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PETITIONER: PROMOD CHANDRA DEB AND OTHERS

       Vs.

RESPONDENT: THE STATE OF ORISSA AND OTHERS

DATE OF JUDGMENT: 16/10/1961

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) DAS, S.K. SARKAR, A.K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1962 AIR 1288            1962 SCR  Supl. (1) 405  CITATOR INFO :  F          1962 SC1305  (12)  RF         1963 SC 222  (11)  D          1963 SC 953  (12)  R          1964 SC1043  (19,52,56,69,70,78,117,131,137  R          1964 SC1793  (12)  D          1966 SC 704  (13)  RF         1981 SC1946  (18)

ACT:      Khor Posh Grant-Maintenance allowance granted by Ex-Ruler  of State-Merger  of  State  with  the Dominion of India-Abrogation of grant by executive action-If an  act of State-Consitutional Validity- Constitution of  India, Arts.  14, 19(1)  (f), 31- Extra  Provincial  Jurisdiction  Act,  1947(47  of 1947), ss. 3, 4, 5-Administration of Orissa States order, 1948, Para. 4(b)-States’ Merger (Governors’ Provinces) Order,  1949, ss.  3. 4,-Government  of India Act, 1935 (26 Geo. 5, ch. 2) s. 299 (1).

HEADNOTE:      The petitioners,  who were  holders  of  Khor Posh grants  from the Rulers of Talcher, Bamra and Kalahandi before  these  states  merged  with  the Dominion of  India, challenged  the constitutional validity of certain orders passed by the State 406 of Orissa  and the  Union of India annulling those grants which the Petitioners claimed were based on the law  and custom  prevailing  in  these  states relating to  maintenance of  the junior members of the Ruling  family. The  grant in  controversy  in Petition No.  79 of  1957, made  by the  Ruler  of Talcher  under   Order  31   of  the   Rules   and Regulations  of   the  State   of  Talcher,  1937, originally of  land but  converted  in  1944  into money grant,  was regularly  paid till April 1949. The grant in Petition No. 167 of 1958, made by the Ruler of  Bamra prior  to  January  1,  1948,  was

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annulled on  June 8,  1949, by  the Government  of Orissa as  the delegate of the Government of India under s.  4 of  the Extra  Provincial Jurisdiction Act 1947.  The petitioner  in Petition 168 of 1958 was the  same as  in the previous petition. He was granted an  increased allowance  by the  Ruler  of Bamra  on   December  8,   1947.  The   grant  was recognised on June 11, 1949, but paid at a reduced rate from  April 1, 1948, to July 1, 1957, and was annulled by  a statement made on June 29, 1957, by the Chief  Minister of  Orissa in Legislature. The allowance in  favour of  the first  petitioner  in Petition No.  4 of  1959; the  widow of  the  late Maharaja of  Kalahandi,  fixed  by  the  Political Department of the Government of India in 1939, and the allowance  granted to the second petitioner by the Ruler,  were paid  till they  were annulled by the aforesaid  statement of  the Chief Minister of Orissa. By  the Merger  Agreements signed  by  the Rulers on  or after December 14, 1947, Sovereignty over these  States vested in the Dominion of India before January  1, 1948,  and in  exercise of  its powers under  s.  3(2)  of  the  Extra  Provincial Jurisdiction Act,  1947, which came into effect on December  24,   1949,   the   Central   Government delegated its  powers to  the Government of Orissa to administer  the States. On January 1, 1948, the Government of  Orissa in  exercise of  its  powers under s.  4 of  that Act  made an order called the Administration of Orissa States Order, 1948, para. 4(b) of which provided, inter alia, that all prior laws, which  included Rules,  Regulations, byelaws and orders,  whether based  on  custom  or  usage, would continue  in force  until altered or amended by   an   order   under   the   Extra   Provincial Jurisdiction Act,  1947. By  s. 3  of the  States’ Merger (Governors’  Provinces) Order,  1949, which came into  effect on  August 1, 1949, these States became parts  of the Province of Orissa. Section 4 of the  Order provided that all laws in force in a merged State before that day including orders made under  ss.   3  or   4  of  the  Extra  Provincial Jurisdiction Act,  1947, would  continue in  force until repealed  modified or amended by a competent legislature or other competent authority. The case of the  petitioners was  that by  these provisions the grants  were recognised  by the  new sovereign and their  abrogation by executive action amounted to infringement 407 of fundamental  rights  guaranteed  by  Arts.  14, 19(1)(f) and  31 of the Constitution A preliminary objection was  taken on  behalf of the respondents in the  first two  Petitions that  the  grants  in question  having   been  annulled   prior  to  the Constitution, no  writs could issue thereunder and it was  urged, that in any view of the matter, the orders annulling  the grant  amounted to  acts  of state and their legality could not be canvassed in a Municipal Court. ^      Held, that  the preliminary  objection had no substance and  must fail.  Since the grants at the time they were annulled had ceased to be grants of land  and  been  converted  to  money  allowances,

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payable periodically  at regular  intervals, every periodic  deprivation  gave  the  petitioners  the right to  approach the  court and it was not until 1957 that  the protracted  correspondence  between the parties  for  the  revision  of  the  impugned orders came to an end.      The  expression  ’act  of  state’  means  the acquisition of sovereignty by a state over foreign territory  by   conquest,   treaty,   cession   or otherwise. That act may take place on a particular date or  by a gradual process but sovereign power, including  the   right  to   legislate   for   and administer the acquired territory, may be acquired before  the   merger.  No   Municipal  Court  has, however, the  power  to  judge  the  propriety  or legality of  such an act relating either to public or private  rights nor can it enforce obedience to ordinary principles  of International law relating to  rights   of  private   property  which  a  new sovereign  is   presumed  to  respect.  Individual citizens cannot  enforce such  rights even  though they may be protected by the treaty since they are no parties  to the  stipulations. It  is only when the new  sovereign recognises the Municipal Courts that they  can have  the power and jurisdiction to investigate and  ascertain only  such rights as it chooses to  recognise  either  by  legislation  or agreement or otherwise. Recognition may be express or implied  from its  dealing with  those  rights. Such recognition, however, is a matter within thee jurisdiction of the Municipal Courts, but the onus of proving it must be on the claimant.      Secretary of  State of India v. Mamachee Boye Sahaba, (1859)  M.I.A.  476,  Cook  v.  Sir  James Gordon Sprigg, [1899] A.C. 572, Secretary of State for India  v. Bai Rajbai, (1915) L.R. 42 I.A. 229, Vajesingji Joravarsingji v. Secretary of State for dia  in   Council,  (1924)   L.R.  51   I.A.  357, Dattatraya Krishna  Rao Kane v. Secretary of State for India,  (1930) L.R.  57 I.A. 318, Secretary of State v.  Saudar Rustam  Khan, (1911) L.R. 68 I.A. 109, State  of Saurashtra  v.  Memon  Haji  Ismail Hagi, [1960]  1 S.C.R.  537 and Jagannath Agarwala v. State  of Orissa, [1962] I S.C.R. 205, referred to. 408      Judged in  the  light  of  these  principles, there could be no doubt that Order 31 of the Rules and Regulations of the State of Talcher, 1937, had the effect  of law, having been continued in force by sub-para.  (b) of Para. 4 of the administration of Orissa States order 1948, in the absence of any legislation  to   the  contrary  under  the  Extra Provincial Jurisdiction  Act, 1947. The said Rules and  Regulations  were  existing  law  within  the meaning of  Art. 327  of the  constitution. It was wholly immaterial  whether the grant by the former Ruler was a legislative or an executive act.      Madharao  Phalke   v.  The  State  of  Madhya Bharat, [1961]  1 S.C.R.  957, Thakur Amar Singhji v. State  of Rajasthan,  [1955] 2  S.C.R. 303  and M/s. Dalmia  Dadri Cement  Co. v. The Commissioner of Income-tax, [1959] S.C.R. 729, relied on.      The wide  language of  sub-par. (b)  of para. (4)  of   the  Order   of  1948,   read  with  the

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Explanation, left  no manner of doubt that the new sovereign  by   that  Order   had  recognised  the Khorposh grant made to the petitioner.      It was  not correct  to say that the impugned order annulling the grant could be sustained under ss.  3(1)   and  (5)   of  the   Extra  Provincial Jurisdiction Act,  1947.  Section  3(1),  properly construed, could  not override s. 4 of the Act and an order  made thereunder by a competent authority could be  superseded only  by  another  under  the section itself.  Section 5 of the Act could not be so construed  as to  authorise the abrogation of a law continued  in force by s. 4 or an order passed thereunder   The   entire   Act   must   be   read harmoniously so  as to  give effect to each one of its provisions.  It must,  therefore, be held that the  annulment   by  executive   action  was   not justified.      It  was   not,   therefore,   necessary   for disposing of  this matter  to consider whether the petitioner was  entitled to  the protection  of s. 299(1) of the Government of India Act, 1935.      Johnstone v.  Pedlar, (1921) L.R. 2 A.C. 262, considered.      Since the  order impugned by Petition No. 167 of 1958  was made  in terms  of s.  4 of the Extra Provincial Jurisdiction  Act,  1947,  it  had  the effect of  law, and  was not open to investigation by this Court.      The right  of the  petitioner in Petition No. 168 of  1958, having  been recognised  on June 11, 1949, in modification of the grant by the Ex-Ruler and implemented,  it could  not be  abrogated by a mere executive fiat.      The orders of annulment in Petition 4 of 1959 must also  for the  same reasons  be  held  to  be unjustified. 409      Per Sarkar  and Mudholkar, JJ.-Section 299(1) of the  Government of  India Act, 1935 could be of no help to the grantee from an Ex-Ruler unless his right had  been recognised by the new sovereign so as to  enable him  to establish  the same  in  its municipal courts.  That section could only protect such rights  as the  new citizen had at the moment of his  becoming a  citizen  of  the  Dominion  of India. It  did neither enlarge his rights nor cure any infirmity in them.      State of  Gujarat v.  Jamadar Mahomed Abdulla [1962] 3 S.C.R. 970, referred to.

JUDGMENT:      ORIGINAL JURISDICTION  : Petitions Nos. 79 of 1957, 167 and 168 of 1958 and 4 of 1959.      Petition under Art. 32 of the Constitution of India for enforcement of Fundamental Rights.      A. V.  Viswanatha Sastri  and K. R. Choudhri, for the petitioner (In Petn. No. 79 of 1957).      Purushottam Trikamdas and R. Patnaik, for the Petitioners (In  Petns. Nos.  167 of  58 and  4 of 59).      N. C.  Chatterjee and  R.  Patnaik,  for  the petitioner (In Petn. No. 168 of 1958).

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    C. K.  Daphtary, Solicitor-General  of India, B.  R.   L.  Iyengar   and  T.  M.  Sen,  for  the respondents.      1961. October  16. The  Judgment of Sinha, C. J., Das and Ayyangar, JJ., was delivered by Sinha, C.J., and  the Judgment  of Sarkar  and Mudholkar, JJ., was delivered by Mudholkar, J.      SINHA, C.  J.-The Petitioners  in these  Writ Petitions, under  Art.  32  of  the  Constitution, complain of  interference with  their rights under the several  Khor Posh  grants, and pray for writs of certiorari  or mandamus  and further  orders or directions to  the respondents for the enforcement of their  alleged rights.  In Writ Petition No. 79 of 1957,  the first  respondent is  the  State  of Orissa, and  the Union  of  India  is  the  second respondent. In  all the  other Writ Petitions, the State of Orissa is the sole respondent. As most of the   questions    of   law    relating   to   the interpretation of the Constitution, or other 410 laws hereinafter  to be  referred to,  are common, the cases  have been  heard together. But in order to appreciate  the points  arising in these cases, it is  necessary to  state the  facts of each case separately.          I. Writ Petition No. 79 of 1957.      In Writ  Petition 79  of 1957, the petitioner is the  younger brother  of the  present  Raja  of Talcher, which  was an independent sovereign State before its  merger. It  was later  incorporated in the State  of Orissa.  The  Talcher  State  was  a sovereign State  of the  Rajabahadur  of  Talcher, under the  paramountcy of  the British Government, before India  attained  Independence.  As  such  a sovereign,  the   Rajah  had  absolute  powers  of disposal of the properties comprised in the State. The succession  to the  Rulership of  the State is governed by  the Mitakshara  law, according to the rule of  lineal primogeniture. The petitioner is a citizen of  India and  is the only younger brother of the  present Raja  of Talcher. The petitioner’s father, the  previous Ruler  of Talcher,  died  in 1945 and  was succeeded  by the petitioner’s elder brother, the present Raja of Talcher. According to immemorial and  long  established  custom  of  the State, as  also according  to  the  Hindu  Law  of lineal primogeniture,  the junior  members of  the family of  the Rulers,  for the  time being,  were entitled  to   and  were  provided  with  suitable maintenance, either  land or  in money,  to enable them to  maintain themselves  in  accordance  with their status as members of the Ruler’s family. The grants of  land, or  its equivalent  in money,  or partly in  land and  partly in  money, used  to be called  Khanja   or  Khor  posh  grants,  and  the grantees were known as Khanjadars or Khorposhdars. The nature and conditions of such grants have been laid down  in Order  31 of  the Rules, Regulations and Privileges  of  Khanjadars  and  Khorposhdars. Those "rules,  regulations of Talcher etc. (1937)" state the law of the State. In accordance with the law aforesaid, the Khorposh 411 grants made  by the  Ruler, for  the  time  being,

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became  the   absolute  private  property  of  the grantee, being  a male  or a  female member of the family of the grantor.      The petitioner  was born  in 1903, and in the same year  the petitioner’s  father, who  was then Ruler of  the State  of Talcher,  made a  grant in perpetuity  to   the  petitioner   of  5  villages specified in  the Schedule  to the  petition.  The said  grant   conveyed  to   the  petitioner  full proprietary rights  in the  villages aforesaid. By an  order,   dated  March   31,  1912,  the  Ruler aforesaid passed  an order  to the effect that the income  of   the  5   villages  granted   to   the petitioner, as  aforesaid,  be  collected  by  the State  Officials   and  deposited   in  the  State Treasury, and  the petitioner  should be  paid  in cash  the   equivalent  of  the  income  from  the villages aforesaid,  amounting to Rs. 5926 odd. By a subsequent  order, dated  September 8, 1929, the Ruler aforesaid  directed the  Settlement Officer, who was  in charge  of making  the records  up  to date, to  keep the aforesaid grant yielding a cash income of  Rs. 5926  odd intact,  to be enjoyed by the petitioner  "in  perpetuity  under  hereditary rights". The  Ruler of the State, after making the necessary enquiries,  directed, by his Order dated March 16, 1944, that the petitioner should be paid Rs. 6200  a year,  as a  cash allowance out of the State Treasury  in lieu  of the  income  from  the villages granted  to the petitioner, as aforesaid. Since then the petitioner was being paid regularly the allowance  at the  rate of  Rs. 500 per month, till April 1949.      Going a  little backwards, it is necessary to complete the  narrative of  events by stating that in August  1947, the  present Raja of Talcher, the petitioner’s  elder   brother,  entered   into  an agreement with  the Dominion  of India  after  its formation after  the Independence Act of 1947, and executed an Instrument of Accession, 412 which was  in the  form as  it appears in Appendix VIII at  page 169  of the  White Paper  on  Indian States. Another  agreement, in  form appearing  in Appendix IX  at page  173 of  the White paper, was also entered into between the Ruler of Talcher and the Dominion  of India.  On December  14, 1947, an agreement, called  the ’Merger  Agreement’, in the same form  as Appendix XI at page 178 of the White Paper, was  entered  into  between  the  Governor- General of  India and  the Raja  of  Talcher.  The terms and  effect of  these transactions will have to be  examined in  detail later.  On  January  1, 1948, the  State of Talcher merged in the Dominion of India  in accordance  with the Merger Agreement aforesaid. The petitioner claims that the Khorposh grant made  to him,  as aforesaid,  was fully  and unequivocally recognized  by the  State  and  that even without  such recognition  his rights  before the merger  of the  State  of  Talcher  in  Orissa remained   intact,   and   neither   the   Central Government nor the State Government could question or ignore  those rights. As the petitioner did not receive his  Khorposh allowance  due for the month of April, 1949 he entered into correspondence with

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the Government  of Orissa. In answer he received a latter,  dated   May  26,   1949,  from  the  Sub- Divisional Magistrate  of  Talcher  informing  him that the  payment of  allowance in  question could not  be   made  until  further  instructions  were received from  the  Government.  As  a  result  of further correspondent  between the  petitioner and the Government  of Orissa, the petitioner received a letter,  on June  22,  1949,  to  the  following effect:           "With reference  to your  letter No. Nil      dated  7th   June,  1949,   on  the   subject      mentioned above, I am directed to say that as      you have  extensive landed  property and  are      well off  in life,  Government of  India have      not allowed  any monthly  cash allowance. The      decision of the Government of India is 413      final  in   this   matter   and   cannot   be reconsidered." It is  this order  of  the  Government  which  the petitioner challenges  as invalid  and interfering with his  property  rights.  After  entering  into further  correspondence  with  the  Government  of India, the  petitioner received  on  September  7, 1956, a  copy of  the letter dated March 26, 1955, to the following effect:           "The Government  of  India  are  advised      that  the   alleged  grant   of   maintenance      allowance to  you by the Ruler of Talcher was      never recognized by the Govt. of India or the      State  Govt.  of  Orissa.  After  the  merger      therefore no  claim for  payment of  the said      allowance can  be enforced against either the      State Govt.  of Orissa  or the  Central Govt.      The Govt.  of India  are further advised that      even if,  according to  the law applicable to      the members  of the  ruling Family of Talcher      you had  a right  to be  maintained, that was      rights against  the Ruler of Talcher which is      not legally  enforceable against  either  the      Govt. of Orissa or the Central Govt. who have      not inherited or undertaken any obligation in      the behalf.           As regards  your contention based on the      provisions of  Articles 2 and 4 of the Merger      Agreement signed  by the  Ruler of Talcher, I      am directed to say that the Govt. of India do      not consider  that these  have the  effect of      placing an  obligation on  the Government  to      continue your allowance." The correctness  and validity of the statements of fact and  law contained in the letter aforesaid of the Government  of India  is  challenged  by  this petition on  the grounds  that Government’s  order aforesaid amount to an infringement of 414 the petitioner’s  fundamental rights  under  Arts. 19(1)(f) and  31 of  the Constitution and are also discriminatory, thus  violating  Art.  14  of  the Constitution  inasmuch   as  the   other  Khorposh grantees have  been allowed  to continue  enjoying their similar  rights. It was on these allegations that the  petitioner moved this Court and obtained the Rule.

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       II. Writ Petition No. 167 of 1958.      The petitioner  in this  case is  the younger brother of  the Raja  of what was previously known as the State of Bamra, one of the native States in Orissa. The Ruler of Bamra possessed and exercised absolute   rights-legislative,    executive    and judicial-in  his   territory,   subject   to   the paramountcy of  the British  Government. The Ruler of Bamra  also, like  the  other  ruler  similarly situated, acceded  to the  Dominion of India by an Instrument of  Accession executed  between him and the Governor-General of India on or about the 15th of August,  1947, in  terms similar  to  the  form appearing in  Appendix VII of the White Papers, at page 165. There are similar allegations, as in the previous case,  about the law and custom governing the grant of Khorposh to the members of the Ruling Family. In  accordance with  the law aforesaid and in exercise  of his  sovereign powers,  the  Ruler made the  following 4  grants  in  favour  of  the petitioner.           "1. Land Revenue hereditary grant of Rs.      10,000 per annum out of the Revenue income of      the village  Balanda and  24 others  in Bamra      State granted by the Ruler on 24-3-47.           2. Land Revenue hereditary kharposh Mafi      grant of Rs. 2,400 per year out of the income      of village  Nenei and 6 others granted by the      ruler on 15-9-45. 415           3.   Forest   grant   of   Panguli   and      Prabhasuni  reserve  forests  for  reclaiming      1500 acres granted by Ruler on 27th December,      1947.           4. Tank  at Deogarh  granted by Ruler on      22-9-47. All  these properties have been duly      recorded in Revenue registers." After the grants aforesaid had been made in favour of the  petitioner,  who  is  the  only  surviving younger brother of the Ruler, the latter executed, on the  December 30,1947,  the Agreement of Merger by which he transferred to the Dominion Government authority,  jurisdiction  and  power  for  and  in relation to the governance of Bamra State and also agreed to transfer the administration of the State on  January   1,  1948.   On  June  8,  1949,  the Government  of   Orissa,  purporting   to  act  in exercise of  its powers  under s.  4 of  the Extra Provincial Jurisdiction  Act (XLVII of 1947), read with Notification  dated March  23,  1948,  issued directions to  the effect  that  the  commitments, specified in  the Schedule  to  the  Notification, made by the Ruler of Bamra were not reasonable and bonafide  in   the  opinion   of  the   Provincial Government and were declared null and void and not binding on  them, and shall stand annulled as from the date of the said commitments and that no Court shall have  jurisdiction to call into question the validity  of   the  Order.  The  Schedule  to  the Notification aforesaid  also made reference to the grants made  in favour of the petitioner. Then the petition goes  to make  allegations as  to why the petitioner was discriminated against on grounds of political bias. The petitioner also challenged the authority of  the  Government  of  Orissa,  or  of

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Central Government,  to annul the said grants, and characterised the annulment as wholly void. As the petitioner’s memorial  and petition requesting the Orissa Government to annual their Order 416 of June  8, 1949, aforesaid had proved unavailing, as would appear from the Government’s letter dated June 26,  1957, the  petitioner had no option left but to  move this  Court. The  Orders aforesaid of the Government are challenged as null and void and ultra vires  the  powers  of  the  Government,  as violative of Arts. 19 and 31 of the Constitution.          III. Writ Petition 168 of 1958.      The petitioner  in this  case is  the same as the petitioner  in the  Writ Petition 167 of 1958. After making  allegations similar  to those in the previous petition,  he goes  on to  state that the Ruler of  the Bamra State made the following Order on December 8, 1947.                   "Bamra Darbar                       Order           As my brother Barakumar Pratap Ganga Deb      is going  to marry  soon and  as the  present      maintenance grant  will  be  insufficient  to      maintain himself and his family befitting his      status and  position, the present maintenance      grant of  Rs. 600  p. m.  is increased to Rs.      1000 (one  thousand) per  month  with  effect      from the 1st of December 1947.      8th Dec., 1947.                       Sd-B.C. Tribhuban Deb.                Raja & Ruler, Bamra State." The  petitioner   goes  on   to  state  that,  not withstanding the  protest of  the petitioner,  the increased amount  of maintenance  at Rs.  1000 per month, as  granted by the Ruler, as aforesaid, was reduced by  Mr. D.  V. Rege,  the Adviser  to  the Orissa State, by his letter dated June 11, 1949 to the following effect:-           "Dear Bara Kumar Sahib,           With the approval of Government of India      your allowance has been increased 417      from Rs. 7200 to Rs. 9600 per annum from 1-4- 1948.                                    Your sincerely,                                    Sd. D. V. Rege" This reduced  amount of maintenance at the rate of Rs. 800  per month  continued be  to paid  to  the petitioner from  April 1,  1948 till July 1, 1957. But after  the passing  of the Budget for 1957-58, during the  discussion on the Orissa Appropriation Bill (II of 1957) on June 29, 1957, the then Chief Minister  of  Orissa,  Dr.  Hare  Krishna  Mahtab, suddenly, for  political reasons, made a statement in the Assembly to the following effect:           "Government   have   decided   that   on      principles and  on grounds  of expediency all      allowances to  relatives of the Rulers should      be annulled  with effect from 1st July, 1957,      and the  fact should  be communicated  to the      Government of India, subject to the following      conditions:-           (1) The  existing allowances  should  be      continued in  respect of widowed Rajmatas and

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    other widows  subject to  a maximum  limit of      Rs. 500 per month.           (2) If,  as a  result  of  annulment  of      these allowances,  any hardship  is caused to      anybody,  he   or  she   may   represent   to      Government for  consideration of  his or  her      case  and  Government  after  proper  enquiry      about the actual conditions and income of the      representationist and  after being  satisfied      about the  genuineness of the grievance, may,      in  suitable   cases,  grant   allowances  to      anybody upto a maximum limit of Rs. 500 p.m." The  result   of  this   statement  was  that  the petitioner’s   allowance    was   annulled.    The petitioner’s memorials  and petitions to the State Government and to the 418 Central Government  authorities proved  fruitless; hence  the   writ  petition   in  respect  of  the annulment aforesaid.          IV. Writ Petition No. 4 of 1959.      The petitioners  in this  case are the mother and younger brother of the present Maharaja of the State of  Kalahandi, previously known as the State of Kalahandi,  one of the native States in Orissa. After the  death of  the late Maharaja Braja Mohan Deo of  Kalahandi in  1939 at  the age  of 43, the maintenance allowance  of Rs.  1200 per  month was fixed for  the first  petitioner by  the Political Department  of   the  Government   of  India.  She continued to  get the  allowance  even  after  the merger of the State of Kalahandi with the Province of Orissa.  The petitioner  No. 2,  as the younger brother  of   the  Ruler   of  Kalahandi   and  in accordance with  the law  and custom prevailing in that area,  was granted  by the  then  Ruler,  his brother, H.H.  Maharaja P.  K. Deo  a  maintenance allowance of  Rs. 1200 per month. After the merger of the  State in  the State  of Orissa  and on the recommendation of  Shri Rege I.C.S., a maintenance allowance of  Rs. 1000 per month was fixed for the petitioner in  consultation with the Government of India. As  a result  of the  statement made by the then Chief Minister of Orissa, dated June 28,1957, quoted above,  the petitioners  have been deprived of their  just claims to maintenance in accordance with the  law. The  petitioners’ memorials  to the State Government  and to  the authorities  of  the Central Government have produced no results; hence the Writ  Petition against  the  stopping  of  the payment of  allowances  to  the  petitioners  with effect from July 1, 1957.      In support of these petitions, three separate arguments have  been addressed  to  us,  and  have covered a  very wide field. Shri Viswanatha Sastri appeared in  support of  petition No.  79 of 1957; Shri Purshottam Trikamdass appeared in support of 419 petition No.  167 of  1958 and  No. 4 of 1959, and Shri N.  C. Chatterjee  appeared in support of the petition No.  168 of  1958. Though  the  arguments have been  overlapping and  not always consistent, the points  urged on  behalf of the petitioners in each case may be summarised as follows. The grants made by the Rulers in each case were in respect of

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the  khorposh  rights  of  the  members  of  their family, which  the  Rulers,  under  the  law  both statutory and customary, recongnised as the rights of the  junior members  of  the  family  which  is governed by  the  rule  of  Lineal  Primogeniture. Generally the  grants took  the  shape  of  landed property  but  very  often  the  usufruct  of  the property was  taken over by the State in lieu of a cash allowance.  Whether the  Khorposh grant  took the form  of land  or of  money, it  was made by a sovereign Ruler.  Every act  of the Ruler, whether executive, legislative  or judicial  in character, with  reference  to  modern  democratic  ideas  of separation of  power, has the force of law. In the hands of  the Ruler  for  the  time  being,  these distinctions did not hold good. Whatever they said or did in relation to the affairs of the State was law for  the time  being, which  the  Ruler  could abrogate  or  modify  according  to  his  absolute power. But  after the disappearance of the Rulers’ sovereign powers, the succeeding power, whether it was the  Government of  India or the Province, and later the  State of  Orissa, was  not competent to abrogate the  orders granting  maintenance to  the junior members of the family, according to the law of the  land, without recourse to legislation by a competent body.  In this  connection reliance  was placed on the decisions in the case of Director of Endowments, Government  of Hyderabad  v. Akram Ali and  Madhaorao  Phalke  v.  The  State  of  Madhya Bharat. Hence  the Government  of India had to get the Parliament  to make the necessary legislation, if it intended to do away with the rights 420 to Khorposh  created by the previous Rulers of the States concerned. It was also contended that there was no  entry either  in List I or in List III, of the  Constitution,   which  could   authorise  the Central Legislature to make a law abrogating those grants. It  was further  contended that in respect of some  of the grants at least, the Government of India had  recognised the  rights of  the grantees and had  been making payments through the State of Orissa, in  pursuance of  those recognised rights. In the  case of  the petitioners  in Writ Petition 168 of  1958 and  4 of 1959, it was further argued that the  payments had  been made  to the grantees until June  1957. It  was only in July, 1957, that the payments  were stopped arbitrarily as a result of the  statement made  by the  Chief Minister  of Orissa, as stated above.      The learned  Solicitor General,  who appeared on behalf  of  the  respondents,  first  raised  a preliminary objection in respect of the first case (Writ Petition  79 of  1957) relating to the grant by the  Ruler of  Talcher. His contention was that it was  the admitted  case of the parties that the payment to  the petitioner  was stopped  in April, 1949, and  the  petitioner  was  informed  by  the Government’s order  dated June  22, 1949  that the Government’s decision  to  stop  the  payment  was final and  could not  be reconsidered.  That being so, the  rights  guaranteed  by  the  Constitution could not  be founded  upon, in respect of a cause of action  which  arose  before  the  Constitution

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could not  be founded  upon, in respect of a cause of action  which arose before the Constitution. In the second case, namely Writ Petition 167 of 1958, the right,  if any,  has  been  abrogated  by  the Government’s  Notification  dated  June  8,  1949, hence in this case also the preliminary objection, if it has any force, applies. The other arguments, of the  Solicitor General,  which apply to all the cases, were  to the effect that the grant, if any, was  not   grant  of   land  but  of  money,  any, therefore, was  not grant  of land  but of  money, and,  therefore,  was  not  a  grant  properly  so called; that there may 421 have been a law relating to the making of Khorposh grants to  junior members  of the  family  of  the Rulers   governed    by   the   Rule   of   Lineal Primogeniture,  but   the  act   of  making   each individual   grant    could   not    properly   be characterised, as  enacting a  law; it  could,  at best, be an order in exercise of the powers of the Ruler  giving  effect  to  the  law  in  question. Alternatively, it  was argued  that whether or not the making  of a  grant was  enacting a  law,  and whatever its  nature, it could be abrogated by the succeeding sovereign  power, without  recourse  to legislation. It was further argued that the matter in controversy would be governed by the provisions of the Extra Provincial Jurisdiction Act (XLVII of 1947), which came into effect on December 24,1947. Reliance was  placed upon  s. 3  of the  Act which lays down that it "shall be lawful for the Central Government   to    exercise    extra    provincial jurisdiction in  such manner as it thinks fit". It was pointed  out that  under sub. s.(2) of s. 3 of the  Act,   the  Central   Government   had   been authorised to  delegate its jurisdiction, and this power the  Government exercised  in favour  of the Provincial Government  of Orissa,  The terms of s. 4(1) to the effect that the Central Government may make such  order as  may seem  to it expedient for the effective  exercise of  its jurisdiction under the Act,  were also  relied upon  as the source of the  authority   for   cancelling   the   Khorposh allowance in favour of the petitioners made by the ex-Rulers. It  was further  contended that s. 5 of the Act  validated  the  impugned  orders  of  the Government, and  whether or  not they  were legal, thay "shall  be valid  as if  they had  been  done according to  the local  law then in force in that area". And  lastly, it was urged that, in any view of  the   matter,  the   orders  impugned  by  the petitioners in these cases were acts of State, the legality of  which could  not be  canvassed  in  a Municipal Court. 422      Before dealing  with  the  arguments  on  the merits of  the controversy, it is convenient first to deal with the preliminary objection raised with reference to the first two petitions, on behalf of the respondents,  to the  effect that  the  orders passed  before  the  coming  into  effect  of  the Constitution could  not be  challenged in  a  writ petition  because  no  writ  could  be  issued  in respect of  orders passed  before the Constitution

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came into  force. If  the grants were in the shape of land,  and if  the Government  had deprived the petitioners of  those lands,  it could  have  been argued  with   a  good  deal  of  force  that  the dispossession from  the lands took place at a time when the  Constitution was  not in  force. But  it appears that  in these cases the grants ultimately assumed the  shape of  money allowances payable at regular  intervals.   They   were   to   be   paid periodically. Hence, every periodic deprivation of the money  allowance would  give the petitioners a right  to  approach  this  Court  for  relief.  It appears from the pleadings of the parties that the petitioners entered  into prolonged correspondence insisting upon  their rights  under the  grants by the former  Rulers and  trying to impress upon the Government the  justness of  their demands. It was only in  1957 that  the petitioners  realised that they  had   no  hopes   of  any  revision  by  the Government of the policy which they had adopted of cancelling   those   grants.   In   our   opinion, therefore, the  preliminary objection  has  to  be overruled.      In order  to determine the controversy on its merits, it  is necessary  to trace  the history of the  relationship   between  the  Rulers  and  the Government  of   India  before   the   territories concerned became a part of the territory of India. During the  British  regime,  the  Rulers  of  the Indian States  (then called native States) enjoyed certain amount of sovereign powers, which were not uniform. The extent of their sovereignty under the suzerainty or the 423 paramount  authority  of  the  British  Government depended upon the several agreements between them. The position  is thus described in the White Paper on Indian States (page 32, para 71):           "Till  the  lapse  of  Paramountcy,  the      Crown as represented by and operating through      the Political  authorities provided the nexus      between the Indian States and the Central and      Provincial Governments.  The  pivot  of  this      arrangement was  the Viceroy,  who  as  Crown      Representative  represented   to  the  Indian      States the  suzerainty of  the British  Crown      while at the same time he was, in relation to      British India,  the head of the Government as      Governor-General.  The   Indian  Independence      Act, 1947, released the States from all their      obligations to the Crown". After  the   coming  into  effect  of  the  Indian Independence Act  and  the  establishment  of  the Indian  Dominion,   as  a  result  of  negotiation between the  Dominion  of  India  and  the  Indian States,  certain  steps  were  taken  towards  the integration of  those States with India. The first step  was   the  accession   of  these  States  in accordance  with  the  Instruments  of  Accession, which appear  in Appendices  VII and VIII at pages 165 to  173 of the White Paper. As a result of the accession, the  three States with which we are now concerned-the  States   of  Talcher,   Bamra   and Kalahandi-acceded to  the Dominion  of India "with the intent  that the Governor-General of India the

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Dominion, Legislature,  the Federal  Court and any other  Dominion   authority  established  for  the purposes of  the Dominion shall, by virtue of this Instrument of  Accession but subject always to the terms thereof,  and for  the purposes  only of the Dominion,   exercise    in   relation    to    the States...such functions  as may  be vested in them by or  under the Government of India Act, 1935, as in force  in the Dominion of India on the 15th day of August, 424 1947".  This   accession  did   not   affect   the continuance  of  the  sovereignty  of  the  Rulers entering into  the agreement,  save as provided by or under the Instrument of Accession. It, however, provided that  in respect  of such  matters as are specified  in   the  Schedule   annexed   to   the Instrument, which  may be  compendiously described as "Defence, External Affairs and Communications", the Dominion Legislature may make laws which shall apply to  the acceding  States  also.  It  is  not necessary to  notice the  difference  between  the Instrument of  Accession as  contained in Appendix VII and  that contained  in Appendix  VIII for the purposes of  these cases.  The second step was the signing  of   what  has  been  termed  "Standstill Agreement", the  form of which appears in Appendix IX  at  pages  173-74  of  the  White  Paper.  The acceding States signed this "Standstill Agreement" which provided  for the  continuance for  the time being   of    all   subsisting    agreements   and administrative arrangements  in matters  of common concern between  the States  and the  Dominion  of India.  The   first  phase   of  the   process  of integration of  the Indian  States into the Indian Dominion  was  the  accession  of  the  States  as aforesaid. The second phase followed on the merger of these  States into  the Dominion  of India as a result  of   the  ’Merger   Agreement’,  in  terms appearing in  Appendix XI  at pages 178-179 of the White Paper. In December 1947, these States merged with the  Dominion  of  India  by  virtue  of  the Agreements of Merger, whereby the States ceded "to the  Dominion   Government  full   and   exclusive authority, jurisdiction  and  powers  for  and  in relation to  the  governance  of  the  States  and agreed to transfer the administration of the State to the  Dominion Government  on  the  1st  day  of January  1948".   As  a   result  of   the  Merger Agreement’ signed by the Rulers of these States on or after  the 14th  of December,  1947, but before the 1st of January, 425 1948,  the  Dominion  of  India  was  vested  with sovereign authority  and the  ex-Rulers were  left only with  their private property and their annual Privy   Purse. As  these States  which merged with the domination  of India,  as aforesaid,  did  not become part of the Province of Orissa until a much later date, it became necessary to provide for the administration of  these States.  Thus  came  into existence the  Act, called  the  Extra  Provincial Jurisdiction     Act  (XLVII  of  1947).  The  Act authorised the  Central Government,  by itself  or through its delegate, to exercise extra provincial

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jurisdiction  in   respect  of   areas  outside  a Province,  which  were  acquired  by  the  Central Government by  treaty,  agreement,  grant,  usage, etc., as  recited in  the Preamble  to the Act. In pursuance of  the  powers  given  to  the  Central Government under  s. 3(2) of this Act, the Central Government delegated  its power  to the Government of Orissa  to administer the territories which had acceded, as  aforesaid, including the three States with which  we are  now concerned.  This state  of affairs continued  until the coming into effect of the States’  Merger (Governors’  Provinces) Order, 1949, which  came into  effect  on  the  first  of August, 1949. Section 3 of the Order provides that as from the appointed day, namely, August 1, 1949, the States  in question  shall be  administered in all  respects  as  if  they  formed  part  of  the Province of  Orissa. Section  4 provides  that all laws in  force in  a merged State before that day, including orders  made under  s. 3  or s. 4 of the Extra Provincial  Jurisdiction  Act,  1947,  shall continue in  force  until  repealed,  modified  or amended  by   a  competent  legislature  or  other competent authority.  Hence, any  orders passed by the  Central   Government  or  its  delegate,  the Government of  Orissa, under  Act XLVII  of  1947, shall have  the effect  of law,  even though until the 1st of August, 1949, these States did not form part of the Province of Orissa. It 426 will, thus,  appear that the sovereignty, whatever it was,  of the  Rulers of  the States in question ceased on the execution of the Merger Agreement on or after  the 14th  of December,  1947, and before the 1st  of January,  1948. Thereafter, on the 1st of January,  1948, the sovereignty in those States vested in  the Central  Government. The  question, therefore, arises:  How far the Central Government of its  delegate, the  Government of orissa, until the merger  of the  territories in the Province of Orissa, as  aforesaid,  were  bound  by  the  laws prevailing in  those States  during the  regime of the Rulers, who had gone out.      It has  been strenuously  argued on behalf of the respondents that the acts complained of by the petitioners were  acts of State, into the legality of which  the Municipal Courts had no jurisdiction to examine.  The question of the nature and effect of what  are characterised  as acts  of State  has been discussed in a number of cases, which went up to the  Privy Council,  and later  in cases  which came  up  to  this  Court.  In  the  case  of  the Secretary of  State  of  India  v.  Kamachee  Boye Sahaba,  their  Lordships  of  the  Privy  Council stated the law in these terms:           "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 may make".      In  that   case,  the  Raja  of  Tanjore,  an independent sovereign  Chief, who,  by  virtue  of Treaties, was  under the  protection of  the  East India Company,  died without  leaving male  issue.

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Thereupon the  East India  Company, in exercise of their sovereign 427 power, seized  the Raj  of Tanjore  on the  ground that the  dignity of the Raj was at Stake for want of male  heir. It  was held  by the  Privy Council that as  the  seizure  was  made  by  the  British Government, acting  as a  sovereign power, through its delegate the East India Company, it was an act of State,  and that,  therefore, a Municipal Court had no  jurisdiction to  enquire into the property or legality  of the  transaction. In the course of the  judgment,  Lord  Kingsdown  further  observed "that  acts   done  in   the  execution  of  these sovereign powers  were not  subject to the control of the  Municipal Courts, either of India or Great Britain, was sufficiently established by the cases of the  Nabob of  Arcot v. The East India Company, in the  Court of  Chancery, in  the year 1793; and The East  India Company  v. Syed  Ally, before the Privy Council  in 1827". In that case, an argument was advanced  before the  Privy Council,  that the seizure of the Raj might be justified as an act of State, but  the seizure of the private property of the Raja  was not  so justifiable. In dealing with that  argument,   their  Lordships  of  the  Privy Council  made   the  following   very  significant observations:           "But then,  it is  contended, that there      is  a  distinction  between  the  public  and      private property  of a  Hindoo Sovereign, and      that although  during his  life, if  he be an      absolute  Monarch,  he  may  dispose  of  all      alike, yet  on his death some portions of his      property, termed  his private  property, will      go to one set of heirs, and the Raj with that      portion  of  the  property  which  is  called      public, will go to the succeeding Rajah.           It is very probable that this may be so;      the general  rule of  Hindoo  inheritance  is      partibility, the  succession of  one heir, as      in the  case of  a Raj, is the exception. But      assuming 428      this, if  the Company,  in  the  exercise  of      their Sovereign  power, have  thought fit  to      seize the  whole property  of the late Rajah,      private  as   well  as   public,  does   that      circumstance give any jurisdiction over their      acts to  the Court  at Madras?  If the  Court      cannot enquire  into the  acts at all because      it is  in act  of State,  how can  it inquire      into any  part of it, or afford relief on the      ground that  the  Sovereign  power  had  been      exercised to  an extent  which Municipal  law      will not sanction?". This decision of the Privy Council was followed in the case  of Cook v. Sir James Gordon Sprigg. That was a case in which the appellant claimed right to certain concessions relating to minerals, forests, trading  and   other  rights,   etc.,  in  Eastern Pondoland, granted  to them by the paramount chief of Pondoland.  The suit  was successfully defended on the  ground that  the grant  did not  bind  the Imperial or  the Colonial  British  Government  to

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recognise   the   said   concessions.   The   Lord Chancellor,  delivering   the  judgment   of   the Judicial  Committee,   observed  as  follows,  and almost adopted the language of Lord Kingsdown:           "The taking  possession by  Her Majesty,      whether by  cession or  by any other means by      which sovereignty can be acquired, was an act      of  State   and   treating   Sigcau   as   an      independent  Sovereign-which  the  appellants      are compelled  to do  in deriving  title from      him. It  is a  well established  principle of      law  that  the  transactions  of  independent      States between  each other  are  governed  by      other laws  than those which municipal courts      administer.           It is  no answer  to  say  that  by  the      ordinary  principles   of  international  law      private  property   is   respected   by   the      sovereign  which   accepts  the  cession  and      assumes the duties 429      and legal obligations of the former sovereign      with respect  to such private property within      the ceded territory. All that can be properly      meant by such a proposition is that according      to the well understood rules of international      law a  change of sovereignty by cession ought      not  to   affect  private  property,  but  no      municipal tribunal  has authority  to enforce      such an obligation."      A  similar   question  arose   before   their Lordships of  the Privy  Council in  a  case  from India, reported as Secretary of State for India v. Bai Rajbai.  In that case, the plaintiffs sued for a declaration  of their rights to certain property and they  questioned the  orders of the Government of  Bombay   to  the   effect  that  they  had  no indefeasible rights  in the property as claimed by them. The  property was situate in the District of Ahmedabad, which  was ceded  by the Gaekwar to the British  Government   in  the   year   1817.   The plaintiffs (respondents  before the Privy Council) claimed the  title to the property in the right of a grantee from the Mogul Emperors. While examining the question  as to what was the precise relations in which  the  respondents  stood  to  the  Bombay Government  at   the  time   of  cession   of  the territory, as  aforesaid, and  as to what were the legal rights  enforceable in  the tribunals of the new sovereign,  their Lordships  stated the  legal position as follows:           "The relation  in which  they  stood  to      their native  sovereigns before this cession,      and the legal rights they enjoyed under them,      are, save in one respect, entirely irrelevant      matters. They  could not  carry in  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 430      expressed  or  implied,  or  by  legislation,      chose to  confer upon  them. Of  course  this

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    implied  agreement   might   be   proved   by      circumstantial evidence,  such as the mode of      dealing with  them which  the  new  sovereign      adopted, his recognition of their old rights,      and express  or implied  election to  respect      them and be bound by them, and it is only for      the purpose  of determining  whether  and  to      what extent  the new sovereign has recognised      those anti-cession  rights of  the  kasbatis,      and has  elected or  agreed to  be  bound  by      them,   that   the   consideration   of   the      existence, nature,  or extent of these rights      becomes a  relevant subject  for  inquiry  in      this   case.    This   principle    is   well      established, though  it   scarcely  seems  to      have been  kept steadily in view in the lower      Courts  in  the  present  case.  It  is  only      necessary to  refer to two authorities on the      point, namely, the case of Secretary of State      for India v. Kamachee Boye Sahaba, decided in      the year 1859, and Cook v. Sprigg, decided in      the year 1899." Their Lordships also observed that in deciding the question as  to whether  or not the new Government had recognised the pre-existing rights and, if so, to what  extent, the  burden of  proof rested upon those who made such claims.      In a later decision of the Judicial Committee of the  Privy Council  in the  case of  Vajesingji Joravarsingji v.  Secretary of  State for India in Council, the  questions as  to the significance of ’act of  State’  and  as  to  the  rights  of  the inhabitants of  the territory  after it  has  been acquired by  a new sovereign, whether by conquest, treaty or  otherwise have  been discussed  by Lord Dunedin. In  the course  of  his  judgment,  after referring to the previous 431 authorities bearing  on the questions, he made the following observations,  which put,  in a nutshell the entire legal position.           "But a  summary of  the matter  is this:      when a  territory is  acquired by a 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  the      municipal  Courts   established  by  the  new      sovereign only  such rights as that sovereign      has, through  his officers,  recognised. Such      rights  as   he  had   under  the   rules  of      predecessors avail  him  nothing.  Nay  more,      even  if   in  a  treaty  of  cession  it  is      stipulated that  certain inhabitiants  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. This is made quite clear      by Lord  Atkinson when,  citing the Pongoland      case of  Cook v. Sprigg he says: "It was held

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    that the  annexation of territory made an act      of state  and  that  any  obligation  assured      under the treaty with the ceding state either      to the  sovereign or  the individuals  is not      one which  municipal Courts are authorised to      enforce." In that  case the Privy Council was called upon to determine  the   rights  of   the  plaintiffs   as Taluqdars in  respect of land in the Panch Mahals, which were in the domain of the Scindia of Gwaloor until December 12, 1860, when the Ruler ceded that territory to  the British  Government by a treaty. The paintiffs  in that  case  claimed  proprietary rights in  the Taluqs,  whereas the  Secretary  of State for India, who was 432 the contesting respondent, asserted that they were ordinary  lessees   holding  their  lands  at  the pleasure of  the Government.  In that  case it had been argued before the Judicial Committee that the plea of  act of State not having been specifically taken in  the Courts  below, that  plea should not have been  given effect  to. This argument was met by their  Lord  ships  of  the  Privy  Council  by observing that  no such  specific plea  using  the words ’act of State’ was necessary inasmuch as the plaintiffs themselves  had admitted  in the plaint that the  territory had been ceded by the previous Ruler, the  Scindia of  Gwalior,  to  the  British Government. The  plaintiff had  the onus  cast  on them of  showing the  acts  of  acknowledgment  of their rights,  which  they  claimed,  by  the  new sovereign. Another  argument raised  on behalf  of the paintiffs was that rights as proprietors still subsisted.  On   this  part  of  the  case,  their Lordships observed  that such  a general statement in a  proclamation only  means this  that the  new government will  recognised such  rights  as  upon investigation  by  its  officers  it  found  those rights substantiated.  The new  Government had not thereby renounced its right to recognise only such titles  as   it  considered   fit  and  proper  to recognise,  and  the  Municipal  Courts  were  not thereby  empowered   to  investigate   the  rights claimed.      Where territory  has been  annexed to  a  new sovereign  by   treaty,   conquest,   cession   or otherwise, the position in law is clear. But where there is no complete cession of territory but only the  grant  of  prover  and  jurisdiction  whereby sovereign  authority  is  vested  and  in  another State, the  question has arisen whether the latter State has  the right to legislate on matters which are already  governed by  law promulgated  by  the State in which the territory still remains vested. That question was raised in the case of 433 Dattatraya Krishna  Rao Kane v. Secretary of State for India.  The case  related to  what is known as the Berar,  now  forming  part  of  the  State  of Maharashtra. By  the treaty  of 1853,  H.  H.  The Nizam of  Hydrabad had  assigned  to  the  British Government the  districts collectively  called the Berar, in lieu of certain expenses relating to the army, etc.  As a  result of the arrangement, H. H.

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the Nizam  leased in  perpetuity  to  the  British Government that  territory. The  territory  formed the subject  matter of subsequent treaties in 1860 and  1920,   whereby  full  sovereignty  over  the assigned districts was reaffirmed in favour of the British Government.  The British Government was to continue to  have full  and exclusive jurisdiction and authority  over the assigned districts and the power to administer them as the British Government thought  fit  and  proper.  In  pursuance  of  the Foreign Jurisdiction  Act, 1890  (53 & 54 Vict. c. 57)  an   Order  in   Council  was  made  in  1902 authorising  the   Governor-General  of  India  in Council to  deal with those territories, on behalf of His  Majesty. In  pursuance of  that power, the impugned law (The Berar Alienated Villages Tenancy Law, 1921)  was enacted  in 1921  it was  held  by their  Lordships   of   the   Judicial   Committee repelling  the  appellant’s  contention  that  the enactment of  1921 was ultra vires that the Law of 1921,  aforesaid,  promulgated  by  the  Governor- General  in   Council,  was   a  valid   piece  of legislation and  was effective  to interfere  with pre-existing rights.      The still  later decision  of their Lordships of the Judicial Committee in the case of Secretary of State  v.  Sardar  Rustam  Khan  is  also  very instructive in  so far  as it  reviewed the  older decisions and  reiterated the law as summarised by Lord Dunedin  in the  decision just noticed in the case of  Vajesingji Joravarsingji  v. Secretary of State.  In   that  case  their  Lordships  had  to consider the  effect of the Treaty of 1903 between the Khan of Kalat and the 434 Government of  India whereby  the former  ceded in perpetuity to  the latter, in consideration of the payment of an annual rent, a certain territory. It was held  that the  transaction was,  in  fact,  a perpetual lease  of the  territory at  a quit rent and that  the territory itself did not become part of the British Dominions, though the Khan of Kalat had made  over the  whole of his sovereign rights. In this case, their Lordships had also to consider the  effect  of  the  provisions  of  the  Foreign Jurisdiction Act,  1890 (53  & 54  Vict.  c.  37). Their Lordships  held that by virtue of the Treaty and the  provisions of  the  Foreign  Jurisdiction Act, the  Government of  India had  acquired  full sovereign rights  and had, therefore, the right to recognise or  not to  recognise existing titles to land, thus  completely ousting the jurisdiction of the  Municipal   Courts  to   investigate  and  to pronounce upon claims to those rights.      The decisions  referred to  above  have  been noticed with  approval by  this Court in the cases of Thakur Amar Singhji v. State of Rajasthan, M/s. Dalmia Dadri  Cement Co.  v. The  Commissioner  of Income-tax, The  State of Saurashtra v. Memon Haji Ismail Haji  and in Jagannath Agarwala v. State of Orissa.      On  an   examination   of   the   authorities discussed or  referred  to  above,  the  following propositions emerge.  (1) ’Act  of State’  is  the taking over  of sovereign  powers by  a  State  in

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respect of  territory which  was not  till then  a part of  its territory, either by conquest, treaty or cession,  or otherwise, and may be said to have taken place  on a  particular date,  if there is a proclamation or  other public  declaration of such taking  over.   (2)  But   the  taking  over  full sovereign powers  may be  spread over  a number of years, as  a result  of a  historical process. (3) Sovereign power, including the right to legislate 435 for that  territory and  to administer  it, may be acquired without  the territory  itself merging in the new  State, as  illustrated  in  the  case  of Dattatraya Krishna  Rao Kane v. Secretary of State for India  in Council. (4) Where the territory has not become  a part  of  the  State  the  necessary authority  to   legislate  in   respect  of   that territory may  be obtained by a legislation of the nature of  Foreign Jurisdiction  Act.(5) As an act of  State   derives  its   authority  not  from  a municipal law  but from ultra-legal or supra-legal means, Municipal  Courts have  no power to examine the propriety  or legality  of an  act which comes within the  ambit of  ’act of  State’. (6) Whether the act of State has reference to public rights or to private rights, the result is the same, namely, that it  is beyond  the jurisdiction  of Municipal Courts to investigate the rights and wrongs of the transaction and  to pronounce upon them and, that, therefore,  such   a  Court   cannot  enforce  its decisions, if  any. It may be that the presumption is  that   the  pre-existing  laws  of  the  newly acquired territory continue, and that according to ordinary principles  of International  Law private property of  the citizens  is respected by the new sovereign,   but    Municipal   Courts   have   no jurisdiction   to   enforce   such   international obligations.  (7)  Similarly,  by  virtue  of  the treaty  by   which  the  new  territory  has  been acquired it may have been stipulated that the pre- cession  rights   of  old   inhabitants  shall  be respected,  but   such  stipulations   cannot   be enforced by  individual citizens  because they are no  parties   to  those   stipulations.  (8)   The Municipal Courts  recognised by  the new sovereign have the power and the jurisdiction to investigate and  ascertain   only  such   rights  as  the  new sovereign has  chosen to  recognise or acknowledge by legislation,  agreement or  otherwise. (9) Such an agreement  or recognition may be either express or may be implied from circumstances and 436 evidence appearing  from the  mode of dealing with those rights  by the  new  sovereign.  Hence,  the Municipal Courts have the jurisdiction to find out whether  the   new  sovereign   has  or   has  not recognised or acknowledged the rights in question, either expressly  or by implication, as aforesaid. (10) In any controversy as to the existence of the right  claimed  against  the  new  sovereign,  the burden of  proof lies on the claimant to establish that  the   new  sovereign   had   recognised   or acknowledged the right in question.      Applying those  principles  to  each  of  the cases in  hand, the  position  appears  to  be  as

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follows. In  Writ Petition 79 of 1957, the Talcher State merged in the territory of India with effect from January,  1, 1948.  Whatever rights  the  ex- Ruler of  Talcher  may  have  conferred  upon  the petitioner, those rights could be enforced against the respondents  only in  so far as they have been recognised or  acknowledged by  the new sovereign, the Government  of India,  the question  therefore arises  whether   the  rights   claimed   by   the petitioner in this case had been recognised by the Government of  India by  legislation or otherwise. It has  already been  observed that  the State  of Talcher become  part of  the  territory  of  India certainly with  effect from  the first of January, 1948, as  a result  of the  Merger  Agreement,  as aforesaid. There  is also  no doubt that the grant made by  the ruler  of Talcher  in favour  of  the petitioner continued  to be  effective  until  the Merger. The nature and conditions of such grant of Khorposh are  governed by  the provisions  of  the laws of  that State as embodied in order 31 of the "Rules and  Regulations of  Talcher, 1937".  Under the laws  of  Talcher,  the  petitioner  had  been enjoying his Khorposh rights until the cash grant, as it  became converted  in 1943-44  as aforesaid, was stopped  by the  State of  Orissa,  in  April, 1949.  On   the  first   of  January,   1948,  the petitioner became a subject of the 437 Dominion of India, on his territory merging in the territory of  India. It  has been argued on behalf of the  petitioner by  Shri Viswanatha Sastri that as from  the Ist  of January, 1948, on the merger, there was  a complete  change over  of sovereignty and the  Dominion of  India got full and exclusive authority, jurisdiction  and power  in relation to the erstwhile territory of Talcher State; and that as soon  as that happened, the Constitution Act of India then  in force (Government of India Act 1935 as amended  by the Indian Independence Act) became applicable to  the inhabitants  of  Talcher  also. That being  so, they  also became  entitled to the benefit of  s. 299(1)  of the  Constitution Act of 1935,  which   reads  that  "no  person  shall  be deprived of  his property  save  by  authority  of law". He  relied upon the decision of the House of Lords in  the case of Johnstone v. Pedlar in which the plaintiff’s  claim for  damages brought  by  a friendly alien,  resident in  the  United  Kingdom against an  officer of  the Crown  in  respect  of wrongful seizure and detention of his property was decreed. It  was further held that the defendant’s plea  that  the  property  had  been  detained  by direction of  the Crown as an act of State was not a  good  defence  to  the  action.  In  that  case Viscount Cave  stated the  proposition of  law and his opinion on that proposition in these words:-           "My Lords,  counsel  for  the  appellant      contended for  the  broad  proposition  that,      where  the  personal  property  of  an  alien      friend resident in this country is seized and      detained by  an officer of the Crown, and his      act is  adopted and  ratified by the Crown as      an act  of State,  the alien is without legal      remedy. In my opinion this proposition cannot

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    be sustained.           When a wrong has been done by the King’s      officer to  a  British  subject,  the  person      wronged has no legal remedy against the 438      Sovereign, for  ’the King  can do  no wrong’;      but he  may sue  the King’s  officers for the      tortious act, and the latter cannot plead the      authority of  the Sovereign,  for  "from  the      maxim  that  the  King  cannot  do  wrong  it      follows, as a necessary consequence, that the      King cannot authorize wrong". In the  course of  his Judgment  in that case Lord Atkinson  made  the  following  observations  with reference to  the decision of Lord Halsbury in the case of Cook v. Sprigg.           "The  last   words  of  Lord  Halsbury’s      judgment clearly  suggest that the Government      of this  country cannot  assert as  a defence      against one of their own subjects that an act      done to  the letter’s  injury was  an act  of      State, since such a subject clearly could not      rely on his own sovereign bringing diplomatic      pressure  against   himself  to   right   the      subject’s  wrong.  In  conformity  with  this      principle it  was held  in  Walker  v.  Baird      ((1892)A.C.491) that where the plaintiffs are      British subject  in an  action  for  trespass      committed within British territory in time of      peace it  is no  answer that the trespass was      an  act   of  State,  and  that  thereby  the      jurisidiction of  the  Municipal  Courts  was      ousted". Lord  Sumner,   in  the  course  of  his  opinion, referred to  the argument  based upon  the case of Buron v. Denman that the executive has, as against aliens, a  general right  to commit  by its agents what would  be  an  actionable  wrong  in  private persons. With  reference to  that  argument,  Lord Sumner made the following observations:           "My   Lords,    the    speculation    is      interesting but, as I think, fallacius. Buron      v. Denman (2 Ex. 167) is a case rather of the      inability of the Court than of the disability      of the suitor. 439      Municipal  Courts   do  not   take  it   upon      themselves to  review the  dealings of  State      with state  or of  Sovereign with  Sovereign.      They do  not control  the acts  of a  foreign      State done  within its  own territory, in the      execution  of   sovereign  powers  so  as  to      criticise their  legality or to require their      jastification...". Lord Phillimore,  in the  course of  his  opinion, while dealing  with the  defence  set  up  by  the official  of   the  Crown,   made  the   following observations:           "The defence  set up in the present case      is sometimes  called the defence of an act of      State. As  regards this way of looking at it,      I  cannot  put  the  matter  better  or  more      tersely than  as I found it put in one of the      reasons given by the successful plaintiffs in      their case  as respondents  before the  Privy

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    Council in  Walker v. Baird ((1892) A.C. 491,      494): "Because between Her Majesty and one of      her subjects there can be no such thing as an      act  of  State".  And  this  proposition  was      finally accepted  in the  case of  Walker  v.      Baird". Lord Phillimore,  after  discussing  a  number  of authorities and  the  propositions  laid  down  by them, concluded his opinion in these words:-           "From these  propositions it  would seem      to follow  that an alien ami complaining of a      tort  is  in  the  position  of  an  ordinary      subject, and  that no  more against  him than      against any  other subject, can it be pleaded      that the wrong complained of was, if a wrong,      done by  command of  the King  or was  a  so-      called act of State."      Relying upon  those observations, the learned counsel for the petitioner contended, in the first instance, that  when the  Government of  India, or its delegate the Government of Orissa, deprived 440 the  petitioner  of  his  allowance  in  1949,  as aforesaid,   it   infringed   the   constitutional guarantee  contained   in  s.   299  (1)   of  the Constitution Act  of 1935,  and that  the reliance upon act  of State  by  way  of  defence  was  not tenable  because,   it  was  further  argued,  the sovereign cannot  exercise an act of State against his own  subject. The  argument is  very plausible and attractive,  but we need not pronounce upon it in view  of  our  conclusion,  as  will  presently appear, with reference to his alternative argument based upon  recognition. The  argument is that the inhabitants of  a  territory  acquired  by  a  new sovereign by  conquest, cession  or otherwise  can make good  in the  municipal courts such rights as have been recognised by the new sovereign. In this connection,   reliance   was   placed   upon   the provisions of  sub-para (b)  of paragraph 4 of the Administration of Orissa States Order, 1948 (which we shall for the sake of brevity call the Order of 1948). It  has to  be recalled  that on the Ist of January 1948,  the Government  of Orissa  made the Order  of   1948.  This  order  was  made  by  the Government of  Orissa in  exercise of  the  powers conferred  by   s.  4   of  the  Extra  Provincial Jurisdiction Act,  1947,  as  a  delegate  of  the Government of  India. Paragraph  4 of the Order of 1948 reads as follows:-           "4.   Laws   to   be   applied-(a)   The      enactments specified  in the  first column of      the Schedule  hereto annexed shall, so far as      circumstances  admit   and  subject   to  any      amendments to  which the  enactments are  for      the time  being  generally  subject,  in  the      territories to  which they  extend, apply  to      all Orissa  States and  any provision  of any      law  in   force,   whether   substantive   or      procedural and  whether based  on custom  and      usage  or  statues,  in  any  of  the  Orissa      States, which  is repugnant  to any provision      of any  of the  said enactments shall, to the      extent of the 441

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    repugnancy, cease  to effect from the date of      commencement of this Order:           Provided that  the further modifications      and  restrictions   set  forth  in  the  said      Schedule shall  be  made  in  the  enactments      applied:           Provided further that for the purpose of      facilitating  the  application  of  the  said      enactments any  court having  jurisdiction in      the Orissa States may construe the provisions      thereof  and  notifications,  orders,  rules,      regulations, forms or bye-laws made or issued      thereunder,   with    such   alteration   not      affecting the  substance as  may be necessary      or proper  to adopt them to the matter before      the Court:           Provided further  that in the enactments      as to  applied (except  where the  context or      modifications   hereinbefore    referred   to      otherwise  require),  reference  to  "British      India"  and  "Central  Government"  shall  be      construed as references to "all the provinces      of  India   and  Orissa   States"  and   "the      Provincial Government" respectively.           (b) As  respects to  those matters which      are not  covered by the enactments applied to      the Orissa  States under  sub-paragraph  (a),      all laws in force in any of the orissa States      prior to  the  commencement  of  this  Order,      whether substantive or procedural and whether      based on custom and usage of statutes, shall,      subject to  the  provisions  of  this  Order,      continue to  remain in force until altered or      amended  by   an  order   under  the   Extra-      Provincial Jurisdiction  Act, 1947  (XLVII of      1947).           Provided  that   the  powers  that  were      exercised by  the Ruler  of each  such  State      under 442      any of  those laws  prior to the commencement      of this  order  shall  be  exercised  by  the      Provincial Government  or any  other  officer      specially empowered  in this  behalf by  that      Government.           Explanation-In  this  sub-paragraph  the      expression "law" includes rules, regulations,      bye-laws and orders.           (c) As  respects those matters regarding      which  the   enactments  applied  under  sub-      paragraph (a)  or the laws continued in force      under  sub-paragraph  (b)  are  inapplicable,      civil, criminal  and revenue  jurisdiction in      the  Orissa  States  shall  be  exercised  in      accordance with  the principles  of  justice,      equity and good conscience".      Under   sub-para   (a)   certain   enactments specified in  the first  column  of  the  Schedule annexed to  the Order  of 1948 were applied to the Orissa  States   including  Talcher,   subject  to certain   amendments    not   material   in   this connection. The  enactments so  specified  in  the Schedule did  not in  any way affect the custom or the law  under which  the grant  in favour  of the petitioner had  been made,  and under sub-para (b)

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the law  of the  State of  Talcher, a contained in the  Regulation   aforesaid  1937   continued   in operation, subject,  of course,  to the provisions of the  order until altered or amended by an order under the Extra Provincial Jurisdiction Act, 1947. It is  contended on  behalf of the petitioner that by virtue of the operation of sub-paragraph (b) of paragraph  4   of  the  Order  of  1948,  the  new sovereign  recognised   the  legal  right  of  the petitioner to  receive his  maintenance  allowance under the grant by the previous Ruler of Talcher.      In this connection we may notice the argument advanced  by   the  learned  Solicitor-General  on hehalf  of  the  respondents  that  there  was  no changeover of  de jure  sovereignty on  the 1st of January, 1948,  as  contended  on  behalf  of  the petitioner, and 443 that such  a change-over  could not  be deemed  to have taken  place until  July 27, 1949, when, as a result of  the promulgations of the Order known as the States’  Merger (Governors’  Provinces) Order, 1949 (Appendix XLIV, page 297 of the White Paper), the  Orissa   States,  including   Talcher,   were integrated in  the  Province  of  Orissa.  In  our opinion there  is no  substance in this contention for the  simple reason  that the  question is  not whether or  when Talcher  became  a  part  of  the Province of  Orissa, or  subsequently of the State of Orissa,  on the advent of the Constitution. The question in  really is  on what date can the State of Talcher  be said  to have completely merged the Dominion of  India within  the meaning  of s. 5 of the amended  Government of  India Act, 1935. Under that section,  the Dominion of India comprised not only the Provinces, called "Governors’ Provinces", or Chief  Commissioners’ Provinces,  but also "the Indian States acceding to the Dominion of India in the manner hereinafter provided" (s.5(c)). We have already   pointed    out,   while    tracing   the relationship between  the  people  of  the  Indian states and  the Dominion  of India,  and later the Union of  India, that  as a  result of  the Merger Agreements,  referred   to  above,  those  States, including the  State of Talcher, completely merged in the  Dominion of  India on  the list of January 1948.      But  then   it  was  argued  by  the  learned Solicitor-General  that,  alternatively,  assuming that Talcher  had become a part of the Dominion of India in  January, 1948,  the grant made in favour of the  petitioner was  not a law, and was neither recognised nor  continued in  force by  virtue  of subpara. (b)  of paragraph 4 of the Order of 1948. It is,  therefore, necessary  to consider  whether the grant  in favour  of the petitioner had itself the force of law in the State of Talcher. In our 444 opinion, the decisions of this Court, particularly (1) Thakur  Amar Singhji v. State of Rajasthan (2) M/s.  Dalmia   Dadri  Cement   Co.,  Ltd.  v.  The Commissioner of  Income-Tax and Madharao Phalke v. The State  of  Madhya  Bharat  fully  support  the conclusion that  whether the  act  of  the  former rulers  in   making  the   grant  partook  of  the

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character of  legislative, or executive action, it had the  effect of  law, and,  secondly, that  the rules contained  in order  31  of  the  Rules  and Regulations of the State of Talcher, 1937, had the effect of  law and had been continued in force, in the absence  of any  legislation to  the contrary. The last  mentioned case  in particularly opposite to the  facts and  circumstances of this case. The Order 31 of the Rules and Regulations aforesaid of the State  of Talcher stand on the same footing as the Kalambandis  which were  the subject matter of the  decision   in  that   case.  The   Rules  and Regulations, even as the Kalambandis in that case, have the  force of  law and  would be existing law within  the   meaning   of   Art.   327   of   the Constitution. The  provisions of  sub-para. (b) of para. 4  of the  Order of 1948, therefore, clearly applied and  the Regulations  of 1937 continued in force. The  explanation to  the sub  paragraph (b) says in  express terms  that the  expression "law" includes rules,  regulations, bye-laws and orders. In  view   of  the  width  and  amplitude  of  the provisions of  sub-para,(b) of  paragraph  4,  the conclusions   is   irresistible   that   the   new sovereign, by  the legislative  order of 1948, had recognised the  customary grant  in favour  of the Khorposhdhars   of    Talcher,    including    the petitioner. Of  course, the recognition is subject to the reservations, namely, (1) to the provisions of the  Order of  1948, and (2) to any alternation or amendment of the Order by any legislation under the Extra Provincial Jurisdiction Act of 1947. 445      In this  connection, we  may here  notice the further argument advanced by the learned Solicitor General that  even if the petitioner were entitled to take  advantage of  the provisions of sub-para. (b) of  paragraph 4  of the  Order  of  1918,  the impugned  order   stopping  the   grant  could  be supported with  reference to the provisions of ss. 3 (1) and (5) of the Extra Provincial Jurisdiction Act of  1947. Section 3(1) is in general terms and provides that  "it shall be lawful for the Central Government   to    exercise    extra    provincial jurisdiction in  such manner  as it  thinks  fit". This  provision,   which  is   in  general  terms, authorises  the  Central  Government  to  exercise extra provincial jurisdiction in such manner as it thinks fit,  which means,  in accordance  with the subsequent provisions of the Act. or orders passed under the  provisions of  the Act. Those sections, ss. 3(1) and 4, have to be read harmoniously so as not to  make the  provisions  of  s.  4  nugatory. Subsection  (2)   of  s.  4  enables  the  Central Government to  make  any  "order"  in  respect  of matters specified  in cls.  (a), (b),  (c) and (d) therein, and  where an  "order" has  already  been made by  a competent  authority under  s. 4 of the Act, that  order can be superseded only by another valid order  under that very section. Section 3(1) cannot, therefore,  be construed so as to override the provisions of s. 4.      With reference  to the  provisions of s. 5 of the Act, which read,           "Every act and thing done whether before

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    or after  the commencement  of this  Act,  in      pursuance    of    any    extra    provincial      jurisdiction of  the Central Government in an      area outside  the Provinces shall be as valid      as if it had been done according to the local      law then in force in that area". it has  to be  remembered that the Act was enacted with a view to arming the Central 446 Government with  powers to  make provision for the administration of  such areas  as  came  into  the Dominion of  India as  a result  of the process of integrations as  discussed above,  and which areas were not  within the  ambit of  any Governors’  or Chief   Commissioners’    Provinces.   In   order, therefore, to  fill the  legal vacuum for the time being, the  Act was passed to regularise every act and thing done even before the enactment, as if it had been  done according  to the local law then in force in that area. Anything could be done in such a local area according to the laws of that area by authorities  empowered   to   do   so,   but   the functionaries of the Government of India or of its delegate,  would   have  no   jurisdiction  so  to function except  by virtue of the provisions of s. 5. The  section, thus,  clothed such functionaries with legal authority in respect of an act or thing done, which otherwise would have been illegal. But this section  cannot be  construed so  as to  mean that those  functionaries had  been  empowered  to abrogate the  laws which  had  been  continued  in force by  virtue of  s. 4 of the Act, or by virtue of an order made in accordance with the provisions of s. 4 of the Act. In other words, s. 5 cannot be read so  as to  make the provisions of s. 4, or of orders passed  under that section, otiose. All the sections of  the Act  have to  be read, it must be repeated, in  a harmonious  way so as to give full effect to  each one  of the provisions of the Act. It must,  therefore, be  held that  s. 5  did  not authorise the  functionaries of  the Government of India, or  of its  delegate, to  infringe the laws which had  been continued in force by virtue of s. 4,  using   the  word   "laws"   in   their   most comprehensive  sense,   in  accordance   with  the provisions of the Act itself. As a result of these considerations,  it   must  be   held   that   the respondents have no justification for stopping the grant.  The   application  must,   therefore,   be allowed,  and   a  writ   issued   directing   the Government to continue the allowance 447 as from  the date  on which  it was  withheld. The petitioner is entitled to his costs.      In the  second case  (Writ  Petition  167  of 1958), it  must be  held, in  accordance with  the decision  in  the  case  just  decided,  that  the petitioner had  the right claimed by him. But this case is met by the Order dated June 8, 1949, which was  in  terms  made  under  s.  4  of  the  Extra Provincial Jurisdiction Act of 1947. Such an order has the effect of law and was not a mere executive flat, as contended on behalf of the petitioner. By an order  made under  the provisions  of  the  Act aforesaid,   the    Central   Government   clearly

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indicated its  intention of  annulling the  grant. The Order  passed under  the Act has in terms been characterised as of a legislative character; hence it has  the effect  of abrogating the grant so far as the  petitioner  was  concerned.  Whether  that order of annulment was proper or improper, just or unjust, is  not a  matter  which  this  Court  can investigate and  pronounce upon.  It has  not been contended before  us that  the order annulling the grant was  ultra vires  the provisions of the Act, and, therefore,  of no effect. It must, therefore, be held  that the rights claimed by the petitioner in this  case have  been validly terminated by the respondents. This  application must, therefore, be dismissed,  but,  in  the  circumstances,  without costs.      In the  third case  (Writ Petition No. 168 of 1958) in  which the  petitioner is  the same as in the  second   case,  the  position  is  different, because by  the order  dated June  11,  1949,  the Government recognised  the right  to a maintenance at Rs.  800 per  month,  in  modification  of  the previous  grant.   Not   only   was   this   grant recognised, but  the  right  thus  recognised  was given effect  to, because it is common ground that payment continued  to be  made till  July 1, 1957. The payment was stopped 448 only as  a result  of the  statement made  by  the Chief Minister in the Legislative Assembly on June 29, 1957.  As the  right claimed  in this case had been   recognised    by   the    Government,   and implemented, it  could not  be stopped  by a  mere flat of the Government. The petitioner, therefore, is entitled  to the  declaration that his right is intact and to a writ of mandamus to the respondent to carry out its obligations.      In the fourth case (Writ Petition 4 of 1959), the position  is the  same as  in the  third case, just  disposed   of.  In   this  case   also,  the petitioners’ rights were recognised in respects of maintenance allowance  of Rs.  1200 per mensem for the first  petitioner and  the reduced maintenance allowance of  Rs. 1000  per mensem  for the second petitioner. These  allowances continued to be paid until  they  were  stopped  as  a  result  of  the statement aforesaid.  The petitioners,  therefore, are entitled to the same relief as in the previous case (Writ  Petition 168 of 1958). The petitioners in Writ  Petition 168 of 1958 and  Writ Petition 4 of 1959 are entitled to their costs.      MUDHOLKAR, J.  - We agree. We could, however, like to  add a  few words.  In the  course of  his argument Mr.  Viswanatha Sastri  stated that since the Talcher  State was  merged in  the Dominion of India on  January  1,  1948,  there  was  complete change over of sovereignty, that as from that date the  residents  thereof  became  entitled  to  the benefit of  s. 299  (1) of  the Constitution  Act, 1935, that  the Act  of the  Orissa Government  in depriving the petitioner in W.P. 79 of 1957 of his maintenance  grant   in  the   year  1949  was  in violation of  that provision and that consequently the   order    made    in    that    behalf    was unconstitutional.  He   also  contended  that  the

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action of  the  Orissa  Government  could  not  be regarded as an act of State because there can be 449 no act  of state  by  sovereign  against  his  own subject. Referring  to this  argument My  Lord the Chief Justice  in his  judgment has observed: "The argument is  very plausible and attractive, but we need  not   pronounce  upon  it  in  view  of  our conclusion,  as   will  presently   appear,   with reference to  his alternative  argument based upon recognition." The learned Chief Justice went on to deal with the alternative argument advanced by Mr. Viswanatha Sastri and accepted it.      While we  agree with  the conclusions reached by My  Lord the  Chief Justice  on the alternative argument of  Mr. Viswanatha  Sastri and also agree with what  My Lord  has said  with regard  to  the other writ  petitions, we  would like to state our view on  the first  point urged  by Mr. Viswanatha Sastri.  In   our  opinion   s.  299(1)   of   the constitution Act  of 1935  did not  help  grantees from the  former rules  whose rights  had not been recognized by  his new  sovereign in the matter of establishing their  rights in the municipal courts of the  new sovereign because that provisions only protected such  rights as  the new  citizen had at the moment of his becoming a citizen of the Indian Dominion. It did not enlarge his rights nor did it cure any  infirmity in the rights of that citizen: This is  the view  which  we  have  taken  in  our judgment in  State of  Gujarat v.  Jamadar Mahomed Abdulla. In  that case  the rights of the grantees from  the   former  ruler  of  Junagadh  were  not recognised at  any time  by the  Dominion of India and so  we held  that even after becoming citizens of the Indian Dominion they could not assert those rights in  the municipal courts of the Dominion of India. We adhere to that view and reject the first argument of  Mr. Viswanatha Sastri. Since we agree with the rest 450 of the judgment there is nothing more that we need say.                               Petitions 79 of 1957                                    168 of 1958 and                                 4 of 1959 allowed.                    Petition 167 of 1958 dismissed.                    ___________