06 April 1955
Supreme Court


Case number: Writ Petition (Civil) 337 of 1954






DATE OF JUDGMENT: 06/04/1955


CITATION:  1955 AIR  540            1955 SCR  (2) 164

ACT: Bombay Merged Territories and Areas (jagirs Abolition)  Act, 1953  (Bombay  Act  XXXIX  of  1954)-Whether  ultra   vires- Agreement  of  Merger  with, and letters  of  guarantee  to, Bulers of States by the Government of India-Clause 5 of  the letters  of  guarantee-Scope-Legislative  powers  of  States under  Article 246 of the Constitution-Limitations  thereon- Article 363 of the Constitution-Bar to Courts’ jurisdiction- Fundamental  rights-Articles  14, 19(1)(f),  31(2)  of  Con- stitution-Applicability in view of Article 31-A(2)(a).

HEADNOTE: Under Article 246(2) and (3) of the Constitution, the Legis- lature  of  a  State has plenary powers  to  legislate  with respect  to  matters enumerated in Lists II and III  of  the Seventh  Schedule  to  the  Constitution.   The  legislative competence of the State Legisla 165 ture  can  only  be  circumscribed  by  express  prohibition contained in the Constitution itself and unless there is any provision   in   the  Constitution   expressly   prohibiting legislation on a subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the  State  Legislature enjoys to legislate  on  the  topics enumerated  in Lists II and III of the Seventh  Schedule  to the   Constitution.    In  view  of  Article  246   of   the Constitution,  no curtailment of legislative competence  can be  spelt  out of the terms of Clause 5 of  the  Letters  of Guarantee given by the Dominion Government to the Rulers  of "States"  subsequent  to  the agreements  of  Merger,  which guaranteed,  inter  alia, the continuance of Jagirs  in  the merged  "States".   Indeed,  Clause  5  of  the  Letters  of Guarantee itself saved the legislative right of the State of Bombay  subject  to the limitation that  enactments  of  the State shall not be discriminatory in nature. Attacks on the validity of the said Act on the basis of  the rights guaranteed by Articles 14, 19(1)(f), and 32(2) of the Constitution  cannot be countenanced in view of Article  31- A(2)(a) of the Constitution,



Article 363 (1) of the Constitution barred the  jurisdiction of  Courts in disputes arising out of any provision  of  the agreements of merger and the Letters of Guarantee. Held,  that Bombay Act XXXIX of 1954, the impugned Act,  was intra vires the State Legislature. Petitions  Nos.  337 to 349, 365, 366, 481 and 690  of  1954 Dis. missed. Petition No. 364 of 1954 Adjourned. Vajesingji v. Secretary of State (51 I.A. 357), Secretary of State v. Sardar Rustam (68 I.A. 109), State of Saraikella v. Union  of India (1951 S.C.R. 474), Thakur Jagannath  v.  The United Provinces ([1943] F.C.R. 72), Thakur Jagannath v. The United Provinces ( [1946] F.C.R. 111), referred to.

JUDGMENT: ORIGINAL  JURISDICTION:  Petitions under Article 32  of  the Constitution for the enforcement of fundamental rights. K.L. Gauba, (Gopal Singh, with him), for the Petitioners  in Petitions Nos. 337 to 343 and 481 of 1954. K.L.  Gauba, (S.  D. Sekhri, with him), for the  Petitioners in Petitions Nos. 344, 446 and 349 of 1954. K.  L. Gauba, (R.  Patnaik and S. D. Sekhri, with him),  for the Petitioner in Petition No, 345 of 1954, 166 K.L.  Gauba, (N.  C.Chakravarty and S. D. Sekhri, with  him) for the Petitioner in Petition No. 347 of 1954. K.L.  Gauba, (B.  Moropant and S. D. Sekhri, with him),  for the Petitioner in Petition No. 348 of 1954. Rajni  Patel  and  M. S. K. Sastri, for  the  Petitioner  in Petition No. 364 of 1954. Rajni  Patel  and  I.  N. Shroff,  for  the  Petitioners  in Petitions Nos. 365 and 366 of 1954. J.B.  Dadachanji and Rajinder Narain, for the Petitioner  in Petition No. 690 of 1954. M.C.  Setalvad, Attorney-General for India, C. K.  Daphtary, Solicitor-General for India (P.  A. Mehta, R. H. Dhebar  for P.  G.  Gokhale,  with them), for  the  Respondents  in  all Petitions.   1955.  April 6. The Judgment of the Court was delivered by BHAGWATI   J.-These  petitions  under  article  32  of   the Constitution   are  directed  against  the   Bombay   Merged Territories  and Areas (Jagirs Abolition) Act, 1953,  Bombay Act XXXIX of 1954 which was passed by the Legislature of the State of Bombay to abolish jagirs in the merged  territories and  merged  areas  in the State of Bombay.   The  Bill  was passed  by  the Legislature on the 22nd September  1953  and received  the  sanction  of  the Upper  House  on  the  26th September 1953.  The President gave his assent to it on  the 13th  June  1954 and by a notification dated the  15th  July 1954  it was brought into effect from the 1st  August  1954. In  view  of the notification the  Petitioners  filed  these petitions on the 30th July 1954 challenging the vires of the Act (hereinafter called the impugned Act) and asking for the issue of appropriate writs restraining inter alia the  State of  Bombay  from  giving  effect  to  its  provisions.    On applications  made to this Court on the 31st July  1954  the operation of the impugned Act was stayed pending the bearing and final disposal of the petitions, 167 The  Petitioners in Petitions Nos. 337, 344, 345,  346,  347 and 349 of 1954 are relations of the Ruler of the  erstwhile State  of Idar.  The Petitioners in Petitions Nos.  338  and 342  of  1954 are relations of the Ruler  of  the  erstwhile



State of Chhota Udaipur.  The Petitioners in Petitions  Nos. 339  and  341 are relations of the Ruler  of  the  erstwhile State  of Devgad Baria.  The Petitioner in Petition No.  343 of 1954 is a relation of the Ruler of the erstwhile State of Rajpipla.   The Petitioners in Petition No. 340 of 1954  are jagirdars   of  the  erstwhile  State  of   Rajpipla.    The Petitioner in Petition No. 348 of 1954 is a relation of  the Ruler of the erstwhile State of Bansda.  The Petitioners  in Petitions  Nos.  365 and 366 of 1954 are  jagirdars  of  the erstwhile  States  of Idar and Lunawada  respectively.   The Petitioner in Petition No. 481 of 1954 is a relation of  the Ruler  of the erstwhile State of Mohanpur.  The  Petitioners in  Petition  No. 690 of 1954 are the  holders  of  personal Inams  from  the  erstwhile  State  of  Rajpipla.   All  the petitioners except the last claim to be hereditary jagirdars under   grants  made  by  the  respective  States  for   the maintenance of themselves, their families and dependents and hold  the  jagirs  as  Jiwai Jagirs.   The  holders  of  the personal  Inams  in  Petition No. 690 of 1954  used  to  pay salami  to the erstwhile State of Rajpila and  are  included within  the definition of "jagirdar" being holders  of  agir villages  within  the  meaning  of  the  definition  thereof contained in the impugned Act. The Petitioner in Petition No. 364 of 1954 claims to be  the owner of 60 villages in the patta or territory of Moti Moree comprised  in the erstwhile State of Idar as the  Bhumia  or under-lord  and  contends  that his holding  does  not  fall within the definition of jagir as given in the impugned  Act and  that therefore in any event the State of Bombay is  not entitled to enforce -the impugned Act against him. All  these  Petitioners  have challenged the  vires  of  the imapugned  Act mainly relying upon the agreements of  merger entered into by the Rulers of the respective States with the Dominion  of India on or about the 19th March 1948  and  the collateral letters of guarantee 168 passed  by  the  Ministry  of  States  in  their  favour  on subsequent  dates,  the contents of which were  regarded  as part of the merger agreements entered into by them with  the Dominion of India. The  merger  agreements were in the form given  in  Appendix XIII to the White Paper at page 183: "FORM  OF MERGER AGREEMENT SIGNED BY RULERS OF  GUJARAT  AND DECCAN               STATES AGREEMENT MADE THIS                            day of between   the   Governor-General  of  India   and   the   of Whereas  in the immediate interests of is desirous that  the administration of the State should be integrated as early as possible with that of the Province of in such manner as  the Government  of  the Dominion of India may think fit;  It  is hereby agreed as follows:-                     ARTICLE 1. The                             of hereby  cedes to the Dominion Government full and  exclusive authority,  jurisdiction and powers for and in  relation  to the  Governance  of  the State and agrees  to  transfer  the administration of the State to the Dominion Government on the                       day of 1948 (hereinafter referred to as "the said day"). As  from  the  said  day the  Dominion  Government  will  be competent  to  exercise  the  said  powers,  authority   and jurisdiction  in such manner and through such agency  as  it may think fit.                  ARTICLE 2.



The                     shall with effect from the said  day be  entitled  to  receive from the  revenues  of  the  State annually    for    his    privy    purse    the    sum    of rupees free of taxes.  This amount is intended to cover  all the expenses of the Ruler and his family, including expenses on  account  of  his  personal  staff,  maintenance--of  his residences, 169 marriages  and  other ceremonies, etc. and will  neither  be increased nor reduced for any reason whatsoever. The said sum may be drawn by the in  four  equal instalments in advance at the  beginning  of each quarter by presenting bills at the State Treasury or at such  other  Treasury as may be specified  by  the  Dominion Government. ARTICLE 3. The                      shall  be  entitled  to  the   full ownership,  use and enjoyment of all private properties  (as distinct from State properties) belonging to him on the date of this agreement. The                will furnish to the Dominion                Government before the                  day of 1948 an inventory of all the immovable property,  securities and cash balance held by him as such private property. If any dispute arises as to whether any item of property  is the  private property of the or State property, it shall be referred to such officer with judicial experience as the Dominion Government may  nominate and the decision of that officer shall be final and  binding on both parties. ARTICLE 4. The                   shall    be    entitled     to     all personalprivileges enjoyed by them whether within or outside the  territories of the State, immediately before  the  15th day of August 1947.                          ARTICLE 5. The Dominion Government guarantees the succession, according to law and custom, to the gadi of the State and to the personal rights, privileges, dignities and titles. In  confirmation whereof Mr. Vapal Pangunm Menon,  Secretary to  the Government of India in the Ministry of  States,  has appended  his signature on behalf and with the authority  of the Governor-General of Indiab and has appended his 22 170 signature on behalf of himself, his heirs and successors,                     of Dated     Secretary to the Government of India, Ministry  of States". The  letters  of  guarantee  subsequently  executed  by  the Ministry  of  States  in favour  of  the  respective  Rulers contained the following guarantees:- "(1)  Your privy purse will be fixed in accordance with  the formula  applied  in relation to the fixation of  the  privy purse  of the Deccan States Rulers whose States have  merged into  the  Bombay  Province.  The amount will  be  fixed  in perpetuity  to  you,  your heirs and  successors,  and  will neither be increased nor reduced for any reason  whatsoever. It  will  be  free  of all taxes,  whether  imposed  by  the Government  of Bombay or by the Government of India  and  it will  not  be taken into account in the assessment  of  your world income to income-tax or super-tax. (2)  The cash balances and other assets of your State on the day  you  transfer the administration of your State  to  the Dominion  Government will, as far as possible, be spent  for



the benefit of the people of your State. (3)  You  will  be entitled to the full ownership,  use  and enjoyment of all Darbari or private properties (as  distinct from State Properties) belonging to you on the date of  your making over the administration of your State to the Dominion Government.    Darbari  properties  will  include   palaces, houses,   residences,   guest  houses,   stables,   garages, quarters, outhouses, etc. which are at the date of  transfer of administration in bonafide personal use or occupation  of the  Ruler  or  members of his  family  or  personal  staff, irrespective  of  whether the property is  situated  in  the Capital,  or at any other place in the State, or in  Bombay, or anywhere else outside. (4)  The continuation in service of the permanent members of the  public services of your State is hereby  guaranteed  on conditions which will be no less advantageous than those  on which they were serving  171 on 1st April 1948.  In the event of continuation of  service not being possible in any case, reasonable compensation will be paid. (5)  Pensions,   gratuities,  annuities,   and   allowances, granted  by the State to the members of its public  services who  have retired or have proceeded on leave preparatory  to retirement  before 1st April 1948 as also the  enjoyment  of the ownership of Khangi villages, lands, jagir, grants, etc. existing  on  1st April 1948 are  hereby  Guaranteed.   This guarantee is without prejudice -Co -the right of  Government of   Bombay  to  issue  any  legislation  which  does,   not discriminate against the states and their subjects. (6)  All emblems, insignia, articles and other Paraphernalia of  the  Ruler will be considered as belonging  to,  and  be regarded as his private property. (7)  No order passed or action taken by you before the  date of making over the administration to the Dominion Government will  be  questioned unless the order was passed  or  action taken  after the 1st of April 1948 and is considered by  the Government  of India to be palpably unjust or  unreasonable. The decision of the Government of India in this respect will be final. (8)  No  enquiry shall be made nor shall proceedings lie  in any  Court  in  India against you,  whether  in  a  personal capacity  or  otherwise,  in respect  of  anything  done  or omitted to be done by you or under your authority during the period of your administration of the State. (9)  Every   question of disputed succession in regard to  a Gujarat State which has signed an agreement integrating  the administration  of  the State with that of the  Province  of Bombay  shall be decided by a Council of Rulers  of  Gujarat States after referring it to the High Court of Bombay and in accordance  with the opinion given by that High Court.   All questions  relating to the rights, dignities and  privileges of  the  Ruler  will also be considered by  the  Council  of Rulers  who  shall  make  suitable  recommendations  to  the Government  of  Bombay  and the Government  of  India.   The Council shall consist of the Rulers of all 172 full  jurisdictional Gujarat States, whether salute or  non- salute.   No  ruler who is less than 21 years of  age  shall however be a member of the Council.  The Council will  elect one of its members to be the President of the Council.   The President  and the members of the Council will  hold  office for  a term of five years from the date on which they  enter upon the duties of their respective offices. 2.The  contents of this letter will be regarded as  part  of



the merger agreement entered into by you with the  Governor- General of India". The  contention  which  has  been urged  before  us  by  the Petitioners  relying  upon  clause  5  of  the  Letters   of Guarantee  aforesaid is that the enjoyment of the  ownership of   the  jagirs  existing  on  the  1st  April,  1948   was guaranteed, that this guarantee was binding on the State  of Bombay,  that  the State of Bombay and therefore  the  State Legislature  had waived the right, if any, or in  any  event had  no  legislative  competence to  enact  any  legislation depriving  the  holders  of the jagirs  of  their  right  of ownership over the same, and that even though the Government of  Bombay  has reserved to itself the right  to  issue  any legislation  which did not discriminate against  the  states and  their subjects, the impugned Act was ultra vires  inas- much as no legislation could be undertaken which would  have the  effect of depriving the holders of the jagirs of  their ownership  over the same and the provisions of the  impugned Act were in any event discriminatory against the States  and their  subjects  or  in other words  the  impugned  Act  was confiscatory and also discriminatory. It was contended on the other hand on behalf of the State of Bombay  that  the agreements of merger and  the  letters  of guarantee  were executed by the Dominion of India  and  were not  binding  on the State of Bombay, that  the  Petitioners were not parties to the agreements of merger and letters  of guarantee  and  that they were not entitled to  enforce  the same,  that even if they be treated as parties  thereto  the dispute  between the parties arose out of the provisions  of the agreements and covenants which were entered into or 173 executed before the commencement of the Constitution by  the Rulers of the respective states and to which the  Government of  Dominion  of India was a party and that  therefore  this Court had no jurisdiction to interfere in the said  disputes by   virtue  of  the  provisions  of  article  363  of   the Constitution, that the State Legislature had plenary  powers of  legislation  within the ambit of its sphere  unless  the Constitution itself expressly prohibited legislation on  the subject  either  absolutely or conditionally, that  no  such prohibition  could be spelt out of the terms of clause 5  of the letters of guarantee and that the impugned Act was intra vires  the powers of the State Legislature and could not  be challenged.   Once  that  position was  established  it  was further  urged  that  the jagirs in  question  were  estates within  the definition of the expression in article  31-A(2) (a) of the Constitution and the impugned legislation being a legislation  providing for the acquisition by the  State  of the estates and the rights therein or for the extinguishment or modification of the same could not be challenged as  void on the ground that it was inconsistent with or abridged  any of the rights conferred by any provisions of Part III of the Constitution, and that therefore the impugned Act could  not be challenged as violative of any of the fundamental  rights of  the  Petitioners.  It was also urged that  none  of  the provisions  of the impugned Act were confiscatory or in  any manner   whatever   discriminatory,   fair   and    adequate compensation  having been provided for the abolition of  the jagirs  and  the States and their subjects not  having  been dealt within any discriminatory manner as compared with  the subjects of the original State of Bombay. As regards the contention that the agreements of merger  and the  letters of guarantee were executed by the  Dominion  of India  and  were not binding on the State of Bombay  it  was urged  on behalf of the Petitioners that the  Government  of



the   Dominion  of  India  was  certainly  bound  by   those guarantees  and this obligation of the  Dominion  Government devolved  upon  the Province of Bombay  when  the  erstwhile States which were parties to the agreements of merger 174 and  the letters of guarantee became merged in the  Province of Bombay, under clause 8 of the States’ Merger  (Governors’ Provinces)  Order,  1949 (Appendix XLIV, White  Paper,  Page 297),  that these obligations were thus deemed to have  been undertaken  by  the  Dominion Government on  behalf  of  the absorbing  Province, viz., the Province of Bombay  and  were binding  upon  the  Province of Bombay, and  that  when  the Constitution came into force from the 26th January 1950  all rights,  liabilities  and obligations of the  Government  of each Governors’ Province whether arising out of any contract or  otherwise were under article 294 of the Constitution  to be  the rights, liabilities and obligations respectively  of the  Government  of  each  corresponding  State  and   these obligations of the Province of Bombay accordingly became the obligations  of the State of Bombay.  It was  further  urged that  the  State of Bombay was thus bound by all  the  obli- gations which bad been undertaken by the Dominion Government under  the  agreements of merger and  letters  of  guarantee above referred to, and it could not lie in the mouth of  the State of Bombay to repudiate the same. This  argument is not without force, but we do not  consider it  necessary to decide this question because even  assuming that the State of Bombay was bound by these obligations, the question still remains how far the Petitioners before us are entitled  to enforce these obligations against the State  of Bombay.  The Petitioners were certainly not parties to these agreements  of merger and letters of guarantee  eo  nominee. They could only claim to be parties to the same by reason of the  fact  that the Rulers of the erstwhile States  did  not negotiate  these agreements of merger or obtain the  letters of  guarantee only in respect of their personal  rights  and properties  but  also  represented  the  States  and   their subjects in the matter of obtaining the same and the subject of these States were therefore represented by the Rulers and were  entitled to the benefit of whatever  obligations  were undertaken by the Dominion of India qua the States and their subjects.  It is therefore arguable that the Rulers 175 of the erstwhile States as also their subjects would be in a position  to enforce these obligations.  This  position  was however sought to be negatived by relying upon the following observation  of  their  Lordships of the  Privy  Council  in Vajesingji Joravarsingji v. Secretary of State for India  in Council(1) at page 360:- "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 recognized 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 rule  of predecessors avail him nothing.  Nay more, even  if in  a  treaty  of  cession it  is  stipulated  that  certain inhabitants should enjoy certain rights, that does not  give a  title to those inhabitants to enforce these  stipulations in the municipal Courts.  The right to enforce remains  only with the high contracting parties".



These observations were quoted with approval in Secretary of State  v. Sardar Rustsam Khan & Others(2) at page  124.   It was  therefore  urged that it will be the  high  contracting parties, viz., the Rulers of the respective States who would be  in a position to enforce these obligations and  not  the Petitioners   for  whose  benefit  these  obligations   were undertaken by the Dominion Government. We do not feel called upon to pronounce upon the validity or otherwise  of these contentions also for the  simple  reason that  the Petitioners would be out of Court either way.   If they  were deemed to be parties to the agreements of  merger and letters of guarantee they would be faced with the bar to the  maintainability of the petitions under article  363  of the Constitution which lays down that neither the Supreme (1) 51 Indian Appeals 357. (2) 68 Indian Appeals 109. 176 Court  nor  any other Court shall have jurisdiction  in  any dispute arising out of any provision of a treaty, agreement, covenant,  engagement,  sanad or  other  similar  instrument which  was entered into or executed before the  commencement of the Constitution by any ’Ruler of an Indian State and  to which     the    Government    of    the     Dominion     of India.................... was a party.  If on the other hand they  were deemed not to have been parties to the same  they would not be the contracting parties and would certainly not be able to enforce these obligations. It was therefore urged on behalf of the Petitioners that the dispute  between  the  parties  did not  arise  out  of  the provisions  of the agreements of merger and the  letters  of guarantee which were entered into or executed by the  Rulers of the respective States and to which the Government of  the Dominion of India was a party.  According to the Petitioners they  merely  challenged the vires of the impugned  Act  and relied upon clause 5 of the letters of guarantee in order to establish  the  position that the State Legislature  had  no legislative  competence to legislate on the subject  of  the abolition  of  jagirs.  That was, it was  submitted,  not  a dispute arising out of the agreements of merger and  letters of  guarantee  but  arose  out  of  the  act  of  the  State Legislature   in  enacting  the  impugned  Act   in   direct contravention  of the guarantee incorporated in clause 5  of the  letters of guarantee.  This argument however would  not avail  the  Petitioners,  because if  one  looked  into  the averments contained in their petitions it was clear that the whole ambit of the petitions was to enforce clause 5 of  the letters of guarantee.  The Petitioners relied upon clause  5 of  the letters of guarantee which had been obtained by  the Rulers  of the erstwhile State from the Dominion  Government and  complained that the State Legislature had  enacted  the impugned Act which it had no power to enact having regard to clause  5  of  the  said  letters  of  guarantee  and   were wrongfully  depriving  the Petitioners of  the  jagirs,  the ownership  of  which had been  guaranteed  thereunder.   The whole of the petitions were nothing else except the 177 claim  to enforce the Petitioners’ rights under the  letters of  guarantee,  and the disputes therefore were  clearly  in respect  of  the  agreements of merger and  the  letters  of guarantee  and  were  covered  by article  363  (1)  of  the Constitution.   A  similar  contention had  been  raised  on behalf  of the plaintiffs in State of Seraikella and  Others v. Union of India and Another(1) and was repelled by  Kania, C.J. at page 490 as under:--- "The  plaintiff  contends  firstly that it  had  signed  the



Instrument  of Accession through its Ruler.  The State  next complains  that, acting beyond the powers given  over  under the  Instrument of Accession,.the Dominion of India and  the State of Bihar are trespassing wrongfully on its legislative and executive functions, that the Dominion of India and  the State  of Bihar are making laws which they have no power  to make, having regard to the Instrument of Accession, and  are wrongfully interfering with the administration of the  State beyond  the  rights given to them under  the  Instrument  of Accession.   The  whole plaint is nothing  else  except  the claim to enforce the plaintiff’s right under the  Instrument of  Accession.  The dispute therefore in my opinion  clearly is in respect of this Instrument of Accession and is covered by  Article  363(1)  of  the  Constitution  of  India.   The question  of  the validity of the different  enactments  and orders is also based on the rights claimed under the Instru- ment of Accession so far as the plaintiff is concerned". It  could not therefore be urged that what  the  Petitioners were doing was not to enforce the obligations undertaken  by the  Dominion Government under the agreements of merger  and the  letters of guarantee, or that the disputes between  the parties  did  not  arise  out  of  the  provisions  of   the agreements of merger and the letters of guarantee which were entered  into  or executed by the Rulers of  the  respective States and to which the Government of Dominion of India  was a   party  within  the  meaning  of  Article  363   of   the Constitution. (1)  1951 S.C.R. 474. 23 178 If that was the position the jurisdiction of this Court  was ousted and this Court could not interfere in those disputes. Assuming  however  that  the Petitioners  were  entitled  to enforce the obligation and guarantee incorporated in  clause 5  of the letters of  s guarantee the further difficulty  in the way of the Petitioners is that the State Legislature was fully  competent to enact the impugned  Act  notwithstanding the  terms of the guarantee.  The legislative competence  of the  State Legislature can only be circumscribed by  express prohibition contained in the Constitution itself and  unless and  until  there  is  any  provision  in  the  Constitution expressly  prohibiting  legislation on  the  subject  either absolutely   or  conditionally,  there  is  no   fetter   or limitation on the plenary powers which the State Legislature enjoys to legislate on the topics enumerated in the Lists II &  III of the Seventh Schedule to the Constitution.  It  was conceded  on  behalf of the Petitioners that  the  topic  of legislation  which was covered by the impugned Act was  well within  List  II of the said Schedule and the vires  of  the impugned  Act could not be challenged on that  ground.   The ground  of  attack  was that  the  Dominion  Government  and therefore  the  State  Government bad waived  its  right  to legislate on the topic of the abolition of jagirs or had  in any event put a fetter or limitation on their power to issue any legislation in that behalf by the terms of the guarantee contained  in clause 5 of the letters of guarantee.  It  was contended  that  under  the terms of clause  5  an  absolute guarantee  had  been  given by the  Dominion  Government  in regard to the enjoyment of the ownership of jagirs and  that the  Dominion Government and therefore the State  of  Bombay were  precluded from enacting any legislation which had  the effect  of  destroying  that  ownership.   This   contention however  could  not be supported by the terms  of  clause  5 which  embodied in the first part thereof the terms  of  the guarantee,  and went on to provide in the second  part  that



this  guarantee  was without prejudice to the right  of  the Government of Bombay to issue any legislation which did  not discriminate against the States and their 179 subjects.   It was therefore not an absolute  guarantee  but was  circumscribed  or cut down by the  reservation  of  the power  to make law with respect to jagirs provided such  law did not discriminate against the States and their  subjects. The  right  of  the  Government of  Bombay  which  was  thus reserved covered the whole of the guarantee embodied in  the first  part  of the clause and there was  nothing  in  these terms  which  would  go to show that the  ownership  of  the jagirs could not be touched and the legislation, if any, was to be enacted in regard to certain incidents of enjoyment of such  ownership.  The right of the Government of  Bombay  to issue  any legislation with regard to the enjoyment  of  the ownership  of  jagir lands was expressly reserved  and  this right covered also legislation in regard to the abolition of the  jagirs  and  the Government  of  Bombay  was  therefore entitled  under  the  terms of this clause 5  to  issue  any legislation in regard to the same provided however that such legislation  did  not discriminate against  the  States  and their  subjects.   That was the only fetter  or  limitation, imposed upon the right of the Government of Bombay to  issue any legislation in regard to the enjoyment of the  ownership of  jagir lands and if that fetter or limitation could  also be  imposed on the State Legislature the  Petitioners  would have had a right to challenge the impugned Act on the ground that it discriminated against the States and their subjects. The  fetter or limitation upon the legislative power of  the State  Legislature which had plenary powers  of  legislation within  the ambit of the legislative heads specified in  the Lists  II & III of the Seventh Schedule to the  Constitution could only be imposed by the Constitution itself and not  by any  obligation  which  bad been undertaken  by  either  the Dominion  Government or the Province of Bombay or  even  the State  of Bombay.  Under Article 246 the  State  Legislature was  invested  with  the power to legislate  on  the  topics enumerated in Lists II & III of the Seventh Schedule to  the Constitution and this power was by virtue of article  245(1) subject   to  the  provisions  of  the  Constitution.    The Constitution itself laid down the fetters 180 or  limitations  on  this power, e.g.,  in  article  303  or article 286(2).  But unless and until the Court came to  the conclusion  that  the  Constitution  itself  had   expressly prohibited  legislation on the subject either absolutely  or conditionally  the power of the State Legislature  to  enact legislation  within its legislative competence was  plenary. Once  the topic of legislation was comprised within  any  of the entries in the Lists II & III of the Seventh Schedule to the   Constitution   the  fetter  or  limitation   on   such legislative  power had to be found within  the  Constitution itself  and if there was no such fetter or limitation to  be found  there  the State Legislature had full  competence  to enact the impugned Act no matter whether such enactment  was contrary   to  the  guarantee  given,  or   the   obligation undertaken  by  the Dominion Government or the  Province  of Bombay  or even the State of Bombay.  The Petitioners  would have a legitimate grievance in the matter of the deprivation of their rights of ownership of the jagir lands in so far as the  States and their subjects were  discriminated  against, but they would not be able to have their grievance redressed by this Court for the simple reason that the State  Legisla- ture  was at all events competent to enact the impugned  Act



not  being fettered at all by the terms of clause 5  of  the letters  of guarantee.  The provisions of article 294(b)  of the  Constitution  which  is said to  have  transferred  the obligations  of the Government of the Province to the  State of  Bombay  would not by involving the transference  of  the obligation undertaken by the Dominion Government in clause 5 of the letters of guarantee to the State Government impose a fetter  or limitation on the legislative competence  of  the State Legislature to enact legislation on any of the  topics enumerated in Lists II & III of the Seventh Schedule to  the Constitution.  The remedy of the Petitioners would be  else- where  and  not in this forum.  The learned  Judges  of  the Federal  Court gave an answer to a similar complaint of  the Taluqdars of Oudh made by them against the United  Provinces Tenancy Act XVII of 1939 in Thakur 181 Jagannath  Baksh  Singh v. The United Provinces(1)  at  page 87:- "We  desire,  however, to point out that what they  are  now claiming  is that no Legislature in India has any  right  to alter  the  arrangements embodied in their sanads  nearly  a century ago; and, for all we know, they would deny the right of  Parliament itself to do so. We hope that no  responsible Legislature or Government would ever treat as of no  account solemn   pledges  given  by  their  predecessors;  but   the readjustment of rights and duties is an inevitable  process, and  one  of the functions of the Legislature  in  a  modern State  is to effect that readjustment,  where  circumstances have  made it necessary, with justice to all concerned.   It is however, not for this ’Court to pronounce upon the wisdom or  the justice, in the broader sense, of legislative  acts; it    can    only   say   whether    they    were    validly enacted........................................" These  observations  were  quoted  with  approval  by  Their Lordships  of  the Privy Council in Thakur  Jagannath  Baksh Singh  v.  The United Provinces(1) at page 122 and  we  also would  observe in the same strain that we are not  concerned with  the  policy of the State Legislature in  enacting  the impugned  Act  for  abolition  of jagirs  but  we  are  only concerned  with  the question whether the impugned  Act  was validly enacted. No  argument has been advanced before us which would  enable us  to hold that the impugned Act was ultra vires the  State Legislature, the only ground of attack being that it was  in contravention  of  the guarantee given in clause  5  of  the letters  of guarantee.  But that position is of no avail  to the Petitioners. Considerable  argument was addressed before us based on  the comparison  of  the provisions of the various  Acts  of  the Bombay  State Legislature enacted during the years  1949  to 1953  in  regard  to the abolition of  the  various  tenures obtaining within the State of Bombay with the provisions  of the impugned Act, with a view to show that the provisions of the impugned Act were discriminatory against the States (1) 1943 F.C.R. 72. (2) 1946 F.C.R. III. 182 and  their  subjects within the meaning of clause 5  of  the letters  of guarantee.  We have not thought it necessary  to refer  to the same in view of the conclusion which  we  have reached  above  that the impugned Act was  intra  vires  the powers  of the State Legislature and the  State  Legislature was quite competent to enact the same. Even if it could be demonstrated that the provisions of  the impugned Act were confiscatory as well as discriminatory  in



the manner suggested, the jagirs of the Petitioners  (except in  the case of the Petitioner in Petition No. 364 of  1954) were  all estates within the meaning of the term as  defined in  Article 31-A(2)(a) of the Constitution and even  if  the impugned Act provided for the acquisition of the estates  or of any rights therein or for the extinguishment or modifica- tion  of  any  such rights the impugned  Act  could  not  be challenged  as void on the ground that it  was  inconsistent with or took away or abridged any of the fundamental  rights conferred  by Part 11I of the Constitution.   Any  challenge therefore  on the ground of the impugned Act  violating  the fundamental  rights of the Petitioners under article  14  or article  19(1)(f) or article 31(2) of the  Constitution  was not available to the Petitioners.  On the other hand if  the grievance  was that the impugned Act had brought about  dis- crimination  in  breach of clause 5 of the letters  of  gua- rantee then the dispute clearly arose out of the letters  of guarantee  and  would by article 363 be  placed  beyond  the jurisdiction   of   this  Court.   The  Petitions   of   the Petitioners  except Petition No. 364 of 1954 which would  be dealt  with  immediately hereafter therefore  fail  and  are liable to be dismissed.                   Petition No. 364 of 1954 In addition to the grounds common to all the Petitions which we have already dealt with above the Petitioner in  Petition No.  364  of  1954 claims that he is the  owner  of  the  60 villages  in the Putta or territory of Moti Moree  comprised in  the erstwhile State of Idar as the Bhumia  or  underlord and  contends  that  his holding does not  fall  within  the definition of 183 jagir  as  given  in the impugned Act.  In  support  of  his contention  he  has traced the history of Moti  Moree  since 1250  A.D.  and in any event since 1800 A.D  when  the  then Chieftain  of  Moti  Moree entered into a  treaty  with  the Maharaja  Zalimsinh  of Modasa whereby in  consideration  of payment  of  Rs. 361 annually the said Zalimsinh  agreed  to protect  Moti Moree against the attacks of  the  neighboring State  of  Doongarpur.  He has pointed out  that  thereafter Modasa  was absorbed into the Taluka of Amnagar in 1821  and subsequently  in  about 1849 it reverted to Idar  State  and continued  with the Idar State until the latter merged  into the Province of Bombay in 1948.  He contends that he and his predecessors  were  enjoying and exercising  full  sovereign rights  over Moti Moree ever since the said treaty  of  1800 and  their  position  had  remained  unchanged,  their  only liability being to pay Rs. 361 annually for protection.   He further  contends  that  they were enjoying  the  rights  of excise  and customs and revenue, that they did not  pay  any revenue  to the State of Idar and enjoyed and  continued  to enjoy rights over all lands, forests, minerals, river  beds, village  sites, etc. and that when the Ruler of Idar  wanted that  there  should be uniform customs levy  throughout  the State,  the  said  Ruler had to  give  compensation  to  the Petitioner  and had also similarly negotiated with them  and had  to pay compensation to them in respect of salt,  opium, excise  etc.  He has pointed out that Rs. 457  for  customs’ Rs. 40 for opium and Rs. 7 for salt were being paid annually by  the  erstwhile  State  of Idar  and  thereafter  by  the Government of State of Bombay to him by way of  compensation for  these sovereign rights of his, which amounts  were  set off  against Rs. 361 being the annual payment of  protection which  he  paid as aforesaid to them.  These rights  of  his recognised  by the erstwhile State of Idar and also  by  the State  of  Bombay constituted him a Thakur or  underlord  of



Moti Moree and he contends that his estate of Moti Moree  is not  a jagir within the definition of the term given in  the impugned Act. Our attention has also been drawn in this behalf to 184 Bombay  Gazetteer,  Vol.  5 (1880),  page  398,  where  Mori (Meghraj)  is  described  as  the  estate  of  the  original landlords  Bhumias otherwise described as petty  chiefs  and underlords  and to page 409 where the  underlords  (Bhumias) are  stated  to be the early chiefs who settled in  Idar  at least not later than the Rathod conquest (about 1250). The State of Bombay on the other hand has denied the several allegations  contained in the petition and contends that  in the year 1891 the erstwhile State of Idar had conferred upon the  Thakore  of  Moti Moree the powers  of  a  Third  Class Magistrate as an act of "grace", that in 1902 the management of the estate was taken over by the erstwhile State of  Idar and one Kamdar Mathurlaji was appointed as Japtidar, that in 1910  the  management was lifted as a special case  and  the arrears   of  Nazrana  were  ordered  to  be  recovered   in installments by the erstwhile State of Idar that in  several documents  Moti Moree was described as Bhomia  Jagir  within the  definition of the term Jagir as given in  the  impugned Act  and that the sum of Rs. 361 was still  being  regularly paid  even  after  merger as "Kichari  hak".   It  therefore contends that the Thakore of Moti Moree, the Petitioner is a jagirdar and Moti Moree is a jagir within the meaning of the definition thereof given in the impugned Act.     These allegations and counter-allegations do not however carry  the  matter any further.  In order  to  exclude  Moti Moree and the Petitioner from the operation of the  impugned Act  it  will be necessary for the Petitioner  to  establish satisfactorily  that Moti Moree is, not a jagir  within  the definition  thereof given in the impugned Act.  Even  though the  allegations of the Petitioner go far enough to make  it probable that Moti Moree was neither held by the  Petitioner and  his ancestors under a grant or was not recognised as  a grant  by  the Ruler of the erstwhile State  of  Idar,  that would  not  be enough to enable us to grant him  the  relief prayed  for by him.  The question requires to be  completely thrashed  out and adjudicated upon by a Court of  law  after going into the evidence 185 adduced  before  it  by  both  the  parties.   The   learned Attorney-General  appearing  for  the State  of  Bombay  has therefore  submitted that this question should  be  enquired into  by  a  proper tribunal and the  Petitioner  should  be referred to a civil suit in order to establish his rights. We accordingly feel that the Petition No. 364 of 1954 should be  adjourned till after the disposal of a civil suit to  be filed   by  the  Petitioner  in  the  proper  Court  for   a declaration  that  Moti  Moree is not  a  jagir  within  the definition of the term as given in the impugned Act and  for consequential   reliefs.   The  learned  Counsel   for   the Petitioner  has given us to understand that a formal  notice under Section 80 of the Civil Procedure Code in this  behalf has  already been served by the Petitioner on the  State  of Bombay.  We therefore order that the Petitioner do file  the necessary  suit  within  3 months from this  date  and  this petition do stand adjourned till after the hearing and final disposal  of that suit.  The stay granted by this  Court  in this petition will continue in the meanwhile.  We may record here  that  the learned Attorney-General on  behalf  of  the State  of Bombay has also given his undertaking not to  take any steps against the Petitioner in the meanwhile.



Petitions  Nos.  337 to 349, 365, 366, 481 and 690  of  1954 will  therefore stand dismissed.  Petition No. 364  of  1954 will stand adjourned sine die till after the disposal of the civil suit to be filed by the Petitioner as above indicated. If  no such suit is filed within the aforesaid  period  this petition  will also stand dismissed.  Each party  will  bear and pay the respective costs of the petitions. 24 186