Full Judgment Text
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PETITIONER:
STATE OF SAURASHTRA
Vs.
RESPONDENT:
JAMADAR MOHAMAD ABDULLA AND ORS.
DATE OF JUDGMENT:
03/10/1961
BENCH:
DAS, S.K.
BENCH:
DAS, S.K.
SINHA, BHUVNESHWAR P.(CJ)
SARKAR, A.K.
AYYANGAR, N. RAJAGOPALA
MUDHOLKAR, J.R.
CITATION:
1962 AIR 445 1962 SCR Supl. (3) 970
CITATOR INFO :
R 1962 SC1288 (30)
R 1964 SC1043 (19,69,70,93,98,117,136,152,15
R 1967 SC 40 (5)
RF 1969 SC 370 (8)
RF 1981 SC1946 (18)
ACT:
Act of State-Junagadh State-When integrated into India-
Political Question-Reference to Government for opinion-
Grants by Nawab-Resumption by Administrator-if can be
challenged in Municipal courts-Government of India Act 1935
(26 Geo v. Ch 2), 6, 299 (1).
HEADNOTE:
The Nawab of junagadh State made grants of properties in
favour of the respondents before 1947. After India attained
independence the Nawab fled the country. At the request of
the Nawab’s Council the Government of India took over the
administration of the State and on November 9, 1947 the
Regional Commissioner assumed charge of the administration
on behalf of the Government of India.- The Regional Commis-
sioner appointed an Administrator of junagadh State. In
December 1948, the elected representatives of Junagadh and
certain other neighbouring States recommended to the Govern-
ment of India and to the United State that of Saurashtra
that the States be integrated. Thereafter, the
administration of junagadh State was integrated with the
United State of Saurashtra on January 20, 1949. On
different dates between November 9, 1947, and january 20,
1949, the Administrator passed orders cancelling the grants
in favour of the respondents and took possession of the
properties. The respondents filed civil suits for the
recovery of the properties on the ground that
971
they had been taken away without the authority of law. The
appellant contended that the orders made by the
Administrator arose out of and during an act of State and
were not justiciable in the municipal courts. The
respondent contended that the ,question as to when the
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change over of sovereignty took place was a political
question which-should be referred to the Government of India
for its Opinion and the Court should abide by that opinion
and that the facts of this case showed that there was
complete change over of sovereignty on November 9, 1947, and
the act of State was complete.
I Held, (per C. J., Das and Ayyangar, jj.) that the impug-
ned orders arose out of and during an act of State and they
could not be questioned before municipal tribunals. There
was no change over of de jure sovereignty on November 9,1947
when the administration was taken over and junagadh
continued to exist as such even after this date. junagadh
was not a State which acceded to the Dominion nor was its
territory included within the territory of the Dominion as
from November 9, 1947. It was only on January 20, 1949,
that the Dominion of India assumed de jure sovereignty over
junagadh by its integration into the United State of
Saurashtra and the act of State came to an end. It was not
necessary to seek information from the Government of India
as to the date of the change over as there was no
uncertainty about it and also as the Government of India had
spoken with sufficient clarity in the White Paper on Indian
States.
State of Saurashtra v. Memon Haji Ismail Haji, (1960) 1
S.C.R. 537 and M/s. Dalmia Dadri Cement Co. Ltd. v. The
Commissioner of lncome-tax, (1959) S.C.R. 729, followed.
In re: Southern Rhodesia,(1919) A.C. 211 and Samaut
v. Strickland (1938) A.C. 678, referred to.
Per Sarkar and Mudholkar JJ. Even if it be accepted that
junagadh was annexed on November 9, 1947, and the
respondents became citizens of India they could assert and
establish, in the municipal courts of the new sovereign only
such rights as were recognised by the Indian Dominion. The
burden of showing that they were so recognised lay on the
respondents. The orders passed by the Administrator show
that far from recognizing the- grants in favour of the
respondents they were repudiated. The respondents could not
claims the benefit of s. 299 (1) of the Government of India
Act; 1935, as they had to establish that on or after
November 9, 1947, they possessed legally enforceable right
against the Dominion of India, which they could only do by
showing that their pre-existing rights had been recognized
by the Dominion of India; s.299(1) did rut enlarge any
rights to property but only protected those which a person
already had.
972
M/s Dalmia Dadri Cement Co., Ltd. v. The Gommissioner of
Income-tax, (1959) S.C.R. 729, In Re,.. Southern Rhodesia,
(1919) A.C. 211. Samaut v. Strickland, (1938) A.C. 678,
United States v. Percheman, (1833) 32 U.S. 51, Cook v.
Sprigg, (1899) A.C. 572, Phacker v. State of Saurashtra,
A.I.R. 1954 S.C. 680 and Virendra Singh v. State of Uttar
Pradesh, (1955) 1 S.C.R. 415.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 220, 221,
349 and 497 of 58.
Appeals from the judgment and decrees dated 1955 March
24,1956 September 15 and 1956 April 12 of the former
Saurashtra High Court at Rajkot in Civil Second Appeals Nos.
123 of 1953 & 104 of 1955 and Civil Appeals Nos. 42 of 1953
and 50 of 1954.
M. C. Setalvad, Attorney-General for India, C. K.Daphtary,
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Solicitor-General of India, B. Sen and R. H. Dhebar, for the
Appellant (In all the Appeals).
I. N. Shroff for the Respondents (In C. As. Nos. 220 and 221
of 1958).
G.S. Pathak, N. P. Nathnwni and K. L. Hathi for the
Respondents (In C.A. No. 349 of 1958).
J.P. Mehta, J. B. Dadachanji, Onkar Chand Mathur and
Ravinder Narain, for the Respondents C.A. No. 497 of 1958).
1961. October 3. The Judgment of Sinha, C.J., S. K. Das and
N. Rajagopala Ayyangar,, JJ. was, delivered by S. K. Das,
J. The Judgment of Sarkar and J. R. Mudholkar, JJ., was
delivered by J. R. Mudholkar, J.
S. K. DAs, J.-These four appeals which have been brought
to this Court on certificates granted by the then High Court
of Saurashtra under Art. 133 of the Constitution fall into
three groups, and have been heard together. The essential
facts relating to these appeals are the same, and ’a common
question of law now falls for determination on those facts.
973
The State of Gujarat., within whose territories the disputed
properties are now situate, is the appellant in the appeals.
The respondents and in some cases their. ancestors, obtained
grants from the then Nawab of Junagadh, which was then a
ruling State, in respect of lands and, in one case, of a
building known as "Datar Manzil’. These grants were
repudiated or cancelled and the property, subject of the
grant, was resumed by the Administrator who took over charge
of the administration of Junagadh on behalf of the Dominion
of India in 1947 in circumstances which we shall presently
state. The respondents brought suits challenging the
validity of the orders made by the Administrator. These
suits were decreed by the lower court and the decrees were
substantially upheld by the High Court of Saurashtra. The
principal point for decision in these appeals is whether the
impugned orders made by the Administrator arose out of and
during an act of State which was not justiciable in the
municipal courts. This is the only point which has been
agitated before us on behalf of the, appellant-State and
very strong reliance has been placed on the decision of this
Court in the State of Saurashtra v. Memon Haji Ismail Haji
(1) where, in circumstances same as those of the appeals
before us, it was held that the act of the Dominion of India
in assuming the administration of Junagadh was an act of
State pure and simple and the resumption of the grant in
question therein having been made by the Administrator
before that act was completed and at a time when the people
of Junagadh 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. It may be here noted
that by that decision this Court over-ruled the earlier
decision of the Saurashtra High Court in State of Saurashtra
v. Memon Haji Ismail Haji Valimamad(2),
(1) [1960] 1 S.C.R. 537.
(2) A.I.R. 1953 Saurashtra 180.
974
a decision on the basis of which the High Court decided the
cases under consideration in these appeals.
The learned Attorney-General has submitted that the decision
of this Court in the State of Saurshtra v. Memon, Haji
Ismail Haji completely covers and concludes the present
appeals. On behalf of respondents it has been, contended
that the decision aforesaid proceeded on a finding that the,
act of State,. was not completed before the impugned orders
were made and that finding being a finding of fact does, not
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bind the respondents who were not parties to the case in
which the decision was rendered. In the appeals before us
the main contention on behalf of the respondents has been
that the impugned orders were made after the assumption of
sovereignty by the Dominion of India was completed, and
therefore the decision of this Court in the State of
Saurashtra v. Memon Haji Ismail Haji(1) is not determinative
of the problem which arise,% in these, appeals. It has been
further argued that, after full sovereignty, had, been
assumed by the Dominion of India, the petition of the people
of Junagadh, including the respondents was not that of.
aliens outside the State, but their position on such
assumption of sovereignty was that of citizens of India
against whom there could be no act of State and they had
rights as such citizens in respect of which they could ask
for relief in the municipal courts.
We have set out above, in brief outline, the principal point
which falls for decision in these appeals and the respective
contentions of. the parties relating thereto in order to
highlight the main problem presented for solution in these
appeals.
But we must first set out the essential facts which are
relevant for the solution of the problem’ We have already
stated that the essential facts , are the same in these
appeals, though the facts relating
(1) [1960] I S. C R. 537.
975
to each’ of the grants made in favour of the respondents
are, different We shall state the essential facts bearing
upon. the main problem and then briefly refer to the grants
made in each of the
India attained independence in 1947. As from the 15th day
of August, 1947, two independent Dominions were set up known
respectively as India and Pakistan under the Indian
Independence Act, 1947 (10 & 11 Geo. VI. C. 30). Under s.
7 of the said Act, the suzerainty of Iris Majesty over the
Indian States including Junagadh lapsed. It released those
States from all their obligations to the Crown. The White
Paper on Indian States said (at page 32) :
"It was evident that if in consequence the
Indian States became separate independent
entities, there would be a serious vacuum not
only with regard to the political relationship
between the Central Government and the States,
but also in respect of the co-ordination of
all-India policies in the economic and other
fields. All that the Dominion Government
inherited from the Paramount Power was the
proviso to section 7 of the Indian Indepen-
dence Act, which provided for the continuance,
until denounced by either of the parties, of
agreements between the Indian States and the
Central and Provincial Governments in regard
to specified matters, such as Customs, Posts
and Telegraphs, etc. (Appendix IV)."
A process of accession was therefore begun and by August 15,
1947 all the States in the geographical limits of India
barring Hyderabad, Kashmir and Junagadh had acceded to the
Indian Dominion. The Nawab of Junagadh however, did not
accede to the new Dominion of India by executing an
Instrument of Accession as did the- other Rulers in
Saurashtra. He fled the country and the affairs of Junagadh
State fell into disorder and chaos. At the request
976
of the Nawab’s Council, the Government of India decided to
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take over the administration of the State. On November
9, 1947, the Regional Commissioner, Western India and
Gujarat States Region, assumed charge of the administration
of the State on behalf of the Government of India. A
proclamation was issued on that date which. said that the
Regional Commissioner had assumed charge of the
administration of the Junagadh State at 18-00 hours on
November 9, 1947. On November 14, 1947 the Regional
Commissioner appointed Shri S. W. Shiveshwarkar as
Administrator of Junagadh State. The Administrator passed
certain orders which are the orders impugned in these
appeals and to which we shall presently refer, but we must
first complete the general picture of political changes that
took place in Junagadh. In February, 1948 the Government of
India held a referendum in Junagadh State to ascertain the
choice of the people in regard to accession and the people
voted by a large majority in favour of accession to the
Dominion of India. The Administrator then decided with the
approval of the Government of India to appoint an Executive
Council with himself as President and three other persons as
members thereof. 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. It is
necessary to state now how this integration took place. On
January 23, 1948, thirty rulers of the principal States of
Kathiawar signed a covenant bringing into existence the
United State of Kathiawar (later I known as the’ United
State of Saurashtra) comprising the territories of their
States for the welfare of the people and entrusted to a
Constituent, Assembly the. task
977
of drawing up a democratic Constitution for that State
within the frame-work, of the Constitution of India, to
which they had already acceded. On that date Junagadh State
had no Ruler nor was any Covenant signed on behalf of the
Junagadh State. Later, in December, 1948, the elected
representatives of the people of Junagadh, Manavadar,
Mangrol, Bantwa, Babariawad and Sardargarh recommended to
the Government of India and the Government of the United
State of Saurashtra, as it was then called, that the
administration of the States mentioned above be integrated
with the United State of Saurashtra. The Rulers of the
Covenanting States thereupon entered into a Supplementary
Covenant with the concurrence of the Government of India to
provide for such integration and for the participation of
the elected representatives of the people of these States
into the Saurashtra Constituent Assembly. Article 3 of the,
Supplementary Covenant was in these terms (See White Paper
on Indian States, page 249) :
"From a date to be agreed upon between the
Government of the said States and the
Government of the United State of Saurashtra,
with the concurrence of the Government of
India, the administration of the said States
shall be integrated with that of the United
State of Saurashtra and thereafter the
legislative and executive authority, powers
and jurisdiction of the United State of
Saurashtra shall extend to the said States to
the same extent as it extends to the territory
of any Covenanting State.............."
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The administration of the Junagadh State was thereafter
integrated with that of the United State of Saurashtra on
January 20, 1949. Therefore, as from that date the
legislative and executive authority and jurisdiction of the
United State of Saurashtra extended to the Junagadh State to
the same extent as it extended to the rest of the
territories of the Covenanting States.
978
Further political changes took place after January 20,
1949, but with those changes we are not concerned
in the present appeals. The two dates which are important
for our purpose are November 91 1947, when the Regional
Commissioner first took over charge of the administration of
Junagadh and January 20, 1949 when Junagadh merged into the
United State of Saurshtra.
Now, as to the impugned orders made by the, Administrator.
In Civil Appeal No. 349 of 1958 the ancestor of the
respondents, had obtained grants from the then Nawab of
Junagadh of two villages called Handla and Venderwad some
time between the years 1865 and 1868. A detailed history of
the grants so made is not necessary for our purpose. On
December 6, 1947, the Administrator made the following order
"It has come to the Administrator’s notice
that Aba Salem Bin Abs Mahmed Hindi the
alienee of Handla village,
(i) was maintaining many Arab employees of
Timbdi it his house in Junagadh,
(ii) was uttering threats to massacre all
Hindus of Handla village,.
(iii) was keeping in Hendla fifty animals at
the expense of the poor village people,
(iv) did not pay any remuneration to Dhedh
employees of his garden and was exacting Veth
from them,
(V) was buying exhorbitant cesses from the
village people,
(vi) had converted into Islam three Hindus,
and
(vii) had taken the, following arms from Hand
to Junagadh about a month ago,:
979
(a) 12 bore guns and (b) one M. I. gun.
It is, therefore, ordered that. the village
J. of Handla should be taken under the State
manager. The Revenue Commissioner should mak
e
necessary managements for the same and report
compliance.
By that order the management of Kandla was taken over by the
State, Though there is no reference to the other village
Venderwad in the order the admitted position is that the
management of both the villages was taken over. Then on
January 8, 1949, the Administrator passed the following
order:
"The Junagadh State Government is pleased to
order that the land and villages comprising
the Handla estate which is an Inam grant be
resumed by the State forthwith."
This order also refers only to the Handla estate, but the
admitted position is that both the villages were resumed by
the order of the Administrator. It is the order dated
January 8, 1949, which is impugned by the respondents in
this appeal.
In Civil Appeal No 497 of 1958 the grant was in respect of a
bungalow or building known as ’Datar Manzil’. On 1 March 9,
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1948 the Administrator made the following order:
" The State building situated near Gadhrup
Wada at Junagadb, was granted to Khan Shri
Abdullkanmiyan Mahomedkhanmiyan hereditarily
by Way of gift, under Dewan "Daftar Tharay No.
3379 dated lot August,
The said Tharay is hereby cancelled and it is
hereby ordered in the interest of the State
that the said building along with all the
superstructures thereon should be resumed and
managed by the State as State property."
980
In Civil Appeals Nos. 220 and 221 of 1958 a the impugned
order is dated July 27, 1948, and is in these terms:
"Twenty five Santis of land from the village
of Khokhardea under Vanthali, Mahal was
granted as a gift ’hereditarily to Mr. Mohamed
Abdulla, son of late. Jamadar Abdulla Moosa
under Hazur Farman No. 279 dated 30th April,
1943.
In view of the principles of Alienation
settlement of 1897 no grant can be wantonly
favoured to anybody in contravention of the
well established principles of resumption
attaching to such grants.
It is hereby ordered that Hazur Farman No. 279
dated 30th April, 1943, is cancelled and the
land in question should be resumed by the
State forthwith by setting aside the
settlement made thereon. "
It will be noticed, from what has been stated above that the
impugned orders’-were all made after November 9, 1947, but,
before January 20, 1949. The question before us is whether
the orders were made in pursuance of acts of State not
justiciable in the municipal courts.
There can, be no doubt that if the decision of this Court in
State of Saurashtra v. Memon Haji Ismail Haji (1) applies,
then these appeals must be allowed. Learned counsel for the
respondents has however sought to distinguish that decision
on the ground that the decision proceeded on the footing
that the Dominion of India assumed sovereignty over Junagadh
on January 20, 1949. His contention is that when the
Dominion of India assumed charge of the administration of
Junagadh State on November 9, 1947, through the Regional
Commissioner, Western India and Gujarat States Region, there
was a complete changeover of sovereignty, the act of State
was complete, and the. Dominion of India became the new
sovereign; thereafter,
(1) [1960] I.S.C.R. 537.
981
the people of Junagadh including the respondents, so the
argument proceeded, became citizens of the Dominion of India
and had rights as. such citizens it in respect of which they
could ask for relief in the municipal courts. It would be
apparent that this argument consists of two steps: the first
step in the argument is that there was a complete changeover
of sovereignty on November 9, 1947 and the act of State was
complete; the second step in the argument which is really
based on the correctness of the first step is that on such a
change-over of ’sovereignty the people of Junagadh,
including the respondents, became citizens of the Dominion
of India and-were no longer aliens outside the Dominion., We
shall now consider the validity of the first step in the
argument. In doing so we must make it clear that we must
not be understood to have assented to the submission of
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learned counsel for the respondents that a finding as to
change-over of sovereignty or completion of an of State, is
a finding of fact pure and simple. In our view, the
question essentially is what inference in law should be
drawn from the fact proved or admitted relating to the
change-over of sovereignty. As the matter was not argued
from this stand point in the State of Saurashtra v. Memon
Haji Ismail Haji(1), we have allowed learned counsel for the
respondents to address us on this question.
Learned counsel for the respondents has made a two fold
submission: firstly, he has submitted that the question as
to when the change-over of ,sovereignty took place is a
political question, and must or should be referred to the
Government of India for opinion and the Court should abide
by that opinion; secondly,he has submitted that on the facts
admitted in this case, it should be hold that there. was a
complete change-over of sovereignty on November 9, 1947, and
the act of State was complete. We do not think that either
of these two submissions of learned counsel for the respon-
dents is correct. On the first snbmission he has
(1) [1960] 1 S.C.R. 537.
982
drawn our attention to para. 603 at pages 285-286, Vol. 7 of
Halsbury’s Laws. of England, 3rd ’Ed. That paragraph is in
these terms :
.lm15
" There is a class of facts which are conveniently termed
"facts of State". It consists of matters and questions the,
determination of which is solely in the hands of the Crown
or the government, of which the following are examples
(1) Whether a state of war exists between the British
Government and any other- State, and if so, When it began;
the municipal courts have no power of inquiring into the
validity of a declaration by the Crown whether a state of war
exists or whether it has ended:
(2) whether a particular territory is hostile, or
foreign, or within the boundaries of a particular state;
(3) whether and when a particular government is to be
recognised as the, government of an independent state,,
(4) The status of a person claiming, immunity from judicial
process on the ground of diplomatic privilege.
The court takes judicial notice of such facts of state, and
for this purpose in any case of uncertainty, seeks
information from a Secretary of State; and the information
so received is conclusive.
Learned counsel has also referred us to some of the English
decisions on which the statements in the paragraph quoted
above axe based. We consider it unnecessary to examine
those decisions., It appears to us that the question with
which we are concerned in the present appeals is not a
question on which it is necessary to seek information from
to relevant department of the Government of India; for ’ one
thing, it does not appear to us that there is any
uncertainty in the matter; secondly, as we shall
983
presently show, the Government of India in the relevant
department has already spoken with sufficient clarity in
the: White Paper on Indian States with regard to the
political changes in Junagadh and what the Government of
India has stated therein shows clearly enough that there was
no changeover of assumption of sovereignty on ’November 9,
1947 in the sense ’which learned counsel for the respondents
has contended- for; lastly, it appears to us that the
question with which we are concerned in these appeals is not
essentially a question as to any disputed ""facts of State"
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the determination of which is solely in the hands of
government; rather it is a question which must be determined
by the court. What we have to determine in these appeals is
not; the status or boundaries of a particular State
territory, but the validity or otherwise of the plea taken
on behalf of the appellant-State that the impugned orders
made by the administrator were acts "of State not
justiciable in the municipal courts. There is a long line
of decisions in which such a plea has been determined by
courts’ of law without the necessity of obtaining the
opinion of Government. The plea is really a plea with
regard to the maintainability of the suits brought by the
respondents and must be determined by the courts concerned.
At one stage of the arguments learned counsel for the
respondents referred us to s.6 of the Extra Provincial
Jurisdiction Act, 1947 (XLVII of 1947) and contended that
under that section it was obligatory on this court to refer
the question to the Ventral Government. When however it was
brought to his notice that s. 6 in terms did not apply to
the proceedings out of which these appeals have arisen he
submitted that even if, it be not obligatory to refer the
question to the Central Government, it is expedient that it
should be so referred inasmuch as the answer to the question
depends on "the extent of the jurisdiction" which the
Dominion of India, assumed in Junagadh on November 9, 1947.
This according to learned counsel, is a "’fact of State"
which only; Government can determine.
984
We have already stated there is no uncertainty about. the
facts on which the plea of the appellant State is based, and
Government has already spoken about them with sufficient
clarity. What are these facts and how has Government
spoken? We refer to para. 223 at pages 113 and 114 of the
White Paper on Indian States issued by the Government of
India, Ministry of States, a publication to which this Court
has referred in several earlier decisions as containing the
authentic opinion of Government on the political questions
involved.
"The position of Junagadh and certain other
adjoining States in Kathiawar may also be
briefly stated here. After the Nawab of
Junagadh had left the State for Pakistan, the
administration of the State was taken over by
the Government of India on November 9, 1647,
at the request of the Nawab’s Council.
Obviously, the action taken by the Govern.
ment 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 by the Government
of India assisted by three popular rep-
resentatives conducted the administration of
the State. In December 1948, the elected
representatives of the people of Junagadh
resolved that the administration of the Stat
e
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
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and the Junagadh State. Similar resolutions
were adopted by the representatives of
Manavadar, Mangrol,. Bantwa, Babariawad and
Sardargarh. Accordingly a Supplement Covenant
(Appendix XXXVI) was
985
executed by the Rulers of Kathiawar States
with a view to giving effect to the aforemen-
tioned resolutions. The administration of
Junagadh was taken over by the Saurashtra
Government on January 20, 1949, and of the
other States some time calling. Accordingly
the Constitution treats Junagadh and these
States as part of Saurashtra."
It would be clear from the aforesaid paragraph that the
various steps in the assumption of sovereignty over Junagadh
by the Dominion of India, between the dates November 9,
1947, and January 20, 1949, were these:
(1) The administration of Junagadh was taken over by the
Government of India on November 9, 1947 at the request of
the Nawab’s Council;
(2) during the period the Government of India held charge
of the State, an Administrator appointed by the Government
of India assisted by three popular representatives conducted
the administration of the State;
(3) in February, 1948 there was a referendum and the people
of Junagadh voted in favour of accession to India; but no
actual accession took place by the execution of any
Instrument of Accession;
(4) 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 the
representatives of Junagadh be enabled to participate in the
Constituent Assembly of Saurashtra State;
(5)- a Supplementary Covenant (Appendix XXXVI of the White
Paper) was executed by the Rulers of Kathiawar States with
a: view to giving effect to the resolutions aforesaid; and
(6) lastly, the administration of Junagadh was taken over
by the Government of Saurashtra on January 20, 1949.
986
In M/s. Dalmia Dadri Cement Co., Ltd. v. The
Commissioner of Income-tax (1) this Court observed.
.lm15
"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 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."
There may be cases where by a treaty or an agreement there
is a change,-over of de lure sovereignty at one and the same
time and in such a circumstance the change-over may not be a
process, but that is not what happened in the case of
Junagadh. The administration of Junagadh fell into chaos
and disorder and the Government of. India stepped in at the
request of the Nawab’s Council and took charge of the
administration through an Administrator, on November 9,
1947, the Ruler having fled the country before that date.
It is clear to us that there was no change- over of de jure
sovereignty on that date. Junagadh State still continued as
such and did not cease to exist; otherwise there would be no
meaning in the referendum held in February, 1948 or the
resolutions passed in December, 1948, by the elected
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 19
representatives of the people of Junagadh. Nor, would there
be any meaning in the Supplementary Covenant
executed by the Rulers of Kathiawar States. It is also
worthy of note that there was no accession to India by the
Junagadh State by the execution ’of any Instrument of
Accession. We may in this connection refer to ss. 5 and 6
of the Government of India Act, 1935, as they stood at the
relevant time. Section stated inter alia that the Dominion
of India shall,
(1) [1959] S. C. R. 729, 741.
987
as from the 15th day of August, 1947, be a Union, comprising
(a) the, Governor is’ Provinces, (b) the; Chief
Commissioners’ Provinces,(c) the Indian States acceding. to
the, Dominion in the manner provided by s. 6, and (d) any
other areas that, may with the consent of the Dominion be
included, in the Dominion. Junagadh was neither a
Governor’s nor a Chief Commissioner’s Province. It did not
accede in the manner laid down in s. 6. It was not,
therefore, a State acceding to, the Dominion. Nor do we
think that the territory of, Junagadh State was included
within the territory of the Dominion in the sense of el. (d)
of s. 5 as from November 9, 1917. The process of assumption
of sovereignty was not yet complete and the Dominion of
India did not treat the territory of Junagadh, as part of
its own territory. The Dominion Government gave its
concurrence to the Supplementary Covenant executed by the
Rulers of Kathiawar by which the States of Junagadh,
Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh were
to be integrated with Saurashtra. It is significant that in
this Supplementary, Covenant Junagadh was mentioned as a
separate State, the administration of which was to be
integrated with the United State of Saurashtra. It was only
when, this. integration took place that Junagadh ceased to
be a separate State. This position appears to us to be
beyond any doubt and has been made sufficiently clear by the
statements made in, par&. 223 of the White Paper on Indian
States.
Learned Counsel for the respondents has relied on certain
observations made in well-known text-books on International
law and has contented that State sovereignty and., State
jurisdiction are complementary and co-extensive; and a right
of property and control exercised by the State is really a
right of territorial severeignty and therefore the
acquisition of territory by a State can mean nothing else
than the acquisition of sovereignty over such territory.
(See Sohwarzenberger: International
988
Law 1945, Vol. 1, page 79: Charles Cheney Hyde:
International Law, 2nd revised edition, Vol. I, page 319;
Oppenheim’s International Law, 8th Edn. Vol. I, page 545).
He has contended that in view of the aforesaid observations,
it must be, held that the Dominion of India assumed
sovereignty over Junagadh on November 9, 1947; because, so
learned counsel contends, exercising control over a parti-
cular territory is exercising sovereignty over it. We do
not think that the observations to which learned counsel has
referred help in the solution of the problem before us. In
cases where the acquisition of new territory is a continuous
process, a distinction must be made between de,facto
exercise of control and de jure assumption of sovereignty.
The problem before us is, as was stated in M/s. Dalmia
Dadri Cement Co., Ltd. V. The Commissioner of Income-tax
(1), as to when the act of State was complete; in other
words, when did the assumption of sovereign powers de jure,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 19
by the new sovereign over territories acquired by it take
place? The problem is really one of State succession;
namely succession to International Persons as understood in
International law. Such a succession takes place when one
or more International Persons take the place of another
International Person in consequence of certain changes in
the latter’s condition; there may be universal succession or
partial succession. In the case before us, as long as
Junagadh State’ continued as such, there was no such
succession and even though the Dominion of India took over
the administration of Junagadh and exercised control
therein, it did not assume de jure sovereignty over it.
Therefore, the act of State did not terminate till January
20, 1949, when the Dominion of India assumed de, jure
sovereignty over Junagadh by its integration into the United
State of Saurashtra.
It is perhaps necessary here to refer to two decisions on
which learned counsel for the
(1) [1959] S. C. R. 729, 741.
989
respondents has relied: In re: Southern Rhodesia(1) and
Sammut v. Strickland (2). In the first decision it was
observed in connection with the conquest of certain
territories in Southern Rhodesia, that a proclamation of
annexation is not essential to constitute the Crown owner of
the territory as completely as any sovereign can be owner of
lands publici juris; a manifestation of the Crown’s
intention to that effect by Orders in Council dealing with
the lands and their administration, is sufficient for the
purpose. These observations were made in the context of a
question not between State and State but between sovereign
and subject. Lord Sumner said:
" No doubt a Proclamation annexing a conquered
territory is a well-understood mode in which a
conquering Power announces its will urbi et
orbi. It has all the advantages (and the
disadvantages) of publicity and precision.
But it is only declaratory of a state of fact.
In itself it is no more indispensable than is
a declaration of war at the commencement of
hostilities. As between State and State
special authority may attach to this formal
manner of announcing the exercise of sovereign
rights, but the present question does not
&rise between State and State. It is one
between sovereign and subject. The Crown has
not assented to any legislative act by which
the declaration of its will has been
restricted to one definite form or confined
within particular limits of ceremonial or
occasion. The Crown has not bound itself
towards its subjects to determine its choice
upon a conquest either out of hand or once and
for all. If her ’Majesty Queen Victoria was
pleased to exercise her rights, when Lobengula
was defeated by her and her subjects, as to
one part of the dominions in 1894 and as to
another. part not until 1898,
(1) [1919] A. C. 211.
(2) [1938] A. C. 678.
990
if she was pleased to do so by Public acts
of State which indicate the same election and
confer the same supreme rights of disposition
over his conquered realm as annexation would
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have done it is not for one of her subjects to
challenge her policy or to dispute her, manner
of giving effect to it.,
We do not think that these observations help to establish
the contention of learned counsel for the respondents that
any exercise of administrative control in acquired territory
must mean at once that there is an assumption of
sovereignty’ by the incoming State so as to terminate the
act of State. The observations made by Lord Sumner merely
show that with regard to territory which the ’Crown has
Conquered the Crown’s intention can be manifested in more
than one way, and not necessarily by a proclamation. In the
case before us a proclamation was issued by the
Administrator, but that merely announced that he had assumed
charge of the administration of Junagadh State under orders
of the Government of India. It made no announcement as to
assumption of sovereignty.
In the second decision one of the questions raised was the
true nature of the title of the Crown to the sovereignty of
Malta, and a distinction was sought to be drawn between
ceded territories those acquired by an act of cession from
some sovereign power, and those ceded by the general consent
or desire of the inhabitants. It was held that so far as
concerned the prerogative right of the crown to legislate by
Letters Patent or Orders in Council for the’ ceded colony,
the distinction was of no materiality’. It is difficult to
see how this-decision affords any assistance to the
respondents. It is indeed true that the people of Junagadh
voted for accession to the- Dominion of India-, but no
Accession actually took place and later there was a merger
in’ the United State of Saurashtra with the consent of the
people of, Junagadh and the Government of
991
India Till, such merger there was,, no "cession" of
territory in the I sense either with or without the Consent
of the people.
In view, the only conclusions which follows from the facts
which we have earlier stated is that there was no assumption
of sovereignty by the Dominion of India over Junagadh before
January 20, 1949.
This disposes of the main argument advanced on, behalf of
the respondents, and it is unnecessary in these appeals to
consider the further argument to what rights the subjects of
the ex-sovereign in the acquired territory carried with them
as against the new; sovereign. At one stage of his argument
learned counsel for, the respondents commended for our
acceptances the view of Chief Justice John Marshall in
United States v. Percheman (1) that-when’the inhabitants of
the acquired territory change their allegiance and their
relation to the old sovereign is dissolved, their rights of
property, remain undisturbed, and, he suggested that this
view was consistent with modern usage of nations and was
accepted by the Permanent Court of Inter. national Justice.
(See the Advisory Opinion of the Permanent Court on the
Settlers of German Origin in Territory ceded by Germany to
Poland, Series B, No. 6, particularly pp. 35-36). He
conceded, however that this Court has accepted the view
expressed by the English Courts in Cook v. Sprigg(2) and the
decisions which followed it. That view proceeds on the
doctrine that acquisition of territory by conquest, cession
or; annexation being an act of State’, municipal tribunals
have no authority to give a remedy in respect of any actions
arising therefrom (See M/s. Dalmia Dadri Cement Co.,
Ltd.,V. The Commissioner of Income-tax(3) and State of
Saurashtra v. Memon Haji Ismail Haji(4) Therefore learned
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counsel,was at great pains establish that the act of State
was complete on November 9, 1947,
(1) (1833) 32 U. S 51, 86-87.
(2) [1899] A. C. 572.
(3) [1959] S. C. R. 729, 741
(4) [1960] S. C. R. 53 7.
992
and he argued that thereafter the respondents be came
citizens of the Dominion of India and under s. 299 of
the Government of India Act, 1935, they could not be
deprived of property, save by authority of law. He relied
on two decisions of this Court: Thacker v. State of
Saurashtra (1) and Virendra Singh v. State of Uttar Pradesh
(2). In view of our finding that the act of State did not
terminate till the process of acquisition was complete on
January 20, 1949, it becomes unnecessary to consider this
second step in the argument of learned counsel. But per
haps it is necessary to add that the decision in Virendra
Singh v. State of Uttar Pradehe (2) was based on the special
circumstances mentioned there-in which led to the making of
the Constitution of India. The learned Attorney-General
appearing for the appellant-State has submitted that the
principle of Virendra Singh’s case (2) cannot be extended to
the entirely different set of circumstances in which the
Government of India Act, 1935, was made and a. 299 thereof
did not affect the doctrine that municipal tribunals have no
authority to give a remedy in respect of actions arising
from an act of State. He also drew our attention to a
decision of this Court in Jagannath Agarwala v. The State of
Orissa (a) in which in respect of some claims made against
the State before the coming into force of the Constitution
but enquired into and rejected by Government after the
coming into force. of the Constitution, it was held that
unless the now sovereign had expressly or impliedly admitted
the claims, the municipal courts bad no jurisdiction in the
matter.
We consider it unnecessary to give our decision on these
’submissions, because it is obvious that before the Dominion
of India assumed de jure sovereignty over Junagadh, the
respondents were not in a position to call to their aid the
provisions of s. 299 of the Government of India Act, 1935.
(1) A.I.R. 1954 S.C.680.
(2) [1935] 1 I. C.R. 415.
(3) [1962] 1 S.C.R. 205.
993
In the appeals before us we are dealing with orders made the
Administrator before the act of ,State was complete. The
action taken by the impugned orders &rose out of and during
an act of State. That being the position, it is clear that
the municipal, tribunals had no authority to give a remedy
in respect of such action.
It remains now to consider the last argument advanced on
behalf of the respondents. As was observed in State of
Saurashtra v. Memon Haji Ismail Haji (1) an act of State is
an exercise of sovereign power against an alien and is
neither intended nor purports to be legally founded. On
behalf of the respondents it has been contended that the
Administrator purported to cancel or :resume the grants
under consideration in these appeals in pursuance of law;
therefore, it was not open to the appellant-State to take up
the plea of an act of State. We’do not think that there is
any substance in this argument. Learned counsel for the
respondents in Civil Appeal No. 349 of 1958 has drawn our
attention to the pleadings, particularly to par&. 8 of the
written statement filed on behalf of the appellant-State.
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In that paragraph it was stated the order of resumption
dated January 8, 1949 was legal and the Administrator had
authority to resume such inam grant. On the basis of this
paragraph ’it has been contended that inasmuch as the
Administrator purported to act under authority of law it was
not open to the appellant-State to raise the plea of an act
of State. In this connection we must also refer to para. 17
of the written statement where the appellant-State
specifically pleaded that the plaintiff- respondent had no
right to bring the suit against Government. In the trial
court a specific issue was ;struck on the question as to
whether the court had jurisdiction to hear and determine the
suit. and under this issue the argument advanced was that
the order of resumption was an act od State not justiciable
in the municipal. courts. It appears, however, that the
appellant-State
(1) [1960] 1 S.C.R.537.
994
also took a plea in the alternative that the order of
resumption was justified under the rules in force in the
Junagadh State. The trial, court, held that the order of
resumption was not an act of State It further held that the
order of resumption was not justified by the rules in: force
in the Junagadh State. In these circumstances it cannot be
said that the appellant-State did not plead an act of State;
nor can it be said that it was not open to the appellant-
State to raise, that plea’ , In the High Court also the same
plea of: act of State was urged on behalf of the appellant-
State but was rejected by the High Court on the basis of its
decision in State of Saurashtra v. Memon Haji Ismail Haji
Valimamad(1). That decision, we have stated earlier, was
overruled by this Court in State of Saurashtra v., Memon
Haji Ismail Haii
Learned counsel for the respondents then, referred us to an
order dated February 9, 1949, ’in which it was stated that
inam grants were resumable at the pleasure of Government and
therefore the orders passed on January, 8, 1949, could not
be cancelled. Apparently the orders dated February., 9,
1949 was passed on some representation made, at the instance
of the plaintiffs-respondents. We have to read the two
orders, one dated January 8, 1949, and the other dated
February 9, 1949, together. If so read, it is clear that
the order dated January 8, 1949, was, made by the
Administrator not under the authority of any law but as an
act of State..
Learned counsel for the respondents relied on the decision
in Forester v. The Secretary. of State for India(3). In
that case, the Privy Council, upon a construction of the
treaty, or agreement made by the British. Government in
August, 1805, with Begum Sumroo, held that the Begum was not
a sovereign princess but a mere Jagirdar under obligation to
keep up a body, of troops to be employed when called upon
in, the
(1) All. R. 1953 Saurashtra 180.
(2) (1960) I S. C. R. 537.
(3) (1872) 18 W. R. 319 (P.C.).
995
service of the sovereign. On that finding it was held that
the resumption of the lands by the British Government upon
the death of the Begum was not an act of State but an act
done under legal title. We do not think that the principle
of that decision applies to the facts of these cases. In
Vejesingji ji Joravarsingji v. Secretary of State for India
(1) Lord Dunedin said that no plea specifically using the
words "’act of State" was required and the moment cession of
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territory was admitted., the onus was on the plaintiffs
respondents to prove that the right which they claim had
been expressly or tacitly recognised by the new sovereign.
If there was ,no such recognition and none was pleaded in
these cases the municipal courts would have, no jurisdiction
to give any relief. In this view of the matter it was not
open to the courts below to enquire into the powers of the
Nawab to resume or derogate from the grants made and whether
similar powers were inherited by the Dominion Government or
its agents. The action being an act of State was not
;justiciable in the municipal courts, even if the same were
arbitrary.
We have, therefore, come to the conclusion that the courts
below were wrong in holding that the suits were maintainable
and in enquiring into the merits of the cases. The
appellant-State is entitled to succeed on the plea that the
orders of resumption made by the Administrator arose out of
and during, an act of State and were not, therefore,
justiciable in the municipal courts.
We would accordingly allow these appeals and the suits will
stand dismissed with costs throughout. There will be one
hearing fee for the hearing in this court.
MUDHOLKAR, J.-We also agree that the appeals be allowed. but
we wish to I say a few words. To appreciate the points
which arise in these cases certain broad facts common to all
appeals may well
(1) (1924) L. R. 511 A. 357.
996
be stated. The respondents held certain properties in that
part of the present State of Gujarat which was formerly the
ruling State of Junagadh, by virtue of grants from its
Ruler. After India attained independence on August 15,
1947, the suzerainty which the British Crown held over the
State of Junagadh lapsed and that State became completely
sovereign. That was the effect of the Indian Independence
Act. Shortly thereafter, the Ruler of Junagadh went to
Pakistan leaving the State to its fate, with the result that
the affairs of that State fell into disorder. At the
invitation of the people of the State the Government of
India decided to step in and accordingly took over its
administration through the Regional Commissioner, Western
India and Gujarat States Region on November 9, 1917. A
proclamation was issued by him to the effect that he had
assumed the administration of Junagadh as from that date.
On November 14, 1947, he appointed an Administrator for
administering the territory. The Administrator passed
orders on different dates resuming the grants in favour of
the respondents and dispossessed them. Thereafter on
January 20, 1949, the territory of Junagadh was with the
approval of the Government of India integrated with the
United States of Saurashtra and the Administrator ceased to
exercise any functions as from that date.
The resumption of the grants and the validity of their
dispossession were challenged by the respondents by
instituting, suits for possession of the property after the
integration of Junagadh with the United State of Saurashtra
upon the ground that they could not be deprived of their
properties by executive action. According to them the act
of the Dominion of India in taking over the administration
of Junagadh territory on November 9, 1947, amounts to
assumption of sovereignty over it, that’ thereby its
residents became citizens of the Dominion of India as from
that date and, therefore, no not of state
997
such as resumption of their properties could be committed
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against them by the Indian Dominion. According to the
appellants no municipal court could-grant the relief claimed
by the respondents because the act complained of was an act
of state.
The plea of the respondents was accepted by the High Court
of Saurashtra following the decision in the State of
Saurashtra v. Memon Haji Ismail Haji Valimamd(1). The
present appeals are, from its judgment.
The Attorney-General who appeared for the appellants stated
that this Court has reversed that decision in State of
Saurashtra v. Memon Haji Ismail Haji (2) and that,
therefore, these appeals should be allowed. In that case
this Court held that the Indian Dominion merely assumed the
administration of Junagadh State on November 9, 1947 at the
request of the Ruler’s Council but did not formally annex it
till January 20, 1949. Mr. Pathak’s contention is that as
the respondents were not parties to the decision in Memon
Haji’s case (2) they are not bound by the finding of this
Court that the Junagadh State was annexed by the Indian
Dominion on January 20, 1949.
It seems to us, however, that the question whether Junagadh
was annexed on January 20, 1949, or. earlier would make
little, difference to the result of the appeals before us.
Nor again would the question whether the, I Extra-Provincial
Jurisdiction Act was applicable to the orders made by the
Administrator and this was a display of sovereignty, as
contended for by Mr. Pathak, would make any difference.
In along catena of cases beginning from Cook v. Spriggs (3)
and going upto Asrar Ahmed v. Durgah Committee, Ajmer(4) the
Privy Council has stated the legal position of the subject
of a displaced sovereign vis-a-vis the now sovereign. In
the-words
(1) A. I. R. 1953 Saurashtra 180.
(2) [1960] 1 S. C. R. 537.
(3) [1399] A. C. 572.
(4) A. I. R. 1947 P.C I.
998
of Lord Dunedin in Vajesinghji v. Secretary of State for
India(1), it is as follows When a territory is acquired
by,& sovereign State for the first time that is an act of
State. It matters not how the acquisition has been
brought about. It may be by conquest, it may be by cession
following on treaty, ’it may be by occupation of territory
hitherto unoccupied by a recognised ruler. In all cases the
result is the same. ’Any inhabitant of the territory can
make good in municipal courts established by the new
sovereign only such rights as that sovereign has, through
his officers, recognized. Such rights as he had tinder the
rule of predecessors avail him nothing. Nay more, even if
in a treaty of cession it is stipulated that certain
inhabitants should enjoy certain rights, that does not give
a title to those inhabitants to enforce those stipulations
in the municipal courts. The right to enforce remains only
with the high contracting parties."
This statement of the law has’ been accepted by this Court
in M/s. Dalmia Dadri Cement Co., Ltd. v. Commissioner of
Income-tax (2) upon which ;reliance has been placed in State
of Saurashtra V. Memon Haji Ismail Haji (3) and recently
also in Jagannath Aggarwala v. The State of Orissa (4).
Thus even if on the respondents’ own showing that the
Junagadh territory must be deemed to have been annexed by
the Indian Dominion by assuming administration over it and
thereupon its residents became citizens of India, they could
assert and establish in the municipal courts of the new
sovereign only such rights as were recognized by the.
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Indian Dominion. The respondents claim to be grantees from
the Ruler of Junagadh but their grants avail them nothing in
the courts of the now sovereign unless they were recognized
by that sovereign. The burden of showing that they were so
recognized lay on the respondents.
(1) (1921) L.R. 51 I. A. 357.
(2) [1959] S. C. R. 739.
(3) [1960] 1 S. C. R. 537.
(4) [1962] 1 S. C. R. 205.
999
A perusal of the orders passed by the administrator would
clearly show that, far from recognizing those grants ’they
Were in effect repudiated by him. The administrator in fact
resumed the grants but whatever the form his orders took in
truth and in substance they were no" more than a clear arid-
unequivocal declaration of the fact that the right’
claimed by the respondents to the ’properties in
question by virtue of the grants made in their favour by
the former Ruler. were not, recognized by the new sovereign.
Recognition or refusal of recognition of rights of
erstwhile aliens who had no legal enforceable , rights
cannot be said to be an act of state because in the
Indian Dominion other had already vested in the Indian
Dominion at the moment it occupied Junagadh territory
The right to retain Possession was also dependent, upon
recognition by the Dominion of India and by dispossessing
the respondents the former exercised its choice and refused
to recognise their rights. On the principle accepted by
this Court in the decisions already referred to, the res-
pondents "were disentitled from obtaining any redress from
’a court in the Indian Dominion, and after the commit into
force ’of the constitution, from a court in the union of
India, in the absence of recognition of their rights by it
or by the Union of India.
We may now’ advert to another point, urged by Mr. Pathak,
According to him, if we understood him correctly, the Extra
Provincial Jurisdiction Act was applied to Junagadh, that
thereunder the local laws prevailing therein were continued
and that the Alienation Settlement Act which was one of such
laws, conferred on the granted of rights against the Ruler.
By continuing this law the Dominion of India, accordant, to
him,. must be deemed to have recognized the respondents
rights under the grants. For enabling us to consider, the
point it was necessary for the respondents to place before
us the Order of the Dominion of India under
1000
S. 4 of the Extra Provincial Jurisdiction Act, 1947 Which
alone empowered it to prescribe the laws which of the Indian
Dominion, over-which it had assumed sovereignty or
administrative control. Similarly they had to place the
Alienation Settlement Act of Jungadh before us. In. the
absence of this material we cannot consider the argument at
all.
Mr. Pathak, however contended that if sovereignty was
assumed on November 9, 1947, the residents of Junagadh
became the citizens of the Indian Dominion and were
therefore, entitled for the protection of s. 299(1) of the
constitution Act, 1935.‘ This provision runs thus:
"No person shall be deprived of his property save by
authority of law".
What s. 299(1) protects are the rights of a person to
property which he had when s. 299(1) cases into force or
applied to him. It does not add to any property right of
any person, though it contains an admonition to the State
against deprive in any person of his property by mere
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executive action. For ascertaining whether the provision
has been violated we must first examine the existance and
the nature of.the rights possessed by the respondents on
November 9, 1947, that is, at the moment of assumption of
administration by the Dominion of India over Junagadh
territory assuming of,courge that this amounted to assump-
tion of sovereignty over Junagadh). Their rights were as
grantees from the former ruler and although it thay be that
according to the principles of international law their
rights as grantees ought not to be affected, no municipal
court has their right to enforce the obligation of the new
sovereign to respect them. For, as oitited out by
Venkatarama Iyer J., who delivered he judgment of this Court
in Dalmia Dadri Cement Co., Ltd. v. Commissioner of Income-
tax(1):
(1) [1959] S.C.R. 729, 741.
1001
"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 recognised by him
One of the decisions relied on by this Court in that case is
that of the Privy Council in Secretary of State for India v.
Bai Rajbai(1) in which they have observed
"The relation in which they stood to their native sovereign
before this cession and the legal rights they enjoyed under
them, are, save in one respect, entirely irrelevant matters.
They could not carry on under the new regime the legal
rights, if any, which they might have enjoyed under the old.
The only legal enforceable rights they could have as against
their new sovereign, were those, and only those, which that
new sovereign by agreement express or implied, or by
legislation, chose to confer upon them."
Thus, before the respondents could claim the ’benefit of s.
299(1) of the Constitution Act, 1935 they had to establish
that on November 9, 1947, or thereafter they possessed
legally enforceable rights with respect to the properties in
question as against the Dominion of India. They could
establish this only by showing that their pre-existing
rights, such .as they were, were recognized by the Dominion
of India. If they could not establish this fact, then it
must be held that they did not possess any legally
enforceable rights against the Dominion of India and,
therefore, s. 299(1) of the Constitution Act, 1935 avails
them nothing. As already stated a. 299(1) did not enlarge
anyone’s right to property but only protected the one which
a person already had. Any right to property which in its
very
(1) (1915) L. R: 42 I.A. 229.
1