O. 43) was
issued; and it came into force on November 17, 1952. By
this Order the earlier Order of 1950 was amended as a result
of which all references
284
in the said Order to the Rajpramukh shall be construed as
references to the Sadar-i-Riyasat of Jammu & Kashmir.
Similarly in the Second Schedule to the said Order some
amendments were made. On the ,same day a Declaration (C. O.
44) was made by the President under Art. 370, sub-art. (3)
of the Constitution that from November 17, 1952, the said
Art. 370 shall be operative with the modification that for
the explanation in el. (1) thereof the new explanation shall
be substituted. The effect of this new explanation was that
the government of the State meant the person for the time
being recognised by the President, on the recommendation of
the Legislative Assembly of the State, as the Sadar-i-
Riyasat of Jammu & Kashmir acting on the advice of the
Council of Ministers of the State for the time being in
force. On November 18, 1952, Yuvaraj Karan Singh was
recognised as the Sadar-i-Riyasat of Jammu & Kashmir.
On May 14, 1954, another Constitution (Application to Jammu
& Kashmir) Order (C. O. 48) was made by the President which
inter alia applied Art. 31A and 31B to the State with
certain modifications and included the Act in the Ninth
Schedule of the Constitution. The last two Orders were
issued subsequent to the enactment of the Act and so they
would have no bearing on the decision of the points raised
before us. We have briefly referred to them for the sake of
completing the narrative of the material events.
The validity of the Act is impeached mainly on the ground
that Yuvaraj Karan Singh had no authority to promulgate the
said Act. It is this argument which has been urged before
us by Mr. Chatterjee in different and alternative forms that
needs careful examination. The first attack against the
competence of Yuvaraj Karan Singh proceeds on the assumption
that at the time when Maharaja Hari Singh conveyed his
powers to Yuvaraj Karan Singh by his proclamation of June
20, 1949, he was himself no more than a constitutional
monarch and as such he could convey to Yuvaraj Karan Singh
no higher powers. Let us first deal with this argument.
Prior to the passing of the Independence Act, 1947, the
sovereignty of Maharaja
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285
Hari Singh over the State of Jammu & Kashmir was subject to
such limitations as were constitutionally imposed on it by
the paramountcy of the British Crown and by the treaties and
agreements entered into between the Rulers of the State and
the British Government. It cannot be disputed that so far
as the internal administration and governance of the State
were concerned Maharaja Hari Singh, like his predecessors,
was an absolute monarch ; and that all powers legislative,
executive and judicial in relation to his State and its
governance inherently vested in him. This position has been
emphatically brought out by s. 3 of Regulation 1 of 1991
(1934). Though by this Regulation Maharaja Hari Singh gave
effect to his intention to provide for the association of
his subjects in the matter of legislation and administration
of the State, by s. 3 he fully preserved in himself all of
his pre-existing legislative, executive and judicial powers.
Section 3 not only preserves the said powers but expressly
provides that nothing contained in the Regulation shall
affect or be deemed to have affected the right and
prerogative of His Highness to make and pass regulations,
proclamations and ordinances by virtue of his inherent
authority. It is thus clear that the rest of the provisions
of the Regulation were subject to the overriding powers
preserved by His Highness.
It is, however, urged that this constitutional position was
substantially altered by the subsequent Constitution Act of
1996 (14 of 1996). We are unable to accept this argument.
Sections 4 and 5 of this Act in terms continue to preserve
all the powers legislative, executive and judicial as well
as the right and prerogative of His Highness just as much as
s. 3 of Regulation 1 of 1991. It is significant that the
provisions of Pt. II which deals with the executive, like
those of Pt. III which deals with the Legislature, begin
with the express provision that they are subject to the
provisions of ss. 4 and 5. In other words, the powers
conferred on the executive and the Legislature, limited and
qualified as they are, are made expressly subject to the
overriding powers of His Highness,
286
Besides, there are specific provisions in the Act which
clearly emphasise the preservation of the said powers.
Section 24 which enumerates the reserved matters over which
the Praja Sabha had no authority to legis late provides by
cl. (i) that the provisions of the Act and the rules made
thereunder and their repeal or modifications constitute
reserved matters. Besides cl.(j) confers on His Highness
the authority to add other specified matters to the list of
reserved matters from time to time. These provisions make
it clear that his Highness could enlarge the list of
reserved matters thereby limiting the jurisdiction of the
Praja Sabha. Similarly the legislative procedure prescribed
by s. 31, sub-ss. (2) and (3) clearly shows that it is only
such bills as received the assent of His Highness that be-
came law, His Highness’s power to assent or not to assent to
the bills submitted to him being absolutely unfettered. The
ordinances issued by His Highness under s. 38 cannot be
repealed or altered by the Praja Sabha by virtue of s. 39 ;
and lastly s. 72 expressly preserves the inherent power and
prerogative of His Highness. Thus there can be no doubt
that though this Act marked the second step taken by His
Highness in actively associating his subjects with the ad-
ministration of the State, it did not constitute even a
partial surrender by His Highness of his sovereign rights in
favour of the Praja Sabha. So far as the said powers are
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concerned, the constitutional position under this Act is
substantially the same as under the earlier Act.
It is contended by Mr. Chatterjee that the prerogative
rights which are preserved by ss. 5 and 72 of this Act
represent only such rights as had not been entrusted to the
Praja Sabha and in support of this contention he referred us
to the observation made by Dicey that " the discretionary
authority of the Crown originates generally not in Act of
Parliament, but in the prerogatives term which has caused
more perplexity to students than any other expression
referring to the constitution. The prerogative appears to
be both historically and as a matter of actual fact nothing
else than the residue of discretionary or arbitrary
287
authority, which it any given time is legally left in the
hands of the Crown"(1). This observation has been cited
with approval by the House of Lords in the case of Attorney-
General v. De Keyser’s Royal Hotel Ltd. (2). We do not see
how this statement can assist us in determining the
constitutional status, and the extent of the powers, of
Maharaja Hari Singh in relation to the governance of the
State. The said discussion in Dicey’s treatise has
reference to the special features of the history of English
constitutional development; and it would naturally be of no
relevance in dealing with the effect of the Constitution of
1996 with which we are concerned. As we have just indicated
this Constitution emphatically brings out the fact that the
Maharaja was an absolute monarch and in him vested all the
legislative, executive and judicial powers along with the
prerogative rights mentioned in ss. 5 and 72.
Whilst this was the true constitutional position the
Independence Act, 1947, was passed by the British
Parliament; and with the lapse of the British paramountcy
the Rulers of Indian States were released from the
limitations imposed on their sovereignty by the said
paramountcy of the British Crown and by the treaties in
force between the British Government and the States; this
was, however, subject to the proviso prescribed by s. 7 of
the Independence Act under which effect had to be given to
the provisions of the agreements specified in the proviso,
until they were denounced by the Rulers of the States or
were superseded by subsequent agreements. In the result,
subject to the agreements saved by the proviso, Maharaja
Hari Singh continued to be an absolute monarch of the State,
and in the eyes of international law he might conceivably
have claimed the status of a sovereign and independent
State. But it is urged that the sovereignty of the Maharaj
was considerably affected by the provisions of the
Instrument of Accession which he signed on October 25, 1947.
This argument is clearly untenable. It is true that by cl.
I of the
(1) Dicey on " Law of the Constitution ", 9th Ed., P. 424.
(2) [1920] A.C. 508, 526.
288
Instrument of Accession His Highness conceded to the
authorities mentioned in the said clause the right to
exercise in relation to his State such functions as may be
vested in them by or under the Government of India Act,
1935, as in force in the said Dominion on August 15, 1947,
but this was subject to the other terms of the Instrument
of Accession itself; and el. 6 of the Instrument clearly and
expressly recognised the continuance of the sovereignty of
His Highness in and over his State. We must, therefore,
reject the argument that the execution of the Instrument of
Accession affected in any manner the legislative, executive
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and judicial powers in regard to the government of the State
which then vested in the Ruler of the State.
There is one more argument which has been urged before us on
the question of Maharaja Hari Singh’s powers. It is said
that when Maharaja Hari Singh issued his proclamation on
March 5, 1948, replacing the emergency administration by a
popular interim government headed by Sheikh Mohammad
Abdullah and constituting a Council of Ministers who were to
function as a Cabinet and act on the principle of joint
responsibility, he virtually introduced a popular democratic
government in the State, surrendered his sovereign rights,
and became a constitutional monarch. There is no substance
in this argument. The proclamation merely shows that, under
pressure of public opinion and as a result of the difficult
and delicate problem raised by the tribal raid, the Maharaja
very wisely chose to entrust the actual administration of
the government to the charge of a popular Cabinet; but the
description of the Cabinet as a popular interim government
did not make the said Cabinet a popular Cabinet in the true
constitutional sense of the expression. The Cabinet had
still to function under ,the Constitution Act 14 of 1996
(1939) and whatever policies it pursued, it had to act under
the overriding powers of His Highness. It is thus clear
that until the Maharaja issued his proclamation on June 20,
1949, all his powers legislative, executive and judicial as
well as his right and prerogative vested in him as before.
That is why the argument that Maharaja,
289
Hari Singh had surrendered his sovereign powers in favour of
the Praja Sabha and the popular interim government, thereby
accepting the status of a constitutional monarch cannot be
upheld.
The next point which calls for our decision is . What was
the effect of the proclamation issued by Maharaja Hari Singh
in favour of Yuvaraj Karan Singh on June 20, 1949 ? The
terms of this proclamation have already been set out by us.
There is no doubt that, during the temporary period that the
Maharaja wanted to leave the State for reasons of health, he
conferred on Yuvaraj Karan Singh all his powers and
functions in regard to the government of the State. Since
the Maharaja was himself an absolute monarch, there was no
fetter or limitation on his power to appoint somebody else
to exercise all or any of his powers. There was no
authority or tribunal in the State which could question his
right or power to adopt such a course. As Chief Justice
Kania has observed in Re: Delhi Laws Act, 1912 (1) " A
legislative body which is sovereign like an autocratic Ruler
has power to do anything. It may, like a Ruler, by an
individual decision, direct that a certain person may be put
to death or a certain property may be taken over by the
State. A body of such character may have power to nominate
someone who can exercise all its powers and make all its
decisions. This is possible to be done because there is no
authority or tribunal which can question the right or power
of the authority to do so ". Similarly, Mahajan, J., has
observed in the same case that " The Parliament being a
legal omnipotent despot, apart -from being a legislature
simpliciter, it can in exercise of its sovereign power
delegate its legislative functions or even create new bodies
conferring on them power to make laws "; and the learned
Judge added that " whether it exercises its power of
delegation of legislative power in its capacity as a mere
legislature or in its capacity as an omnipotent despot, it
is not possible to test it on the touchstone of judicial
precedent or judicial scrutiny as courts of justice in
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England cannot inquire into it ". In his judgment Mukherjea
J., has also made similar
(1)[1951] S.C.R. 747. 765. 766, 889, 969.
37
290
observations after quoting the words of Sir Edward Coke
in regard to the " transcendent and absolute power and
jurisdiction of Parliament ". What is true of the British
Parliament would be truer about an absolute and despotic
monarch, the exercise of whose J. paramount power as a
sovereign is not subject to any popular and legislative
control. If that be the true position, the proclamation
issued by Maharaja Hari Singh authorising Yuvaraj Karan
Singh to exercise all his -powers would clothe him with all
such powers and he would be in the same position as his
father so long as the proclamation stood.
Besides, it would be permissible to observe that though the
proclamation purports to have been issued on the ground that
Maharaja Hari Singh was leaving the State for a temporary
period for reasons of health, it was clear even then that
the temporary departure of the Maharaja really meant his
permanent retirement from the State. It was realised by him
as much as by his subjects that to face the stress and
strain caused by the unusual problems raised by the act of
aggression against the State, it was necessary that he
should quit and young Yuvaraj Karan Singh should take his
place. Thus considered the proclamation really amounted to
his abdication and installation by him of Yuvaraj Karan
Singh as the Ruler of the State. It is, however, not
necessary to consider any further this aspect of the matter
in dealing with the authority of Yuvaraj Karan Singh,
because, as we have just held, Maharaja Hari Singh was
competent to delegate his powers to Yuvaraj Karan Singh for
a temporary period as his proclamation purported to do; and
by virtue of such delegation, Yuvaraj Karan Singh was
clothed with all the authority which his father possessed as
the- Ruler of the State until the proclamation was revoked.
Therefore the argument that Maharaja Hari Singh’s
proclamation issued on June 20, 1949, did not confer on
Yuvaraj Karan Singh the specified powers cannot be accepted.
The next contention is that the powers of Yuvaraj Karan
Singh were substantially limited by the proclamation issued
by him on November 25, 1949. We are not impressed even by
this argument. By this
291
proclamation Yuvaraj Karan Singh purported to make
applicable to his State the Constitution of India which was
shortly going to be adopted by the Constituent Assembly of
India in so far as was applicable; in other words, this
proclamation did not carry the constitutional position any
further than where it stood after and as a result of the
execution of the Instrument of Accession by Maharaja Hari
Singh. It is thus clear that the proclamation did not
affect Yuvaraj Karan Singh’s authority and powers as the
Ruler of the State which had been conferred on him by the
proclamation of his father issued in that behalf.
Mr. Chatterjee, however, has very seriously pressed before
us his contention that, as a result of the application of
certain specified articles of the Constitution to the State
of Jammu & Kashmir, all vestiges of sovereignty which
Yuvaraj Karan Singh could have claimed had vanished; and in
consequence he had become merely a constitutional monarch of
the State without any legislative authority or powers.
Indeed it is this part of the case on which Mr. Chatterjee
placed considerable emphasis. In this connection, it would
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be relevant to recall that by the Constitution Order 10, in
addition to the provisions of Art. 1 and Art. 370, certain
other provisions of the Constitution were made applicable to
the State with exceptions and modifications as specified in
the Second Schedule. Articles 245, 254 and 255 as well as
Art. 246 as modified from Pt. XI of the Constitution were
applied to the State. Similarly from Pt. XIX Art. 366 was
applied, and from Pt. XXI Arts. 370 and 385 were applied.
In this connection it is also necessary to bear in mind that
Pt. VI which deals with the States in Pt. A of the First
Schedule has not been applied, nor has Pt. VII which
consisted of Art. 238 been applied. Art. 238 provides for
the application of provisions of Pt. VI to States in Pt. B
of the First Schedule. Schedule Seven which consists of the
three Legislative Lists has also not been applied. It is
thus clear that though by the application of Art. I the
State became a part of the territory of India and con-
stituted a State under Part B, the provisions of
292
Pt. VI and Pt. VII did not apply to it nor did the Schedule
prescribing the three Legislative Lists. This fact is of
considerable importance and significance in dealing with the
appellant’s contention.
Since Mr. Chatterjee has strongly relied on the application
of Art. 370 of the Constitution to the State in support of
his argument that the Yuvaraj bad ceased to hold the plenary
legislative powers, it is necessary to examine the
provisions of this Article and their effect. This Article
was intended to make temporary provisions with respect to
the State of Jammu & Kashmir. It reads thus:
" Art. 370: (1) Notwithstanding anything in this
Constitution,-
(a)the provisions of article 238 shall not apply in
relation to the State of Jammu & Kashmir;
(b)the power of Parliament to make laws for the said State
shall be limited to-
(i)those matters in the Union List and the Con-current
List which, in consultation with the Government of the
State, are declared by the President to correspond to
matters specified in the Instrument of Accession governing
the accession of the State to the Dominion of India as the
matters with respect to which the Dominion Legislature may
make laws for that State; and
(ii)such other matters in the said Lists as, with the
concurrence of the Government of the State, the President
may by order specify.
Explanation.-For the purposes of this article, the
Government of the State means the person for the time being
recognised by the President as the Maharaja of Jammu and
Kashmir acting on the advice of the Council of Ministers for
the time being in office under the Maharaja’s Proclamation
dated the fifth day of March, 1948;
(c)the provisions of article I and of this article shall
apply in relation to that State;
(d)such of the other provisions of this Constitution shall
apply in relation to that State subject to such exceptions
and modifications as the President may by order specify;
293
Provided that no such order which relates to the matters
specified in the Instrument of Accession of the State
referred to in paragraph (i) of sub-clause (b) shall be
issued except in consultation with the Government of the
State:
Provided further that no such order which relates to matters
other than those referred to in the last preceding proviso
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shall be issued except with the concurrence of that
Government.
(2) If the concurrence of the Government of the State
referred to in paragraph (ii) of sub-clause (b) of clause
(1) or in the Second proviso to sub-clause (d) of that
clause be given before the Constituent Assembly for the
purpose of framing the Constitution of the State is
convened, it shall be placed before such Assembly for such
decision as it may take thereon.
(3)Notwithstanding anything in the foregoing provisions of
this article, the President may, by public notification,
declare that this article shall cease to be operative or
shall be operative only with such exceptions and
modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly
of the State referred to in clause (2) shall be necessary
before the President issues such a notification."
Clause (1) (b) of this Article deals with the legislative
power of the Parliament to make laws for the State; and it
prescribes limitation in that behalf. Under paragraph (1)
of sub-cl. (b) of cl. (1) Parliament has power to make laws
for the State in respect of matters in the Union List and
the Concurrent List which the President in consultation with
the Government of the State declares to correspond to
matters specified in the Instrument of Accession; whereas in
regard to other matters in the said Lists Parliament may,
under paragraph (ii), have power to legislate for the State
after such other matters have been specified by his order by
the President with the concurrence of the Government of the
State. It is significant that paragraph (i) refers to
consultation with the Government of the State while
paragraph (ii) requires its concurrence,
294
Having thus provided for consultation with, and the
concurrence of, the Government of the State, the explanation
shows what the Government of the State means in this
context. It means according to the ,appellant, not the
Maharaja acting by himself in his own discretion, but the
person who is recognised as the Maharaja by the -President
acting on the advice of the Council of Ministers for the
time being in office. It is on this explanation that the
appellant has placed considerable reliance.
Sub-clauses (c) and (d) of cl. (1) of the Article provide
respectively that the provisions of Art. I and of the
present Article shall apply in relation to the State; and
that the other provisions of the Constitution shall apply in
relation to it subject to exceptions and modifications
specified by the Presidential order. These provisions are
likewise made subject to consultation with, or concurrence
of, the Government of the State respectively.
Having provided for the legislative power of the Parliament
and for the application of the Articles of the Constitution
to the State, Art . 370, el. (2) prescribes that if the
concurrence of the Government of the State required by the
relevant sub-cls. of cl. (1) has been given before the
Constituent Assembly of Kashmir has been convened, such
concurrence shall be placed before such Assembly for such
decision as it may take thereon. This clause shows that the
Constitution makers attached great importance to the final
decision of the Constituent Assembly, and the continuance of
the exercise of powers conferred on the Parliament and the
President by the relevant temporary provisions of Art.
370(1) is made conditional on the final approval by the said
Constituent Assembly in the said matters.
Cl. (3) authorises the President to declare by public
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notification that this article shall cease to be operative
or shall be operative only with specified exceptions or
modifications; but this power can be exercised by the
President only if the Constituent Assembly of the State
makes recommendation in that behalf. Thus the proviso to
el. (3) also emphasises the importance
295
which was attached to the final decision of the Constituent
Assembly of Kashmir in regard to the relevant matters
covered by Art. 370.
The appellant contends that the scheme of this Article
clearly shows that the person who would be recognised by the
President as the Maharaja of Jammu & Kashmir was treated as
no more than a constitutional Ruler of the State. In regard
to matters covered by this Article he could not function or
decide by himself and in his own discretion. The con-
sultation contemplated by this Article had to be with the
Maharaja acting on the advice of the Council of Ministers
and the concurrence prescribed by it had to be similarly
obtained and given, and that brings out the limitations on
the powers of the Maharaja. It is also urged that the final
decision in these matters has been deliberately left to the
Constituent Assembly which was going to be convened for the
framing of the Constitution of the State, and that again
emphasises the limitations imposed on the powers of the
Maharaja.
This argument assumes that under the explanation to Art.
370(1) it is the person recognised by the President as the
Maharaja who has to act on the advice of’ the Council of
Ministers in relation to matters covered by Art. 370. But,
it is possible to take the view that the said clause really
indicates that in recognising any person as the Maharaja of
the State the President has to act on the advice of the
Council of Ministers for the time being in office under the
Maharaja’s proclamation dated March 5, 1948. If that be the
true construction of the explanation, then the argument
that, before the Maharaja is consulted or his concurrence is
obtained, he must act on the advice of his Ministers would
not be valid. We would, however, like to deal with the
argument even on the assumption that the construction put by
the appellant on the explanation is right.
On the said construction the question which falls to be
determined is: Do the provisions of Art. 370(1) affect the
plenary powers of the Maharaja in the matter of the
governance of the State ? The effect of the application of
the present Article has to be judged in
296
the light of its object and its terms considered in the
context of the special features of the constitutional re-
lationship between the State and India. The Constitution-
makers were obviously anxious that the said relationship
should be finally determined by the Constituent Assembly of
the State itself; that is the main basis for, and purport
of, the temporary provisions made by the present Article ;
and so the effect of its provisions must be confined to its
subject-matter. It would not be permissible or legitimate
to hold that, by implication, this Article sought to impose
limitations on the plenary legislative powers of the
Maharaja. These powers had been recognised and specifically
provided by the Constitution Act of the State itself; and it
was not, and could not have been, within the contemplation,
or competence of the Constitution-makers to impinge even
indirectly on the said powers. It would be recalled that by
the Instrument of Accession these powers have been expressly
recognised and preserved and neither the subsequent
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proclamation issued by Yuvaraj Karan Singh adopting, as far
as it was applicable, the proposed Constitution of India,
nor the Constitution Order subsequently issued by the
President, purported to impose any limitations on the said
legislative powers of the Ruler. What form of government
the State should adopt was a matter which had to be, and
naturally was left to be, decided by the Constituent
Assembly of the State. Until the Constituent Assembly
reached its decision in that behalf, the constitutional
relationship between the State and India continued to be
governed basically by the Instrument of Accession. It would
therefore be unreasonable to assume that the application of
Art. 370 could have affected, or was intended to affect, the
plenary powers of the Maharaja in the matter of the
governance of the State. In our opinion, the appellant’s
contention based on this Article must therefore be rejected.
The application of Arts. 245, 254 and 255, and of Art. 246
as modified,, does not seem to have any bearing on the
question of the authority and powers of the Ruler of the
State. Their application merely serves to provide for the
legislative powers of the Parliament
297
to make laws in respect of matters covered by Art. 370.
Incidentally we may point out that the application of Arts.
246 and 254 as provided by the Constitution Order 10 of 1950
has been subsequently modified by the Constitution Order 48
of 1954. Similarly Art. 255 which was originally applied by
the first Order has been deleted by the latter Order. This
shows that it was subsequently realised that the original
application of the said Articles prescribed by the earlier
Order was more anticipatory and notional and required either
suitable modification or cancellation.
The appellant has then relied upon the provisions of Art.
385. It provides:
" Art. 385.-Until the House or Houses of the Legislature of
a State specified in Part B of the First Schedule has or
have been duly constituted and summoned to meet for the
first session under the provisions of this Constitution, the
body or authority functioning immediately before the
commencement of this Constitution as the Legislature of the
corresponding Indian State shall exercise the powers and
perform the duties conferred by provisions of this
Constitution on the House or Houses of the Legislature of
the State so specified."
It is difficult to see how this Article supports the
appellants contention. In fact it is not easy to appreciate
what the application of this Article to the State really
meant. As we have already pointed out the application of
the specified Articles to the State was not intended to
affect, and constitutionally could not have affected, the
form of the government prevailing in the State and the
plenary legislative powers of the Maharaja in regard to the
government of the State. As in regard to the application of
Arts. 245, 254 and 255, so in regard to this Article as
well, it was subsequently realised that the application of
the Article was purely notional and could serve no purpose.
That is why by C. O. 48 of 1954 this Article has been
deleted from the list of Articles applied to the State. It
seems to us that the initial formal application of this
Article cannot justify the appellant’s case that the plenary
legislative powers vesting in the Ruler of the State
38
298
were not only affected but, as the appellant contends,
completely extinguished. The constitutional position in
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regard to the government of the State continued to be the
same despite the application of this Article. In dealing
with the application of this Article and Arts. 245, 254 and
255, it would be permissible to rely on the rule of
construction set out in Maxwell that " a thing which is
within the letter of a statute is generally to be considered
as not within the statute unless it is also the real
intention of the Legislature It is evident that the
Constitution-makers have treated the problem of Kashmir on a
special basis and that though the association of Kashmir
with India which began with the Instrument of Accession has
been steadily and gradually growing closer and closer on a
democratic basis, it still presents features not common to
any other State included in the Union of India. We have no
doubt that at the time when the Act was passed the plenary
legislative powers of the Yuvaraj had not been affected in
any manner. The result is that Yuvaraj Karan Singh was
competent to enact the Act in 1950 and so the challenge to
the validity of the Act on the ground that he did not
possess legislative competence in that behalf cannot
succeed.
It is clear that the validity of the Act cannot be chal-
lenged on the ground that the Act did not provide for the
payment of compensation. For one thing s. 26 of the Act did
contemplate the payment of compensation. Besides, as the
law of the State then stood, there was no limitation on the
legislative power of the Ruler such as is prescribed by Art.
31 of the Constitution; and Art. 31 had not been then
applied to the State. Subsequently when Art. 31(2) was
extended to the State the Act no doubt became the existing
law and it has been saved by the new and modified cl. (5) of
the said Article.
There is another aspect of the matter to which reference
must be made. Section 26 of the Act had left the final
decision on the question of the payment of compensation to
the Constituent Assembly of the State; and it is common
ground that the Constituent Assembly has decided not to pay
any compensation. Mr. Chatterjee contends that this
decision is
(1) Maxwell on " Interpretation of Statutes ", 10th Ed., P.
17.
invalid because the Constituent Assembly itself was, not
properly called and constituted. There is no substance in
this argument. After Yuvaraj Karan Singh was put in charge
of the duties of governing the State by Maharaja Hari Singh
by his proclamation issued on June 20, 1949, he began to
function as a Ruler and was entitled to exercise all his
powers in that behalf He realised that the original plan of
Maharaja Hari Singh to call a national assembly which he
announced on March 5, 1948, would not meet the requirements
of the situation which had radically changed; and the
Yuvaraj thought that a Constituent Assembly on a broader
basis should be called and should be entrusted with the task
of framing a Constitution without any delay. It is idle to
suggest that the Yuvaraj was bound to convene the national
assembly on the same lines as were laid down by Maharaja
Hari Singh in his proclamation and with the same object, for
the same purpose, and subject to the same conditions. It
was for the Yuvaraj to consider the situation which
confronted him and it was within his competence to decide
what solution would satisfactorily meet the requirements of
the situation. We have no doubt that the Yuvaraj was
perfectly competent to issue the proclamation on April 20,
1951, under which the Constituent Assembly ultimately came
to be elected and convened. If the Constituent assembly was
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properly constituted and it decided not to pay any
compensation to the landlords it is difficult to understand
how the validity of this decision can be effectively
challenged.
That leaves only one question to be considered. It is
contended that the Act is invalid under Art. 254 of the
Constitution because it is inconsistent with the two earlier
Acts, No. 10 of 1990 and No. 4 of 1977. It is unnecessary
to enquire whether there is any repugnancy between the Act
and the earlier Acts to which the appellant refers. In our
opinion the argument based on the provisions of Art. 254
must be rejected on the preliminary ground that it is
impossible to invoke the assistance of this Article
effectively because in terms the essential conditions for
its application are absent in the present case. This
argument assumes that under Art. 254(1) if there is
repugnancy between
300
any provision of a law made by the Legislature of a State
and any provision of an existing law with respect to One of
the matters enumerated in the Concur-rent List, then subject
to the provisions of cl. (2), the law made by the
Legislature of the State was to the extent of the repugnancy
void. The appellant concedes that there is no scope for
applying the provisions of el. (2) of Art. 254 which deals
with cases where the subsequent law has been reserved for
the consideration and assent of the President; but this
aspect of the matter itself shows that the whole Article
would in substance be inapplicable to the State. Clause (2)
of Art. 254, which is its integral and important part,
postulates that the Legislature of the State, in enacting a
law on the relevant matter may reserve it for consideration
of the President and his assent, and thereby save the
consequences of cl. (1) ; and cl. (2) was clearly inapplic-
able to the State. Besides, it is clear that the essential
condition for the application of Art. 254(1) is that the
existing law must be with respect to one of the matters
enumerated in the Concurrent List; in other words, unless it
is shown that the repugnancy is between the provisions of a
subsequent law and those of an existing law in respect of
the specified matters, the Article would be inapplicable;
and, as we have already pointed out, Schedule Seven which
contains the three Legislative Lists was not then extended
to the State; and it is, therefore, impossible to predicate
that the matter covered by the prior law is one of the
matters enumerated in the Concurrent List. That is why Art.
254 cannot be invoked by the appellant. On this view, it is
not necessary to consider whether the construction sought to
be placed by the appellant on this Article is otherwise
correct or not.
The result is that all the grounds urged by the appellant
against the validity of the Act fail, and so it must be held
that the High Court was right in taking the view that the
plaintiff had not shown that the Act was ultra vires. The
appeal accordingly fails and is dismissed with costs.
Appeal dismissed.
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