06 March 1964
Supreme Court


Case number: Writ Petition (Civil) 87 of 1962






DATE OF JUDGMENT: 06/03/1964


CITATION:  1964 AIR 1590            1964 SCR  (7)  55  CITATOR INFO :  F          1964 SC1663  (5,12)  RF         1968 SC 658  (12)  RF         1980 SC   1  (28)  E          1984 SC 121  (21)

ACT: Suit against Former Ruler-Requirement of consent of  Central Government-Constitutional validity-Code of Civil  Procedure, 1908  (Act  5 of 1908), ss. 87B, 86-Constitution  of  India, Arts. 14. 19(1)(f).

HEADNOTE: The  petitioners  applied  for the consent  of  the  Central Government  under s. 87B of the Code of Civil  Procedure  to sue the Maharaja of Tripura, Ruler of a former Indian State, which  has  merged with India.  They wanted to  implead  the Union  of India as well, as party to the suit as their  case was  that  they were entitled, as members of a  joint  Hindu family  to  receive either from the said Ruler or  from  the Union appropriate maintenance allowance under the custom  of the  Ruling  family.   Consent  having  been  refused,  they applied  to  this Court under Art. 32 of  the  Constitution. Their case was that s. 87B of the Code in granting exemption to  Rulers  of former Indian States from being  sued  except with the consent of the Central Government contravened Arts. 14 and 19(1)(f) of the Constitution. Held, that in view of the previous decision of this Court s. 87B  of  the Code of Civil Procedure was no longer  open  to challenge under Art. 14 of the Constitution. Mohan  Lal  Jain  v. His Highness Maharaja  Shri  Sawai  Man Singhji [1962] 1 S.C.R. 702, referred to. Regard  being  had to the legislative and  historical  back- ground  of  s. 87B of the Code, it could not be  said  that, that  section in giving special treatment to  ex-Rulers  had imposed  an  unreasonable restriction  on  the  petitioner’s fundamental rights.  Motivated as it was by the sole  object of  bringing the entire country including the former  Indian States  under one Central Government, it must be held to  be reasonable and in the interest of the general public.



But  considered  in  the light of  the  basic  principle  of equality before law it would be odd to allow the section  to continue  prospectively  for  all time to  come.   It  would therefore, be for the Central Government to consider whether it  should  not  be confined to  dealings  and  transactions previous to January 26, 1950. Nor should the section be used to stifle claims except  such as  are clearly far-fetched or frivolous and consent  should ordinarily  if  not as matter of course, be granted  in  the case  of a genuine dispute which prima facie appears  to  be triable by a court of law such as the present one. 56

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 87 of 1962. Petition under Art. 32 of the Constitution of India for  the enforcement of Fundamental Rights. S. S. Shukla, for the petitioner. N.   S. Bindra and R. H. Dhebar, for respondent No. 1. M. C. Setalvad and D. N. Mukherjee, for respondent No. 2. March 6, 1964.  The Judgment of the Court was delivered by GAJENDRAGADKAR  C.  J.-This is a writ petition  filed  under Art.  32 of the Constitution by which the eight  petitioners challenged the validity of section 87B of the Code of  Civil Procedure.  These petitioners claim that they and respondent No.  2,  His  Highness Maharaja  Kirit  Vikram  Kishore  Deb Varman, are members off a joint Hindu family governed by the Dayabhaga School of Hindu Law.  Under a family custom which, it  is alleged, has prevailed in this family for  centuries, the Raj as well as the Zamindari properties belonging to the family are held by a single individual and the other members of  the family are entitled to maintenance according to  the status of the family with the right to succession to the Raj as  well as the Zamindari properties under the general  rule of  succession which prevails and which is not  inconsistent with  the  family custom.  The head of the  family  was,  by family custom, called the Chief and he was chosen from among the  members of the Ruling Deb Barman family and used to  be installed  on the Gaddi or Throne.  The petitioners  further alleged that the Ruler when so chosen and installed held the State  and  Zamindari as life tenant subject  to  the  usual charges for maintenance of the members of the Ruling Family. In course of time, the maintenance allowance of the  members of  the  Ruling family came to be fixed arbitrarily  by  the Rulers without any regard to their status and their  legiti- mate needs, and that led to discontent among them which  re- sulted  in  a serious agitation raised by  them  during  the lifetime  of the late Maharaja Bir Bikram.  In  consequence, at  the time of Regency of Her Highness Rajmata  during  the minority  of  the  last  Ruler  Maharaja  Kirit  Bikram,   a Committee was appointed on the 20th June, 1949, to  consider the  question  of allowances payable to the members  of  the Ruling  family.  However, before the Committee could  submit its report, the State of Tripura merged with and became part of India and was constituted into a separate Province  under the Chief Commissioner. After   merger,  the  then  Chief  Commissioner  Mr.   Hazra submitted  a proposal to the Ministry of States on the  12th April,  1951, recommending a revision of allowance  paid  to the 57 maintenance-holders. The ministry of States  did not  accept this proposal and refused to make any increase in the  total



expenditure  on the allowances to  the  maintenance-holders. ’This  order was passed on the 23rd May, 1951.   Later,  the then   ,officiating  Chief  Commissioner  Maj.    Chatterjee stopped  the  maintenance  allowances paid to  some  of  the maintenance,holders  without justification and that  led  to the appointment of another Committee to go into the  matter, but the Committee could never function with the result  that the  condition  of the majority of  the  maintenance-holders grew  worse  day  by day.  That is  why  the  present  eight petitioners  desire to file a suit against respondent No.  2 for appropriate reliefs.  They -want to implead the Union of India  also  to  that suit, because it is  their  case  that either the Ruler or the Union of India is responsible to pay them appropriate and adequate maintenance allowance. Before  filing  a suit in a competent court of  law  against respondent No. 2, the petitioners are required to obtain the sanction  of  the Union Government under s. 87B  C.P.C.,  as respondent No. 2 is a Ruler of a former Indian State  within ,the  meaning  of the said section.  A request made  by  the petitioners  for such sanction was rejected by  the  Central Government.  That is how the present petition has been filed challening   the   validity  of  the  said   section.    The petitioners  contend that the said section is  ultra  vires, because  it  contravenes  Arts.  14  and  19(1)(f)  of   the Constitution and as such, the condition precedent prescribed by  it which requires the previous sanction of  the  Central Government  before  filing a suit against the  Ruler  of  an Indian State therein mentioned, is invalid and  inoperative. That is the genesis of the present writ petition. At  the  hearing of this writ petition, Mr. Shukla  for  the petitioners  fairly  conceded  that  the  challenge  to  the validity   of  s.  87B,  C.P.C.,  on  the  ground  that   it contravenes  Art. 14 has been repelled by a recent  decision of  this  Court in Mohan Lal Jain v. His  Highness  Maharaja Shri Sawai Man Singhji(1).  He, however, attempted to  argue that some aspects of the problem had not been pressed before the  Court when it decided the case of Mohan Lal  Jain  (1), and  so, he wanted us to reconsider that question.  We  have not allowed Mr. Shukla to raise this contention, because  we are  satisfied  that the decision in Mohan Lal  Jain’s  case concludes  the  point  and it would  not  be  reasonable  to reconsider it as suggested by him.  We ought to add that  we are dealing with Mr. Shukla’s argument that s. 87B,  C.P.C., is  invalid  because it contravenes Art.  19(1)(f),  on  the basis  that  the  case of Mohan Lal  Jain(1)  has  correctly repelled the challenge against the said section ,under  Art. 14. (1)  [1962] 1 S.C.R. 702. 58 That  leaves  the  challenge  under Art.  19(1)  (f)  to  be considered. In dealing with this point, it will be necessary to examine the background, both historical and  legislative, of  s. 87B.  Section 87B(1) provides that the provisions  of s.  85  and of sub-ss. (1) and (3) of s. 86 shall  apply  in relation  to the Rulers of any former Indian State  as  they apply in relation to the Ruler of a foreign State.   Section 87B(2) defines a ’former Indian State’ and a "Ruler".  It is not  necessary to refer to these provisions, because  it  is common  ground that respondent No. 2 is a Ruler of a  former Indian State within the meaning of s. 87B(2). In appreciating the effect of s. 87B(1), it is necessary  to consider s. 86.  Section 86 deals with suits against foreign Rulers, Ambassadors and Envoys.  Section 86(1) provides that no Ruler of a foreign State may be sued in any court  other- wise  competent to try the suit, except with the consent  of



the  Central Government certified in writing by a  Secretary to that Government to that effect.  The proviso excepts from the application of s. 86(1) cases where tenants of immovable property seek to sue such a Ruler.  Section 86(2) lays  down that the consent prescribed by s. 86(1) may be given  either with  respect  to specified suits or  to  several  specified suits,  or with respect to all suits of any specified  class or classes, and it requires that the sanction should specify in the case of any suit or class of suits the court in which the Ruler may be used.  It then adds that such consent shall not  be  given unless it appears to the  Central  Government that  the  Ruler  satisfies one or the  other  of  the  four conditions prescribed by clauses (a) to (d).  Section  86(3) prohibits  the arrest of any Ruler of a foreign state  under the  Code and provides that except with the consent  of  the Central  Government certified in writing by a  Secretary  to that  Government,  no decree shall be executed  against  the property  of  any  such Ruler.  Section  86(4)  extends  the application of s. 86 to the persons specified in clauses (a) to (c) of that sub-section.  The result of the extension  of s.  86(1)  and (3) to the cases falling under s.  87B(1)  is that  the sanction of the Central Government is a  condition precedent to the institution of a suit against the Ruler  of any  former Indian State.  It is this requirement which  the petitioners have not been able to comply with in respect  of the suit which they intend to file against respondent No. 2, because  the  Central  Government  has  refused  to   accord sanction to the said intended suit. Now, the legislative background of the provisions  contained in  s.  86 and s. 87B is well known.  Prior to  the  present Constitution,  Part  IV  of  the  Code  of  Civil  Procedure contained provisions in respect of suits in specified cases. These cases were divided into three parts.  Section 79 to 82 covered  cases  of suits by or against the Crown  or  Public Officers  in  their official capacity.  Sections  83  to  87 dealt with suits by aliens and by or against foreign  Rulers and Rulers of Indian States; and 59 s.  88  had  reference to  interpleader  suits.   After  the Constitution  came  into force, the President  made  certain adaptations  by the Adaptations of Laws Order, 1950.   As  a result  of  Art.  372, the protection  afforded  to  Foreign Rulers  and Rulers of Indian States continued, and  that  is how s. 87B came to be enacted in the statute-book.  It is in the  light  of  this legislative background  that  the  plea raised by the petitioners in the present proceedings has  to be examined. The legislative background to which we have referred  cannot be  divorced from the historical background which is  to  be found for instance, in Art. 362.  This Article provides that in  the  exercise  of  the power of  Parliament  or  of  any legislature of any State to make laws or in the exercise  of the  executive power of the Union or of a State, due  regard shall  be had to the guarantee or assurance given under  any such  covenant or agreement as is referred to in clause  (1) of Art. 291 with respect to the personal rights,  privileges and  dignities  of  a Ruler of an Indian  State.   This  has reference  to the ,covenants and agreements which  had  been entered  into between the Central Government and the  Indian Princes  before  :all  the Indian  States  were  politically completely   assimilated  with  the  rest  of  India.    The privilege  conferred on the Rulers ,of former Indian  States has  its origin in these agreements and covenants.   One  of the privileges is that of extra territoriality and exemption from  civil  jurisdiction except with the  sanction  of  the



Central Government.  It was thought that the privilege which was  claimed by foreign Rulers and Rulers of  Indian  States prior to the independence of the country should be continued even  after  independence was attained and  the  States  had become  part  of India, and that is how in 1951,  the  Civil Procedure Code was amended and the present sections 86,  87, 87A and 87B came to be enacted in the present form. Considered in the light of this background, it is  difficult to  see how the petitioners can successfully  challenge  the validity of the provisions contained in s. 87B.  In the case of Mohan Lai Jain(1) this Court has held that the  ex-Rulers of Indian States form a class by themselves and the  special treatment given to them by the impugned provisions cannot be said to be based on unconstitutional discrimination.   There is, of course, discrimination between the ex-Rulers and  the rest  of the citizens of India, but that  discrimination  is justified  having regard to the historical  and  legislative background  to which we have just referred.  If that be  so, it  would  follow  that  the  restriction  imposed  on   the petitioners’  fundamental right guaranteed by Art.  19(1)(f) cannot  be  said  to be unreasonable.   The  restriction  in question  is  the  result  of the  necessity  to  treat  the agreements  entered into between the Central Government  and the   ex-Rulers   of  Indian,  States  as  valid   and   the desirability,  of giving effect to the assurances  given  to them during the (1) [1962] 1 S. C. R. 702. 60 course  of  negotiations between the Indian States  and  the Central  Government prior to the merger of the  States  with India.   We  have  to take into  account  the  events  which occurred with unprecedented swiftness after the 15th August, 1947, and we have to bear in mind the fact that the relevant negotiations  carried  on  by the  Central  Government  were inspired  by the sole object of bringing under  one  Central Government  the whole of this country including  the  former Indian  States.  Considered in the context of these  events, we  do  not  think it would be possible  to  hold  that  the specific provision made by s. 87B granting exemption to  the Rulers  of former Indian States from being sued except  with the  sanction of the Central Government, is  not  reasonable and  is not in the interests of the general public.   It  is true  that  the restriction works a hardship so far  as  the petitioners  are concerned; but balancing the said  hardship against  the  other  considerations to which  we  have  just referred, it would be difficult to sustain the argument that the section itself should be treated as unconstitutional. Before  we part with this matter, however, we would like  to invite the Central Government to consider seriously  whether it is necessary to allow s. 87B to operate prospectively for all  time.   The agreements made with the Rulers  of  Indian States,  may,  no  doubt,  have  to  be  accepted  and   the assurances  given  to  them may have to  be  observed.   But considered  broadly in the light of the basic  principle  of the  equality before law, it seems somewhat odd that s.  87B should continue to operate for all time.  For past  dealings and  transactions,  protection may justifiably be  given  to Rulers  of former Indian States; but the Central  Government may  examine  the question as to  whether  for  transactions subsequent to the 26th of January 1950, this protection need or  should  be  continued.  If under  the  Constitution  all citizens  are  equal, it may be desirable  to  confine  the- operation  of  s.  87B  to  past  transactions  and  not  to perpetuate  the anomaly of the distinction between the  rest of  the citizens and Rulers of former Indian  States.   With



the   passage   of   time,  the   validity   of   historical considerations on which s. 87B is founded will wear out  and the  continuance  of the said section in the Code  of  Civil Procedure may later be open to. serious challenge. There is also another aspect of the matter to which we  must refer in this connection.  In considering the question as to whether  sanction should be granted to a person who  intends to  sue  a Ruler of a former Indian State, it  is  advisable that the authority concerned should ordinarily, if not as  a matter  of  course,  allow such  sanction,  because  in  the present set-up it does not appear very satisfactory that  an intended  action against the Ruler of a former Indian  State should be stifled by refusing to grant the litigant sanction under  s.  87B.   Where  frivolous  claims  are  set  up  by intending litigants, refusal to 61 give sanction may be justified ; but where genuine  disputes arise between a citizen and a Ruler of a former Indian State and  these disputes, prima facie, appear to be triable in  a court  of  law, it would not be fair or just that  the  said citizen  should  be  prevented  from  inviting  a  court  of competent  jurisdiction  to deal with his dispute.   If  the power  to grant sanction is exercised in a sensible way  and is  not used for stifling claims which, are not  far-fetched or  frivolous, that may prevent the growth of discontent  in the  minds  of litigants against  the  artificial  provision prescribed  by s. 87B.  In the present proceedings, it  does appear,  prima  facie, that the petitioners have  a  genuine grievance  against  the  Central  Government’s  refusal  to, accord  sanction to them to get a judicial decision  on  the dispute  between them and respondent No. 2. That,  naturally is  a  matter  for  the  Central  Government  to   consider. However,  since  it  is  not  possible  to  accede  to   the petitioner’s  argument  that s. 87B is invalid,  we  see  no alternative  but  to  dismiss the  writ  petition.   In  the circumstances, there would be no order as to costs.           Petition dismissed. 62