Full Judgment Text
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PETITIONER:
THE STATE OF SAURASHTRA
Vs.
RESPONDENT:
MEMON HAJI ISMAIL HAJI
DATE OF JUDGMENT:
04/08/1959
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
DAS, SUDHI RANJAN (CJ)
BHAGWATI, NATWARLAL H.
CITATION:
1959 AIR 1383 1960 SCR (1) 537
ACT:
Act of State--Taking over of administration of Junagadh
State by Dominon of lndia-Resumption of Property by
Administrator before completion of such act-If an act of
State not justiciable in municipal Courts.
HEADNOTE:
The suit, out of which the present appeal arose, was one
originally brought by the respondent against the State of
junagadh, later on substituted by the State of Saurashtra,
for a declaration that the Administrator’s order dated
October i, 1948, resuming the immoveable property in suit
was illegal, unjust and against all canons of natural
justice. The suit was decreed by the Civil judge and the
decree was affirmed by the High Court in appeal. The only
point for determination in this appeal was whether the act
of Resumption by the Administrator was an act of State
performed on behalf of the Government of India and involved
an alien outside the State and was not, therefore,
justiciable in the municipal Courts. With the passing of
the Indian Independence Act 1947, and lapse of paramountcy
by -reason Of S. 7 thereof, the Nawab of junagadh became
sovereign, but instead of acceding to the new Dominion he
left for Pakistan. It appeared from the White Paper on
Indian States that the Government of India took over the
administration of the State on November 9, 1947, at the
request of the Nawab’s Council, but did not formally annex
it till January 2o, 1949, and during that period the
Administrator maintained law and order and carried on the
administration.
Held, that there could be no, doubt that the act of the
Dominion of India in assuming the administration of junagadh
State was an act of State pure and simple and the resumption
in
538
question having been made by the Administrator before that
act was completed and at a time when the people of junagadh,
including the respondent, were aliens outside the State, the
act of resumption, however arbitrary, was an act of State on
behalf of the Government of India and was not, therefore,
justiciable in the municipal Courts.
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The test in such cases must be whether the State or its
agents purported to act " catastrophically " or subject to
the ordinary course of law.
Salaman v. Secretary of State for India, (1906) i K.B. 6I3,
Johnstone v. Pedlar, (192I) 2 A.C. 262, Secretary of State
in Council for India v. Kamachee Boye Sahaba, (1859) 13
Moore P.C. 22, Vaje Singh Ji joravar Singh & Ors. v.
Secretary of State for India, (1924) L.R. 51 I.A. 357,
Dalmia Dadri Cement Co. v. Commissioner of Income-tax,
[1959] S.C.R. 729, relied on.
Forester and Others v. Secretary of State for India, 18 W.R.
349 P.C., considered.
The essence of an act of State was the arbitrary exercise of
sovereign power, on principles other than or paramount to
the municipal law. Although the sovereign might allow the
inhabitants to retain their old laws and customs, it could
not itself be bound by them until it purported to act within
them, thus bringing to an end the act of State.
Campbell v. Hall, 1 Comp. 204; 98 E.R. 1045, Ruding v.
Smith, 2 Hag. Con. 384; 161 E.R. 774 and E.I. Co. v. Syed
Ali, 7 M.I.A. 555, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 185 of 1955.
Appeal from the judgment and decree dated the February 19,
1953, of the former Saurashtra High Court in Civil First
Appeal No. 16 of 1952, arising out of the judgment and
decree dated December 15, 1951, of the Civil Judge, Senior
Division, Junagadh in Civil Suit No. 470 of 1950.
G. K. Daphtary, Solicitor -General of India, B. Ganapathy
lyer and D. Gupta for the appellant.
I. N. Shroff, for the respondent.
H. J. Umrigar and K. L. Hathi, for the Interveners.
1959. August 4. The Judgment of the Court was delivered by
HIDAYATULLAH J.-This appeal with a certificate from the
former High Court of Saurashtra under Art.133 of the
Constitution read with Ss. 109 and 110 of
539
the Code of Civil Procedure, has been brought against the
judgment of that Court dated February 19, 1953, in Civil
First Appeal No. 16 of 1952.
The appellant is the State of Saurashtra, which stood
substituted for the State of Junagadh, against which the
suit was originally filed. The respondent, Memon Haji
Ismail Haji Valimahomed of Junagadh, (hereinafter referred
to as the respondent, brought this suit originally against
two defendants, the State of Junagadh and one Jamadar Abu
Umar Bin Abdulla Abu Panch (hereafter referred to as Abu
Panch), for a declaration 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 Rs. 30,000 plus Rs. 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
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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 built a house on it. A
Rukka was issued to him on December 2, 1939, which is
plaintiff s Exhibit No. 34. In the year 1941, the Nawab of
Junagadh purchased the property from Khokhar, though the
document by which this purchase took place has not been
produced in the case. On November 17,1941, the Nawab gave
this property by gift to Abu Panch. Abu
540
Panch in his turn sold on November 24, 1943 the property to
the respondent for Rs. 30,000. In the original gift deed
(described in plaintiff’s Exhibit dated May 18, 1942) there
does not appear to have been any mention of a power to
transfer the property. Indeed, in the said document of May
18, 1942, it was stated that the house was given for the "
use and enjoyment " of Abu Panch. Subsequently, on February
12, 1944, the Nawab ordered certain amendments in the Palace
Order by making it possible for Abu Panch to sell the house.
It was stated as follows:
" ... you are hereby granted from the date of gift i.e. 17-
11-41 the title to sell the house as defined in this Rukka
and as per directions received."
It appears that this additional Shera was issued to validate
the sale which had been effected by Abu Panch earlier.
However, the matters stood thus when after Independence the
affairs of Junagadh State fell into a chaos, and at the
invitation of the State Council the Government of India
ordered the Regional Commissioner, Western India and Gujerat
States Region to assume charge of the administration of the
State on behalf of the Government of India. The Regional
Commissioner on November 9, 1947, issued a Proclamation
which was published in the Destural Amal Sarkar Junagadh of
November 10, 1947, stating that he had assumed charge of the
administration of the Junagadh State at 18-00 hours under
the orders of the Government of India. The Proclamation
which is brief, may be quoted here:
" 1, N. M. Buch, Barrister-at-law O.B.E., I.C.S., Regional
Commissioner, Western India & Gujarat States Region, have
this day assumed charge of the administration of the
Junagadh State at 18.00 Hours under the orders of the
Government of India, at the request of the Junagadh State
Council supported by the people of Junagadh in view of the
complete breakdown of administration resulting in chaotic
condition in the State. The first task of myself and my
officers will be to ensure complete peace and order
throughout Junagadh State territory, and to give even
justice to all communities. The majority
541
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."
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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, N. M. Buch,
14th November, 1947. Regional Commissioner,
Western India & Gujarat
States Region."
On October 13, 1948,Shri Shiveshwarkar passed Secretariat
Order No. R/3289 of 1948, which was impugned in the suit.
It reads:
"Land measuring Sq. Yds. 1,846-9-12 with the building
thereon, situated outside Majevdi Gate opposite workshop was
given as a gift by way of Inam to Abu Umar Bin Abdulla Abu
Panch of Junagadh under Private Secretary’s Office No. P158
dated 17th November, 1941. The donee had no right to sell
the said land and building under Rukka No. 32/98 and the
vendor Sheth Haji Ismail Haji
69
542
Valimahomed had purchased the same with the full knowledge
of the contents hereof.
The. grant being a wanton and unauthorised gift of Public
property the above-said order is hereby cancelled and as
the-subsequent purchaser does not get any right, title or
interest higher than that possessed by the donee, Mr. Abu
Panch, it is ordered that the said land with the
superstructures thereon should be resumed forthwith by the
State as State property.
Sd. S. W. Shiveshwarkar
Administrator
President’s Executive
Council, Junagadh State."
It appears that immediately afterwards the Administrator
took this property in his possession, and the plaintiff-
respondent after serving a notice under s. 423 of the
Junagadh State Civil Procedure Code (corresponding to s. 80
of the Civil Procedure Code, 1908) filed the suit for the
above declaration in the High Court of the State. As
pointed out above, the suit was transferred subsequently to
the Civil Judge, Senior Division, Junagadh, who decreed it
granting the declaration on December 15, 1951. He held that
the Administrator’s order was illegal and inoperative and
also against " all canons of natural justice." An appeal was
filed b the State of Saurashtra pleading, as was done in the
suit itself, that the action of Shri Shiveshwarkar who was a
de-legate of the Government of India appointed under s. 3(2)
of the Extra-Provincial. Jurisdiction Act, was not
justiciable being an act of State, that the Civil Court’s
jurisdiction was barred under s. 5 of the Extra Provincial
Jurisdiction Act and s. 4(2) of Ordinance No. 72 of 1949 and
that the grant was always resumable by the Ruler and Shri
Shiveshwarkar as the successor could also resume the same.
The High Court of Saurashtra referred in detail to a minute
prepared 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
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Court also
548
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 Courts.
The term ’act of State’ has many uses and meanings. In
France and some Continental countries the acts of the State
and its officers acting in their official capacity are not
cognizable by the ordinary courts nor are they subject to
the ordinary law of the land. The reason of the rule is
stated to be that the State as the fount of all law cannot
be subordinate to it. In our system of law which is
inherited from English Jurisprudence this is not accepted
and save some acts of a special kind, all other official
acts must be justified as having a legal foundation. In
this sense act of State’ means not all governmental acts as
it does in the French and Continental Systems but only some
of them. The term is next used to designate immunities and
prohibitions sometimes created by statutes. The term is
also extended to include certain prerogatives and special
immunities enjoyed by the sovereign and its agents in the
business of internal government. The term is even used to
indicate all acts into which, by reason that they are
official in character, the Courts may not inquire, or in
respect of which an official declaration is binding on the
Courts.
544
We are not concerned With these and such other meanings.
The defence is founded on an act of State involving an alien
outside the State. Such an act of State was described in
elegant phrase by Fletcher Moulton, L. J., in Salman v.
Secretary of State for India (1) as ’a catastrophic change
constituting a new departure.’ It is a sovereign act which
is neither grounded in law nor does it pretend to be so.
Examples of such ’catastrophic changes’ are to be found in
declarations of war, treaties, dealings with foreign
countries and aliens outside the State. On the desirability
or the justice of such actions the Municipal Courts cannot
form any judgment. In Civil commotion, or even in war or
peace, the State cannot act catastrophically’ outside the
ordinary law and there is legal remedy for its wrongful acts
against its own subjects or even a friendly alien within the
State. See Johnstone v. Pedlar (2). But there is immunity
from courts’ interference in respect of acts done by the
State against an alien outside the State. The question thus
is always: Did the State or its agents purport to act
’catastrophically’ or subject to the ordinary course of the
law? This question was posed in Secretary of State in
Council for India v. Kamachee Boye Sahaba (3) by Lord
Kingsdown in these words:-
" What was the real character of the act done in this case?
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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
(1) (1906) i K.B. 6I3 at 640. (2) (192I) 2 A.C. 262.
(1859) 13 Moore P. C. 22.
545
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
which Municipal Courts administer. Such Courts have neither
the means of deciding what is right nor the power of
enforcing any decision which they make."
After deciding that there was an act of State, Lord
Kingsdown further observed:
" of the propriety or justice of that act, neither the Court
below nor the Judicial Committee have the means of forming,
or the right of expressing if they had formed, any opinion.
It may have been just or unjust, politic or impolitic,
beneficial or injurious, taken as a whole, to those whose
interests are affected. These are considerations into which
their Lordships cannot enter. It is sufficient to say that,
even if a wrong-has been done, it is a wrong for which no
Municipal Court of justice can afford a remedy."
Similar view was expressed also in Raja of Coory v. East
India Company (1), Raja Saligram v. Secretary of State for
India in Council (2) ; and Sardar Bhagwan Singh v. Secretary
of State (3 ), and Secretary of State v. Sardar Rustam Khan
(4). The principle of these cases has been extended to all
new territories whether acquired by conquest, or annexation
or cession or otherwise and also to rights, contracts,
concessions, immunities and privileges erected by the
previous paramount power. These are held to be not binding
on the succeeding power even though before annexation it was
agreed between the two powers, that they ’would be
respected. Lord Dunedin in Vaje Singh Ji Joravar Singh &
Others v. Secretary of State for India (5) summed up the law
in these words:-
" When a territory is acquired by a sovereign. State for the
first time that is an act of State. It
(1) (1860) 29 Beav. 300.
(2) (1872) L.R. Ind. App. Suppl. Vol. 119.
(3) (1874) L.R. 2 A.I. Cas. 38.
(4) (1941) L.R. 68 I.A. 109.
(5) (1924) L.R. 511 I.A. 357, 360.
546
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 recognized 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 any
such rights, as that sovereign has, through his officers,
recognized. Such rights as he had under the rule of
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predecessors avail him nothing. May 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 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 (1), Hoani Te
Heuheu Tukino v. Aotea District Maori Land Board (9) were
approved and applied by this Court in Dalmia Dadri Cement
Co. v. Commissioner of Income-tax (3) 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 incumbent on his officers to show that their action
which is under challenge is within the authority conferred
on them by law. Altogether different considerations arise
when the act of the sovereign has reference not to the
rights
(1) (1899) A.C. 572. (2) (1941) A.C. 308.
(3) [1959] S.C.R. 729, 740-41.
547
of his subjects but to acquisition of territories belonging
to another sovereign. That is a matter between independent
sovereigns, and any dispute arising therefrom must be
settled by recourse not to municipal law of either State but
to diplomatic action, and that failing, to force. That is
an act of State pure and simple, and that is its character
until the process of acquisition is completed by conquest or
cession. Now, the status of the residents of the
territories which are thus acquired is that until
acquisition is completed as aforesaid they are the subjects
of the ex-sovereign of those territories and thereafter they
become the subjects of the new sovereign. It is also well
established that in the new set up these residents do not
carry with them the rights which they possessed as subjects
of the ex-sovereign, and that as subjects of the new
sovereign, they have only such rights as are granted or
recognized by him; vide Secretary of State for India v. Bai
Rajbai (1), Vajesingji Joravar Singhji and Others v.
Secretary of State (2), Secretary of State v. Sardar Rustam
Khan (3) and Asrar Ahmed v. Durgah Committee, Ajmer (4). In
law, therefore, the process of acquisition of new
territories is one continuous act of State terminating on
the assumption of sovereign powers de jure over them by the
new sovereign and it is only thereafter that rights accrue
to the residents of those territories as subjects of that
sovereign. In other words, as regards the residents of
territories which come under the dominion of a, new
sovereign, the right of citizenship commences when the act
of State terminates and the two, therefore, cannot co-exist.
It follows from this that no act done or declaration made by
the new sovereign prior to his assumption of sovereign
powers over acquired territories can quoad the residents of
those territories be regarded as having the character of a
law conferring on them rights such as could be agitated in
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his courts."
(1) L.R. 42 I.A. 229. (3) (1941) L.R 68 I.A. 109.
(2)(1924) L.R. 51 I.A. 357, 360.
(4) (1947) A.I.R. 1947 P.C. I.
548
It is, however, otherwise if the act of the new sovereign is
meant to be within the law and is not a concomitant of an
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 this title of the government, that claim, like any other
arising between the government and its subjects would prima
facie be cognizable by the Municipal Courts of India."
From these cases it is manifest that an act of State is an
exercise of sovereign power against an alien and neither
intended nor purporting to be legally founded. A defence of
this kind does not seek to justify the action with reference
to the law but questions the very jurisdiction of the Courts
to pronounce upon the legality or justice of the action.
We have now to consider whether the necessary facts to
support the plea in defence existed in this case. We must
determine what was the status of the respondent on the date
the impugned Order was passed against him. The position of
the ex-Rulers of the former Indian States has, on more than
one occasion,
(1) 18 W.R. 349 P.C.
549
been analysed by this Court and need not detain us for long.
After the lapse of paramountcy by reason of s. 7 of the
Indian Independence Act. 1947, the Nawab of Junagadh became
a sovereign but he did not accede to the new Dominion by
executing an Instrument of Accession as did the other Rulers
in Saurashtra. He left the country. The position of
Junagadh was thus unique and what subsequently happened is
described in the White Paper on Indian States which it has
become customary to rely upon as a constitutional document,
without proof.
" After the Nawab of Junagadh had left the State for
Pakistan, the administration of this State was taken over by
the Government of India on November 9, 1947 at the request
of the Nawab’s Council. Obviously, the action taken by the
Government of India had the fullest approval of the people
of Junagadh in that the results of the referendum held in
Junagadh and the adjoining smaller States in February 1948,
showed that voting in favour of accession to India was
virtually unanimous. During the period the Government of
India held charge of the State, an Administrator appointed
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by the Government of India assisted by three popular re-
presentatives conducted the administration of the State. In
December 1948, the elected representatives of the people of
Junagadh resolved that the administration of the State be
made over to the Government of Saurashtra and that the
representatives of Junagadh be enabled to participate in the
Constituent Assembly of Saurashtra State with a view to
framing a common Constitution for 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,"
70
550
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 Council shall
henceforth be made to the Administrator, Junagadh State, in
whom all the powers so far exercised by the Council and its
Members shall henceforth vest.
Junagadh, S. W. Shiveshwarkar,
16th November, 1947 Administrator, Junagadh
State."
From that date the administration of the Junagadh State was
centered in the Administrator as the agent of the Dominion
of India. The people of Junagadh did not, strictly
speaking, become the citizens of the Dominion till much
later. During the interval they were aliens even though
they desired union with India and had expressed themselves
almost unanimously in the Referendum.
The act of the Dominion in thus assuming the administration
of the Junagadh State was an act of State pure and simple
and the action of the Administrator was taken before the act
of State was over.
The respondent contended before us that the theory of an act
of State did not apply to this case. According to him the
State Council was in existence and had invited the Dominion
of India to step in and all the local laws were still
applicable. He pointed out that the Saurashtra Civil
Procedure Code was amended by a notification on 7th July,
1948, and that also proved
551
that the local laws were in force and the Administrator was
subject to them in his dealings with private property, under
the general superintendence of the Regional Commissioner.
All this is beside the point and does not truly interpret
the act of State which had taken place. The essence of an
act of State is the exercise. of sovereign power and that is
done arbitrarily, on principles either outside or paramount
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to the municipal law. The fact that the sovereign allows
the inhabitants to retain their old laws and customs does
not make the sovereign subject to them and all rights under
those laws are held at the pleasure of the sovereign. It is
only when the sovereign can be said to have purported to act
within the laws that-the act of State ceases to afford a
plea in defence. Before that stage is reached, government
may be influenced by the existing laws and rights and
obligations but is not governed or bound by them. See
Campbell v. Hall (1), Ruding v. Smith (2) two cases of
conquest and E. 1. Co. v. Syed Ali (3). See also Mayne
Criminal Law of India (4th Edition) II pp. 119, 120 where
the law is summarised. There is nothing to prove that, the
Dominion had expressly or even tacitly recognized the ,old
rights, the burden of proving which lay upon the respondent
Secretary of State for India v. Bai Rajbai (4) and
Vajesingh’s case (5) (op. cit.).
In this view of the matter it is not necessary to determine
whether the Nawab could or did confer title on the donee in
respect of this property. Equally fruitless will be an
inquiry into the powers of the Nawab - to resume or derogate
from, his grants and whether similar or identical powers
were inherited by the Dominion Government or its agents.
The action of the Dominion Government being an act of State,
the act of the Administrator, however arbitrary, was not
justiciable in the municipal courts and the suit was not
well founded.
The appeal is, therefore, allowed. The respondent’s suit
shall be dismissed with costs. throughout.
Appeal allowed.
(1) I COMP. 204; 98 E.R. 1045.
(2) 2 Hag. Con. 384; 161 E.R. 774.
(3) 7 M.I.A. 555 at 578.
(4) L.R. 42 I.A. 229.
(5) (1924) L.R. 51 J.A. 357, 360.
552