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PETITIONER: PREM NATH KAUL

       Vs.

RESPONDENT: THE STATE OF JAMMU & KASHMIR

DATE OF JUDGMENT: 02/03/1959

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. DAS, SUDHI RANJAN (CJ) DAS, S.K. WANCHOO, K.N. HIDAYATULLAH, M.

CITATION:  1959 AIR  749            1959 SCR  Supl. (2) 270  CITATOR INFO :  R          1962 SC1737  (11)  RF         1972 SC1738  (16)  F          1973 SC 231  (15)  R          1976 SC1031  (11)  RF         1990 SC2072  (44)

ACT:        Landed   Estate,   Abolition   of-Validity   of   enactment-        Legislative  Competency  of Yuvaraj  Karan  Singh-Jammu  and        Kashmir Big Landed Estate Abolition Act, XVII of 2007.

HEADNOTE: This appeal challenged the validity of the Jammu and Kashmir Big  Landed  Estate Abolition Act, XVII Of  2007  which  was enacted  by  Yuvaraj  Karan Singh on October  17,  1950,  in exercise  of the powers vested in him by S. 5 of  the  Jammu and Kashmir Constitution Act 14 of 1996 (1930) and the final proclamation issued by Maharaja Hari Singh on June 20, 1949, by  which  he entrusted all his powers and function  to  the Yuvaraj.  The object of the Act was to improve  agricultural production by abolishing big landed estates and transferring land  to  the actual tillers of the soil.  The suit  out  of which the present appeal arises was brought by the appellant in a representative capacity for a declaration that the  Act was  void,  inoperative  and ultra vires  and  that  he  was entitled  to retain peaceful possession of his lands.   Both the  trial  Court  as also the High Court  in  appeal  found against  him and dismissed the suit.  Hence this  appeal  by special leave. The validity of the Act was challenged mainly on the  ground that Yuvaraj Karan Singh had no authority to promulgate  the Act.   It  was contended that (i) when Maharaja  Hari  Singh conveyed  his powers to the Yuvaraj by his  proclamation  of June  20, 1949, he was himself a constitutional monarch  and could  convey  no higher powers, (2) the  said  proclamation could  not  confer  on  the  Yuvaraj  the  powers  specified therein,  (3) the powers of the Yuvaraj  were  substantially limited by his own proclamation issued on November 25, 1949, by  which  he  sought to make applicable to  his  State  the

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Constitution  of India, that was soon to be adopted  by  its Constituent Assembly, in so far as it was applicable, (4) as a  result of the application of certain specified  Articles, including Art. 370 of the Constitution of India to the State of  Jammu  Kashmir,  the  Yuvaraj  became  a  constitutional monarch without any legislative authority or powers and  (5) the decision of the Constituent Assembly of the State not to pay  compensation was invalid since the Assembly itself  was not properly constituted. Held,  that  Yuvaraj Karan Singh, when lie  promulgated  the Act,  had  the power to do so and its  validity  was  beyond question. 271 It  was  indisputable  that  prior to  the  passing  of  the Independence  Act,  1947,  Maharaja  Hari  Singh  like   his predecessors, was an absolute monarch so far as the internal administration of his State was concerned.  Section 3 Of the Regulation 1 of 1991 (1934) issued by the Maharaja not  only preserved all his preexisting powers but also provided  that his  inherent right to make any regulation, proclamation  or ordinance would remain unaffected.  The Constitution Act  14 of  1996  (1939)  promulgated  by  him  did  not  alter  the position.   Sections 4 and 5 of that Act preserved  all  the powers  that he had under s. 3 of the Regulation 1  of  1991 and S. 72 preserved his inherent powers so that he  remained the same absolute monarch as he was before. With the lapse of British paramountcy on the passing of  the Independence  Act,  1947, the Maharaja continued to  be  the same  absolute monarch, subject to the agreements  saved  by the  proviso  to  S.  7  Of the Act,  and  in  the  eyes  of international  law could conceivably claim the status of  an independent sovereign. It  was unreasonable to suggest that the provisions  of  the Instrument  of Accession signed by the Maharaja  on  October 25,  1947,  affected  his  sovereignty, in  view  of  cl.  6 thereof,  which expressly recognised its continuance in  and over his State. There  was no substance in the argument that as a result  of his proclamation issued on March 5, 1948, which replaced the emergency  administration  by a popular  interim  Government headed by Sheik Mohammad Abdullah and constituted a  Council of Ministers who were to function as a cabinet, the Maharaja became  a constitutional monarch.  The cabinet had still  to function under the Constitution Act 14 of 1996 (1939)  under the overriding powers of the Maharaja. When  the Maharaja- on June 20, 1949, therefore, issued  the proclamation  authorising  the Yuvaraj to exercise  all  his powers,  although  for  a temporary period,  it  placed  the Yuvaraj  in  the  same  position  as  his  father  till  the proclamation  was  revoked.   The Maharaja  was  himself  an absolute  monarch and there could be no question as  to  his power of delegation. In  Re.  Delhi Laws Act, 1912, [1951] S.C.R.  747,  referred to. The proclamation issued by the Yuvaraj on November 25, 1949, did  not vary the constitutional position as it stood  after the execution of the Instrument of Accession by the Maharaja nor  could it in any way affect the authority  conferred  on the Yuvaraj by his father. The  contention  that the application of  certain  specified Articles  of  the Indian Constitution to the  State  by  the Constitution (Application to Jammu and Kashmir) Order (C. O. 10)  issued by the President on January 26,  1950,  affected the sovereign powers of the Yuvaraj was not correct. Neither  the scheme of Art. 370 nor the explanation  to  cl.

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(1) of that Article Contemplated that the Maharaja was to be a  constitutional ruler.  The temporary provisions  of  that Article were 272 based  on  the  assumption that  the  ultimate  relationship between India and the State should be finally determined  by the  Constituent  Assembly of the State  itself.   So,  that Article  could not, either expressly or by  implication,  be intended  to  limit the plenary legislative  powers  of  the Maharaja.   Till  the  Constituent Assembly  of  the  State, therefore,  made its decision, the Instrument  of  Accession must hold the field. The  initial formal application of Art. 385, which was  sub- sequently  deleted from the list of Articles applied to  the State,  could  not  justify  the  conclusion  that  it   had adversely affected the legislative powers of the Yuvaraj. There  was no substance in the contention that the  decision of  the  Constituent Assembly not to  pay  compensation  was invalid  as the Assembly itself was not properly  called  or constituted.   There  could be doubt that  the  Yuvaraj  was perfectly  competent to issue the proclamation  dated  April 20,  1951  in variation of the Maharaja’s, under  which  the Assembly was ultimately constituted, and so the Assembly was properly convened.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 152 of 1955. Appeal  by special leave from the judgment and  order  dated March 25, 1953, of the Jammu and Kashmir High Court in Civil First Appeal No. 4 of 2009. N.C. Chatterjee, Gopi Nath Kunzru and Naunit Lal, for the appellants. H.N.  Sanyal,  Additional  Solicitor  General  of  India, Jaswant  Singh, Advocate General for the State of Jammu  and Kashmir, R. H. Dhebar and T. M. Sen, for the respondent. 1959.  March 2. The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-This appeal by special leave arises  from a  suit filed by the appellant in a representative  capacity (Civil  Suit  No. 4 of 2008) against the State  of  Jammu  & Kashmir  praying for a declaration that the Jammu &  Kashmir Big  Landed Estate Abolition Act, XVII of 2007  (hereinafter called  the  Act) is void, inoperative and  ultra  vires  of Yuvaraj  Karan  Singh  who  enacted it  and  for  a  further declaration  that the appellant was entitled to  retain  the peaceful possession of his lands. 273 It  appears  that  the validity of  the  Act  was  similarly challenged by Maghar Singh by his suit filed on the Original Side of the High Court of Jammu & Kashmir (Civil Suit No. 59 of 2007); and Mr. Justice Kilam who had heard the said  suit had  rejected the plaintiff’s contentions and held that  the Act was valid. When the appellant’ suit came for trial before the  District Court  it was conceded on his behalf that the points  raised by  him against the validity of the Act had been decided  by Mr.  Justice Kilam and that, in view of the  said  decision, the  appellant could not usefully urge anything more  before the  District  Court.  The learned District  Judge  who  was bound by the decision of Mr. Justice Kilam applied it to the suit before him and held that the Act was valid and that the appellant  was not entitled to the two declarations  claimed by him.  In the result the appellant’s suit was dismissed. Against this decree the appellant preferred an appeal in the

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High Court of Jammu & Kashmir (Civil Appeal No. 4 of  2009). Maghar  Singh whose suit had been dismissed by  Mr.  Justice Kilam  had also preferred an appeal (No. 29 of 2008)  before the  High Court.  The two appeals were heard together  by  a -Division  Bench of the High Court which held that  the  Act was  valid and that the appellants were not entitled to  any declaration   claimed  by  them.   Both  the  appeals   were accordingly dismissed. Against  the decree passed by the High Court dismissing  his appeal the appellant applied to the High Court for leave  to appeal  to this Court.  The said application  was,  however, dismissed.    Thereupon  the  appellant  applied  for,   and obtained, special leave to appeal to this Court. In  dealing with this appeal it is necessary to  narrate  in some  detail the events which took place in Kashmir and  the constitutional  changes  which  followed them  in  order  to appreciate fully the background of the impugned legislation. A  clear  understanding of this background will help  us  to deal  with the appellant’s case in its  proper  perspective. In 1925 Maharaja 35 274 Hari  Singh succeeded Maharaja Pratap Singh as the Ruler  of Kashmir.  It appears that for some time prior to 1934  there was  public  agitation in Kashmir for the  establishment  of responsible government.  Presumably as a sequel to the  said agitation  Maharaja Hari Singh issued Regulation 1  of  1991 (1934).  The -Regulation began with the statement of  policy that  it  was  the declared intention  of  the  Maharaja  to provide for the association of his subjects in the matter of legislation and the administration of’ the State and that it was  in pursuance of the said intention that the  Regulation was  being  promulgated.  This Regulation  consisted  of  46 sections  which  dealt with the legislative,  executive  and judicial  powers  of the Maharaja himself, referred  to  the subjects which should be reserved from the operation of  the Regulation,  made  provision  for the  constitution  of  the Legislature of the State, conferred authority on the Council to  make rules for specified purposes and referred to  other relevant  and material topics.  It is relevant to  refer  to only  two sections of this Regulation.  Section  3  provides that  all  powers  legislative, executive  and  judicial  in relation to the State and its government are hereby declared to  be, and to have been always, inherent in  and  possessed and retained by His Highness the Maharaja of Jammu & Kashmir and  nothing contained in the Regulation shall affect or  be deemed  to  have affected the right and prerogative  of  His Highness  to  make and pass regulations,  proclamations  and ordinances by virtue of his inherent power.  Section 30 lays down that Do measure shall be deemed to have been passed  by the Praja Sabha until and unless His Highness has  signified his  assent  thereto.   The  Regulation  leaves  it  to  the absolute  discretion  of His Highness whether to  assent  to such a measure or not. Five  years  later  the Maharaja  promulgated  the  Jammu  & Kashmir  Constitution  Act  14 of  1996  (1939).   From  the preamble  to this Constitution it appears that,  before  its promulgation,  the  Maharaja had issued  a  proclamation  on February  11, -1939, in which he had announced his  decision as to the further steps to 275 be taken to enable his subjects to make orderly progress  in the direction of attaining the ideal of active  co-operation between  the executive and the Legislature of the  State  in ministering  to  the maximum happiness of  the  people.   In

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accordance  with  this desire the text of  the  Constitution contained in Regulation 1 of 1991 was thoroughly  overhauled and an attempt was made to bring the amended text into  line with  that of similar Constitutions of its type.  This  Con- stitution  is  divided  into  six  parts  and  includes   78 sections.   Part 1 is introductory.  Part 2 deals  with  the executive;  Part  3 with the Legislature; Part  4  with  the Judicature;  Part 5 contains miscellaneous  provisions;  and Part   6  provides  for  repeal  and  saving  and   includes transitional  provisions.   It is significant that s.  5  of this  Act, like s. 3 of the earlier  Regulation,  recognises and preserves all the inherent powers of His Highness, while s.  4 provides that the State was to be governed by  and  in the  name  of His Highness, and all  rights,  authority  and jurisdiction  which  appertain  or  are  incidental  to  the government  of  the State are exercisable  by  His  Highness except  in so far as may be otherwise provided by  or  under the  Act  or as may be otherwise directed by  His  Highness. The other provisions of the Act are all subject to the over- riding  powers of His Highness specifically preserved by  s. 5.  As  we  will  point  out  later  on,  in  substance  the Constitutional powers of the Maharaja under the present  Act were exactly the same as those under the earlier Act. While the State of Jammu & Kashmir was being governed by the Maharaja and the second Constitution as amended from time to time  was  in operation, political events were  moving  very fast  in  India and they culminated in the  passing  of  the Indian  Independence Act, 1947.  Under s. 7 (1) (b) of  this Act  the  suzerainty of His Majesty over the  Indian  States lapsed  and  with it lapsed all treaties and  agreements  in force  at  the date of the passing of the  Act  between  His Majesty and the Rulers of the Indian States, all obligations of  His Majesty existing at that date towards Indian  States or the Rulers thereof, and all powers, 276 rights, authority or jurisdiction exercisable by His Majesty at  that date in or in relation to Indian States by  treaty, grant,  usage, sufferance or otherwise.  The proviso to  the said  section,  however,  prescribed  that,  notwithstanding anything  in para. (b), effect shall, as nearly as  may  be, continue to be given to the provisions of any such agreement as   therein  referred  to  in  relation  to  the   subjects enumerated  in the proviso or other like matters  until  the provisions  in  question are denounced by the Ruler  of  the Indian State on the one hand or by the Dominion or  Province concerned on the other hand, or are superseded by subsequent agreements.  Thus, with the lapse of British paramountcy the State of Jammu & Kashmir, like the other Indian States,  was theoretically free from the limitations imposed by the  said paramountcy  subject to the provisions of the  proviso  just mentioned. On  October  22,  1947,  the  tribal  raiders  invaded   the territory  of  the  State; and  this  invasion  presented  a problem of unprecedented gravity before the Maharaja.   With the progress of the invading raiders the safety of the State was  itself in grave jeopardy and it appeared that,  if  the march  of the invaders was not successfully  resisted,  they would soon knock at the doors of Srinagar itself.  This  act of  aggression  set in motion a chain  of  political  events which   ultimately   changed  the  history   and   political constitution of Kashmir with unexpected speed. On  October 25, 1947, the Maharaja signed an  Instrument  of Accession  with India which had then become  an  Independent Dominion.   By  the  First  Clause  of  the  Instrument  the Maharaja  declared  that he had acceded to the  Dominion  of

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India  with the intent that the Governor-General  of  India, the  Dominion, Legislature, the Federal Court and any  other Dominion  Authority  established  for  the  purpose  of  the Dominion  shall, by virtue of the Instrument  of  Accession, subject  always  to the terms thereof and for  the  purposes only  of the Dominion, exercise in relation to the State  of Jammu  & Kashmir 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 August 15, 1947.                             277 We may usefully refer to some other relevant clauses of this Instrument.   By el. 3 the Maharaja agreed that the  matters specified  in  the Schedule attached to  the  Instrument  of Accession  were  the  matters  with  respect  to  which  the Dominion Legislature may make laws for this State.  Clause 5 provides  that  the Instrument shall not be  varied  by  any amendment  of the Government of India Act, 1935, or  of  the Indian  Independence  Act, 1947, unless  such  amendment  is accepted  by the Maharaja by an Instrument supplementary  to the  original  Instrument  of Accession.  By el.  7  it  was agreed that the Maharaja would not be deemed to be committed to  the acceptance of any future Constitution of  India  nor would  his discretion be fettered to enter  into  agreements with   the  Government  of  India  under  any  such   future Constitution.   Clause  8 is very important.  It  says  that nothing  in  the Instrument affects the continuance  of  the Maharaja’s  sovereignty in and over his State, or,  save  as provided  by  or under the Instrument, the exercise  of  any powers, authority and rights then enjoyed by him as Ruler of the  State, or the validity of any law then in force in  the State.   The Schedule attached to the Instrument  refers  to four  topics, defence, external affairs, communications  and ancillary,  and under these topics twenty matters have  been serially  enumerated  as  those  in  respect  of  which  the Dominion  Legislature  had the power to make  laws  for  the State.   Thus, by the Instrument of Accession, the  Maharaja took  the very important step of recognising the  fact  that his State was a part of the Dominion of India. Meanwhile,, the invasion of the State had created tremendous popular fervour and patriotic feelings in resisting the  act of aggression and this popular feeling inevitably tended  to exercise   pressure   on  the   Maharaja   for   introducing responsible  and  popular  government  in  the  State.   The Maharaja  tried  to pacify the popular demand by  issuing  a proclamation  on  March 5, 1948.  By  this  proclamation  he stated that in accordance with the traditions of his dynasty he had from time to time provided for increasing association of his people with the administration of the State with  the object of 278 realising  the  goal of full responsible  government  at  as early  a  date as possible, and he added that he  had  noted with  gratification and pride the progress made so  far  and the  legitimate  desire  of his  people  for  the  immediate establishment  of a fully democratic constitution  based  on adult franchise with a hereditary  Ruler from his dynasty as the  constitutional head of an executive responsible to  the Legislature.   It appears that before this proclamation  was issued  the Maharaja had already appointed  Sheikh  Mohammed Abdullah  who was then the popular leader of the  people  as the  head  of  the emergency administration.   By  the  pro- clamation the Maharaja replaced the emergency administration by a popular interim government and provided for its powers, duties  and  functions  pending the  formation  of  a  fully democratic  constitution.   Clause  1  of  the  proclamation

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provides for the composition of the Ministry, whereas by cl. 2  the  Prime Minister and other ministers are  required  to function  as  a cabinet and act on the  principle  of  joint responsibility.  A Dewan appointed by the Maharaja is  to-be a member of the Cabinet.  Clause 4 provides that the Council of Ministers shall take appropriate steps, as soon as resto- ration of normal conditions has been completed, to convene a National Assembly based on adult franchise having due regard to  the  principle that the number of  representatives  from each   voting  area  should,  as  far  as  practicable,   be proportionate to the population of that area.  Clause 5 then lays down that the Constitution to be framed by the National Assembly   shall   provide  adequate  safeguards   for   the minorities  and contain appropriate provisions  guaranteeing freedom  of  conscience, freedom of speech  and  freedom  of assembly.  Clause 6 states that when the work of framing the Constitution  is  completed  by the  National  Assembly  the Constitution  would  be  submitted through  the  Council  of Ministers   to  the  Maharaja  for  his   acceptance.    The proclamation  ended  with the expression of  hope  that  the formation   of   a  popular  interim  government   and   the inauguration  in  the  near future  of  a  fully  democratic Constitution would ensure the contentment, happiness and the moral and material advancement 270 of the people of the State. Through under this  proclamation a popular interim government was set up, the  constitutional position   still  was  that  the  popular   government   had theoretically  to function under the Constitution  of  1939. It  appears  that  before the popular  government  was  thus installed   in   office  the  Maharaja  had   deputed   four representatives  of the State to represent the State in  the Constituent  Assembly  called in the Dominion  of  India  to frame the Constitution of India. After  the popular interim government began to function  the political  events  in the State gathered  momentum  and  the public  began  to clamour for the framing  of  a  democratic Constitution  at an early date.  When the atmosphere in  the State  was  thus surcharged, the Maharaja issued  his  final proclamation  on  June 20, 1949, by which  he  entrusted  to Yuvaraj Karan Singh Bahadur all his powers and functions  in regard to the government of the State because he had decided for  reasons  of health to leave the State for  a  temporary period.  " Now therefore I hereby direct and declare ", says the  proclamation,  "  all  powers  and  functions   whether legislative, executive or judicial which are exercisable  by me in relation to the State and its government including  in particular  my  right  and prerogative of  making  laws,  of issuing proclamations, orders and ordinances, or  remitting, commuting or reducing sentences and of pardoning  offenders, shall,  during the period of my absence from the  State,  be exercisable by Yuvaraj Karan Singh Bahadur ". As  subsequent events  show this was the last official act of the  Maharaja before he left the State. After  Yuvaraj  Karan Singh took the  Maharaja’s  place  and began  to function under the powers assigned to him  by  the said proclamation, the interim popular government  installed earlier  was functioning as before.  On November  25,  1949, Yuvaraj  Karan  Singh  issued a  proclamation  by  which  he declared and directed that the Constitution of India shortly to be adopted by the Constituent Assembly of India shall, in so far as it is applicable to the State of Jammu &  Kashmir, govern the constitutional relationship between 280 the  State and the contemplated Union of India and shall  be

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enforced  in the State by him, his heirs and  successors  in accordance  with  the  tenor of  its  provisions.   He  also declared  that  the  provisions of  the  said   Constitution shall,  as from the date of its commencement, supersede  and abrogate  all other constitutional  provisions  inconsistent therewith  which  were  then in force  in  the  State.   The preamble to this proclamation shows that it was based on the conviction  that  the best interests of the  State  required that the constitutional relationship established between the State  and the Dominion of India should be continued as  be- tween the State and the contemplated Union of India; and  it refers  to the fact that the Constituent Assembly  of  India which had framed the Constitution of India included the duly appointed  representatives  of the State and that  the  said Constitution  provided  a  suitable basis  to  continue  the constitutional  relationship  between  the  State  and   the contemplated  Union  of  India.  On January  26,  1950,  the Constitution of India came into force. This   proclamation   was  followed  by   the   Constitution (Application  to  Jammu & Kashmir) Order, 1950  (C.  O.  10) which  was issued on January 26, 1950, by the  President  in consultation  with the Government of Jammu & Kashmir and  in exercise  of the powers conferred by cl. (1) of Art. 370  of the  Constitution.  It came into force at once.  Clause  (2) of this order provides that for the purposes of sub-cl.  (i) of  Art. 370 of the Constitution, the matters  specified  in the  First  Schedule  to the  Order  correspond  to  matters specified  in  the  Instrument of  Accession  governing  the accession of the State of Jammu & Kashmir to the Dominion of India  as  the  matters with regard to  which  the  Dominion Legislature  may make laws for that State;  and  accordingly the power of Parliament to make laws for that State shall be limited to the matters specified in the said First Schedule. Clause  (3) provides that, in addition to the provisions  of Art.   1  and Art. 370 of the Constitution  the  only  other provisions  of  the Constitution which shall  apply  to  the State of Jammu & Kashmir shall be those specified in the 281 Second  Schedule to the Order and shall so apply subject  to the  exceptions  and  modifications specified  in  the  said Schedule.   The  First Schedule to the  Order  specified  96 items occurring in the Union List; while the Second Schedule set out the Articles of the Constitution made applicable  to the  State together with the exceptions  and  modifications. Later  on  we will have occasion to refer to some  of  these Articles on which the appellant has relied. It  appears that, after the interim popular Government  took office, the Revenue Minister made a statement of policy at a meeting of the special staff of revenue officers held in the Governor’s  office on August 13, 1950.  The Minister  stated that  whatever the difficulties, the Cabinet was  determined to  go ahead and transfer the proprietorship of the land  to the   tiller.   The  main  idea  underlying   the   proposed agricultural  reform was that a land-lord shall not  possess more  than 20 acres of agricultural land.  In  addition,  he would  be  allowed  8 kanals for his use and  Sagzar  and  4 kanals  for his second house if in existence, and 10  kanals for  Bedzar  or  Safedzar.   It  was  contemplated  that   a committee would be appointed to settle the details and other matters incidental to the said agricultural plan. It  was presumably in pursuance of this plan adopted by  the interim  Cabinet  that the Act was  promulgated  by  Yuvaraj Karan  Singh on October 17, 1950.  The preamble to  the  Act shows that it was promulgated because no lasting improvement in  agricultural  production  and  efficiency  was  possible

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without the removal of the intermediaries between the tiller of  the  soil  and  the State, and so  for  the  purpose  of improving  agricultural  production,  it  was  expedient  to provide  for  the abolition of such proprietors as  own  big landed estates and to transfer the land held by them to  the actual  tiller.  The Yuvaraj enacted the law in exercise  of the -powers vested in him under s. of the.  Constitution Act of  1996 and the’proclamation issued by Maharaja Hari  Singh on  June  20,  1949.  The Act consists of  47  sections  and purports to, carry out its  36 282 policy of improving the agricultural production of the State by  providing for the extinction of the proprietors’  titles and the transfer of the lands to the tillers, and by setting up  a self-contained machinery for the carry ing out of  the scheme  of  the  Act and for settlement  of  all  incidental disputes arising thereunder. For the purpose of this appeal, however, it is necessary  to refer  to a few relevant sections which deal with the  broad features  of the extinction of the proprietors’  rights  and the transfer of lands to the tillers.  S. 2 of the Act inter alia  defines  land,  proprietor  and  tiller,  while  s.  3 excludes  certain specified lands from the operation of  the Act.   Section 4, sub-s. (1) provides for the extinction  of the  right  of ownership in certain lands and it  lays  down that not withstanding anything contained in any law for  the time  being  in  force, the right of  ownership  held  by  a proprietor  in land other than the land mentioned in  sub-s. (2)  shall,  subject  to the other provisions  of  the  Act, extinguish  and cease to vest in him from the date  the  Act comes into force.  Sub-section (2) of s. 4 enumerates  lands which  are excluded from the operation of sub-s. (1).   They are  (a)  units of land not exceeding 182  kanals  including residential  sites, Bedzars and Safedzars,  (b)  Kahikrishmi areas,  Araks, Kaps and unculturable wastes including  those used  for  raising fuel or fodder, and  (c)  orchards.   The proviso to sub-s. (2) gives government the power to  dispose of  lands  mentioned in cl. (b) in such a manner as  may  be recommended by the committee to be set up for that  purpose. Section 26 of the Act deals with the question of payment  to the  proprietors.  It provides that there shall,  until  the Constituent  Assembly of the State settles the  question  of compensation,  with respect to the land  expropriated  under this Act, be paid by the government to every proprietor  who has been expropriated, an annuity in the manner indicated in the section.  In other words, subject to the final  decision of the Constituent Assembly, s. 26 contemplates the  payment of annuity to the expropriated proprietors according to  the scale  prescribed  in  the section.  With the  rest  of  the sections we are not concerned in the present appeal. 283 After  the  Act  was  enacted by the  yuvaraj  he  issued  a proclamation on April 20, 1951, directing that a Constituent Assembly consisting of representatives of the people elected on  the  basis  of  adult  franchise  shall  be  constituted forthwith for the purpose of framing a Constitution for  the State  of  Jammu & Kashmir.  The proclamation sets  out  the manner  in  which members of the said  Constituent  Assembly would be elected and makes provisions for the holding of the said elections.  It also authorised the Constituent Assembly to  frame its own agenda and make rules for  regulating  its procedure and the conduct of its business.  The preamble  to this proclamation shows that the Yuvaraj was satisfied  that it  was the general desire of the people that a  Constituent

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Assembly  should  be brought into being for the  purpose  of framing  a  Constitution  for  the State  and  that  it  was commonly felt that the convening of the said Assembly  could no  longer be delayed without detriment to the future  well- being of the State.  The Yuvaraj also felt no doubt that the proclamation  issued  by the Maharaja on March 5,  1948,  in regard to the convening of the national assembly as per cls. 4  to 6 no longer met the requirements of the  situation  in the  State.   Thus this proclamation was  intended  to  meet expeditiously  the  popular  demand for  the  framing  of  a democratic  constitution ; and it indicates that a  decisive stage  bad  been  reached in the political  history  of  the State. In accordance with this proclamation a Constituent  Assembly was  elected and it framed the Constitution for  the  State. By  the Constitution thus framed the hereditary rule of  the State  was  abolished,  and a provision  was  made  for  the election  of  a  Sadar-i-Riyasat to be at the  head  of  the State.  On November 13, 1952, the Yuvaraj was elected to the office  of  the Sadar-i-Riyasat and with  his  election  the dynastic rule of Maharaja Hari Singh came to an end. On November 15, 1952, the Constitution (Application to Jammu &  Kashmir)  Second  Amendment Order, 1952 (C.  O.  43)  was issued;  and  it came into force on November 17,  1952.   By this Order the earlier Order of 1950 was amended as a result of which all references 284 in  the said Order to the Rajpramukh shall be  construed  as references  to  the  Sadar-i-Riyasat  of  Jammu  &  Kashmir. Similarly  in  the Second Schedule to the  said  Order  some amendments were made.  On the ,same day a Declaration (C. O. 44)  was made by the President under Art. 370, sub-art.  (3) of  the Constitution that from November 17, 1952,  the  said Art.  370 shall be operative with the modification that  for the explanation in el. (1) thereof the new explanation shall be substituted.  The effect of this new explanation was that the  government of the State meant the person for  the  time being recognised by the President, on the recommendation  of the  Legislative  Assembly  of the State,  as  the  Sadar-i- Riyasat  of  Jammu  & Kashmir acting on the  advice  of  the Council  of  Ministers of the State for the  time  being  in force.   On  November  18, 1952,  Yuvaraj  Karan  Singh  was recognised as the Sadar-i-Riyasat of Jammu & Kashmir. On May 14, 1954, another Constitution (Application to  Jammu & Kashmir) Order (C. O. 48) was made by the President  which inter  alia  applied  Art. 31A and 31B  to  the  State  with certain  modifications  and included the Act  in  the  Ninth Schedule  of  the Constitution.  The last  two  Orders  were issued  subsequent to the enactment of the Act and  so  they would  have no bearing on the decision of the points  raised before us.  We have briefly referred to them for the sake of completing the narrative of the material events. The  validity of the Act is impeached mainly on  the  ground that Yuvaraj Karan Singh had no authority to promulgate  the said  Act.  It is this argument which has been urged  before us by Mr. Chatterjee in different and alternative forms that needs  careful  examination.  The first attack  against  the competence of Yuvaraj Karan Singh proceeds on the assumption that  at  the  time when Maharaja Hari  Singh  conveyed  his powers  to Yuvaraj Karan Singh by his proclamation  of  June 20,  1949,  he  was himself no more  than  a  constitutional monarch  and as such he could convey to Yuvaraj Karan  Singh no  higher  powers.  Let us first deal with  this  argument. Prior  to  the passing of the Independence  Act,  1947,  the sovereignty of Maharaja

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                           285 Hari Singh over the State of Jammu & Kashmir was subject  to such  limitations as were constitutionally imposed on it  by the paramountcy of the British Crown and by the treaties and agreements entered into between the Rulers of the State  and the  British Government.  It cannot be disputed that so  far as  the internal administration and governance of the  State were  concerned Maharaja Hari Singh, like his  predecessors, was  an absolute monarch ; and that all powers  legislative, executive  and  judicial in relation to his  State  and  its governance inherently vested in him.  This position has been emphatically  brought  out by s. 3 of Regulation 1  of  1991 (1934).  Though by this Regulation Maharaja Hari Singh  gave effect  to his intention to provide for the  association  of his subjects in the matter of legislation and administration of  the State, by s. 3 he fully preserved in himself all  of his pre-existing legislative, executive and judicial powers. Section  3 not only preserves the said powers but  expressly provides  that  nothing contained in  the  Regulation  shall affect  or  be  deemed  to  have  affected  the  right   and prerogative  of His Highness to make and  pass  regulations, proclamations  and  ordinances  by virtue  of  his  inherent authority.  It is thus clear that the rest of the provisions of  the  Regulation were subject to  the  overriding  powers preserved by His Highness. It is, however, urged that this constitutional position  was substantially altered by the subsequent Constitution Act  of 1996  (14 of 1996).  We are unable to accept this  argument. Sections  4 and 5 of this Act in terms continue to  preserve all  the powers legislative, executive and judicial as  well as the right and prerogative of His Highness just as much as s.  3 of Regulation 1 of 1991.  It is significant  that  the provisions  of Pt.  II which deals with the executive,  like those  of Pt.  III which deals with the  Legislature,  begin with  the  express provision that they are  subject  to  the provisions  of  ss.  4 and 5. In  other  words,  the  powers conferred on the executive and the Legislature, limited  and qualified  as  they are, are made expressly subject  to  the overriding powers of His Highness, 286 Besides,  there  are specific provisions in  the  Act  which clearly  emphasise  the  preservation of  the  said  powers. Section 24 which enumerates the reserved matters over  which the  Praja Sabha had no authority to legis late provides  by cl.  (i) that the provisions of the Act and the  rules  made thereunder  and  their repeal or   modifications  constitute reserved  matters.  Besides cl.(j) confers on  His  Highness the authority to add other specified matters to the list  of reserved  matters from time to time.  These provisions  make it  clear  that  his  Highness could  enlarge  the  list  of reserved  matters thereby limiting the jurisdiction  of  the Praja Sabha.  Similarly the legislative procedure prescribed by s. 31, sub-ss. (2) and (3) clearly shows that it is  only such  bills as received the assent of His Highness that  be- came law, His Highness’s power to assent or not to assent to the bills submitted to him being absolutely unfettered.  The ordinances  issued  by His Highness under s.  38  cannot  be repealed or altered by the Praja Sabha by virtue of s. 39  ; and lastly s. 72 expressly preserves the inherent power  and prerogative  of  His Highness.  Thus there can be  no  doubt that  though  this Act marked the second step taken  by  His Highness  in actively associating his subjects with the  ad- ministration  of  the State, it did not  constitute  even  a partial surrender by His Highness of his sovereign rights in favour  of the Praja Sabha.  So far as the said  powers  are

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concerned,  the  constitutional position under this  Act  is substantially the same as under the earlier Act. It  is  contended  by Mr. Chatterjee  that  the  prerogative rights  which  are  preserved by ss. 5 and 72  of  this  Act represent only such rights as had not been entrusted to  the Praja Sabha and in support of this contention he referred us to  the observation made by Dicey that "  the  discretionary authority  of the Crown originates generally not in  Act  of Parliament,  but in the prerogatives term which  has  caused more  perplexity  to  students  than  any  other  expression referring  to the constitution.  The prerogative appears  to be both historically and as a matter of actual fact  nothing else than the residue of discretionary or arbitrary 287 authority,  which it any given time is legally left  in  the hands  of  the Crown"(1).  This observation has  been  cited with approval by the House of Lords in the case of Attorney- General v. De Keyser’s Royal Hotel Ltd. (2).  We do not  see how  this  statement  can    assist  us  in  determining the constitutional  status,  and the extent of  the  powers,  of Maharaja  Hari  Singh in relation to the governance  of  the State.    The  said  discussion  in  Dicey’s  treatise   has reference to the special features of the history of  English constitutional development; and it would naturally be of  no relevance in dealing with the effect of the Constitution  of 1996 with which we are concerned.  As we have just indicated this Constitution emphatically brings out the fact that  the Maharaja  was an absolute monarch and in him vested all  the legislative,  executive and judicial powers along  with  the prerogative rights mentioned in ss. 5 and 72. Whilst  this  was  the  true  constitutional  position   the Independence   Act,   1947,  was  passed  by   the   British Parliament;  and with the lapse of the  British  paramountcy the   Rulers  of  Indian  States  were  released  from   the limitations  imposed  on  their  sovereignty  by  the   said paramountcy  of  the British Crown and by  the  treaties  in force  between the British Government and the  States;  this was,  however, subject to the proviso prescribed by s. 7  of the  Independence Act under which effect had to be given  to the  provisions of the agreements specified in the  proviso, until  they  were denounced by the Rulers of the  States  or were  superseded by subsequent agreements.  In  the  result, subject  to  the agreements saved by the  proviso,  Maharaja Hari Singh continued to be an absolute monarch of the State, and  in the eyes of international law he  might  conceivably have  claimed  the  status of a  sovereign  and  independent State.  But it is urged that the sovereignty of the  Maharaj was   considerably  affected  by  the  provisions   of   the Instrument of Accession which he signed on October 25, 1947. This argument is clearly untenable.  It is true that by  cl. I of the (1)  Dicey on " Law of the Constitution ", 9th Ed., P. 424. (2)  [1920] A.C. 508, 526. 288 Instrument  of  Accession  His  Highness  conceded  to   the authorities  mentioned  in  the said  clause  the  right  to exercise  in relation to his State such functions as may  be vested  in  them by or under the Government of  India   Act, 1935,  as in force in the said Dominion on August 15,  1947, but  this was subject to the other terms of the   Instrument of Accession itself; and el. 6 of the Instrument clearly and expressly  recognised the continuance of the sovereignty  of His  Highness  in and over his State.  We  must,  therefore, reject the argument that the execution of the Instrument  of Accession affected in any manner the legislative,  executive

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and judicial powers in regard to the government of the State which then vested in the Ruler of the State. There is one more argument which has been urged before us on the  question of Maharaja Hari Singh’s powers.  It  is  said that  when  Maharaja Hari Singh issued his  proclamation  on March  5, 1948, replacing the emergency administration by  a popular   interim  government  headed  by  Sheikh   Mohammad Abdullah and constituting a Council of Ministers who were to function  as  a Cabinet and act on the  principle  of  joint responsibility, he virtually introduced a popular democratic government  in the State, surrendered his sovereign  rights, and became a constitutional monarch.  There is no  substance in this argument.  The proclamation merely shows that, under pressure of public opinion and as a result of the  difficult and delicate problem raised by the tribal raid, the Maharaja very  wisely chose to entrust the actual  administration  of the  government to the charge of a popular Cabinet; but  the description  of the Cabinet as a popular interim  government did not make the said Cabinet a popular Cabinet in the  true constitutional  sense  of the expression.  The  Cabinet  had still  to  function under ,the Constitution Act 14  of  1996 (1939) and whatever policies it pursued, it had to act under the  overriding  powers of His Highness.  It is  thus  clear that until the Maharaja issued his proclamation on June  20, 1949, all his powers legislative, executive and judicial  as well  as his right and prerogative vested in him as  before. That is why the argument that Maharaja, 289 Hari Singh had surrendered his sovereign powers in favour of the Praja Sabha and the popular interim government,  thereby accepting  the status of a constitutional monarch cannot  be upheld. The  next point which calls for our decision is .  What  was the effect of the proclamation issued by Maharaja Hari Singh in  favour  of Yuvaraj Karan Singh on June 20,  1949  ?  The terms of this proclamation have already been set out by  us. There is no doubt that, during the temporary period that the Maharaja wanted to leave the State for reasons of health, he conferred  on  Yuvaraj  Karan  Singh  all  his  powers   and functions  in regard to the government of the State.   Since the  Maharaja was himself an absolute monarch, there was  no fetter  or limitation on his power to appoint somebody  else to  exercise  all  or  any of  his  powers.   There  was  no authority or tribunal in the State which could question  his right  or  power to adopt such a course.  As  Chief  Justice Kania  has  observed  in Re: Delhi Laws Act, 1912  (1)  "  A legislative body which is sovereign like an autocratic Ruler has  power  to  do anything.  It may, like a  Ruler,  by  an individual decision, direct that a certain person may be put to  death  or a certain property may be taken  over  by  the State.  A body of such character may have power to  nominate someone  who  can exercise all its powers and make  all  its decisions.  This is possible to be done because there is  no authority or tribunal which can question the right or  power of  the  authority to do so ". Similarly, Mahajan,  J.,  has observed  in  the same case that " The  Parliament  being  a legal  omnipotent  despot, apart -from being  a  legislature simpliciter,  it  can  in exercise of  its  sovereign  power delegate its legislative functions or even create new bodies conferring  on  them power to make laws "; and  the  learned Judge  added  that  "  whether it  exercises  its  power  of delegation  of legislative power in its capacity as  a  mere legislature  or in its capacity as an omnipotent despot,  it is  not  possible to test it on the touchstone  of  judicial precedent  or  judicial  scrutiny as courts  of  justice  in

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England cannot inquire into it ". In his judgment  Mukherjea J., has also made similar (1)[1951] S.C.R. 747. 765. 766, 889, 969. 37 290 observations  after quoting the words of Sir Edward     Coke in  regard  to  the " transcendent and  absolute  power  and jurisdiction  of Parliament ". What is true of  the  British Parliament  would be truer about an  absolute  and  despotic monarch, the exercise of whose J.  paramount   power  as   a sovereign  is  not subject to any  popular  and  legislative control.   If  that be the true position,  the  proclamation issued  by  Maharaja Hari Singh  authorising  Yuvaraj  Karan Singh to exercise all his -powers would clothe him with  all such  powers  and he would be in the same  position  as  his father so long as the proclamation stood. Besides, it would be permissible to observe that though  the proclamation purports to have been issued on the ground that Maharaja  Hari Singh was leaving the State for  a  temporary period  for reasons of health, it was clear even  then  that the  temporary  departure of the Maharaja really  meant  his permanent retirement from the State.  It was realised by him as  much  as  by his subjects that to face  the  stress  and strain  caused by the unusual problems raised by the act  of aggression  against  the  State, it was  necessary  that  he should  quit and young Yuvaraj Karan Singh should  take  his place.  Thus considered the proclamation really amounted  to his  abdication  and installation by him  of  Yuvaraj  Karan Singh  as  the  Ruler of the State.   It  is,  however,  not necessary to consider any further this aspect of the  matter in  dealing  with  the authority  of  Yuvaraj  Karan  Singh, because,  as  we  have just held, Maharaja  Hari  Singh  was competent to delegate his powers to Yuvaraj Karan Singh  for a temporary period as his proclamation purported to do;  and by  virtue  of  such delegation,  Yuvaraj  Karan  Singh  was clothed with all the authority which his father possessed as the- Ruler of the State until the proclamation was  revoked. Therefore   the   argument  that   Maharaja   Hari   Singh’s proclamation  issued  on June 20, 1949, did  not  confer  on Yuvaraj Karan Singh the specified powers cannot be accepted. The  next  contention is that the powers  of  Yuvaraj  Karan Singh were substantially limited by the proclamation  issued by  him on November 25, 1949.  We are not impressed even  by this argument.  By this 291 proclamation   Yuvaraj   Karan  Singh  purported   to   make applicable to his State the Constitution of India which  was shortly  going to be adopted by the Constituent Assembly  of India  in  so far as was applicable; in  other  words,  this proclamation  did not carry the constitutional position  any further  than  where it stood after and as a result  of  the execution  of the  Instrument of Accession by  Maharaja Hari Singh.   It  is  thus clear that the  proclamation  did  not affect  Yuvaraj  Karan Singh’s authority and powers  as  the Ruler  of the State which had been conferred on him  by  the proclamation of his father issued in that behalf. Mr.  Chatterjee, however, has very seriously pressed  before us  his contention that, as a result of the  application  of certain specified articles of the Constitution to the  State of  Jammu  &  Kashmir, all  vestiges  of  sovereignty  which Yuvaraj Karan Singh could have claimed had vanished; and  in consequence he had become merely a constitutional monarch of the  State  without  any legislative  authority  or  powers. Indeed  it is this part of the case on which Mr.  Chatterjee placed considerable emphasis.  In this connection, it  would

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be relevant to recall that by the Constitution Order 10,  in addition to the provisions of Art.  1 and Art. 370,  certain other provisions of the Constitution were made applicable to the State with exceptions and modifications as specified  in the  Second Schedule.  Articles 245, 254 and 255 as well  as Art.  246 as modified from Pt.  XI of the Constitution  were applied to the State.  Similarly from Pt.  XIX Art. 366  was applied,  and from Pt.  XXI Arts. 370 and 385 were  applied. In this connection it is also necessary to bear in mind that Pt.   VI which deals with the States in Pt.  A of the  First Schedule  has  not  been applied, nor  has  Pt.   VII  which consisted  of Art. 238 been applied.  Art. 238 provides  for the application of provisions of Pt.  VI to States in Pt.  B of the First Schedule.  Schedule Seven which consists of the three  Legislative Lists has also not been applied.   It  is thus  clear  that though by the application of Art.   I  the State  became  a  part of the territory of  India  and  con- stituted a State under Part B, the provisions of 292 Pt. VI and Pt.  VII did not apply to it nor did the Schedule prescribing  the three Legislative Lists.  This fact  is  of considerable importance and significance in dealing with the appellant’s contention.  Since Mr. Chatterjee has strongly relied on the application of Art. 370 of the Constitution to the State  in support  of his argument that the Yuvaraj bad ceased to hold the plenary legislative   powers,  it  is  necessary  to   examine   the provisions  of this Article and their effect.  This  Article was  intended to make temporary provisions with  respect  to the State of Jammu & Kashmir.  It reads thus: "   Art.   370:  (1)  Notwithstanding   anything   in   this Constitution,- (a)the  provisions  of  article 238  shall  not  apply  in relation to the State of Jammu & Kashmir; (b)the power of Parliament to make laws for the said State shall be limited to- (i)those  matters  in the Union List and  the  Con-current List  which,  in  consultation with the  Government  of  the State,  are  declared  by the  President  to  correspond  to matters  specified in the Instrument of Accession  governing the  accession of the State to the Dominion of India as  the matters  with respect to which the Dominion Legislature  may make laws for that State; and (ii)such  other  matters  in the said Lists  as,  with  the concurrence  of the Government of the State,  the  President may by order specify. Explanation.-For   the   purposes  of  this   article,   the Government of the State means the person for the time  being recognised  by  the President as the Maharaja of  Jammu  and Kashmir acting on the advice of the Council of Ministers for the  time being in office under the Maharaja’s  Proclamation dated the fifth day of March, 1948; (c)the  provisions of article I and of this article  shall apply in relation to that State; (d)such of the other provisions of this Constitution shall apply  in relation to that State subject to such  exceptions and modifications as the President may by order specify; 293 Provided  that  no such order which relates to  the  matters specified  in  the  Instrument of  Accession  of  the  State referred  to  in paragraph (i) of sub-clause  (b)  shall  be issued  except  in consultation with the Government  of  the State: Provided further that no such order which relates to matters other  than those referred to in the last preceding  proviso

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shall  be  issued  except  with  the  concurrence  of   that Government. (2)  If  the  concurrence of the  Government  of  the  State referred  to in paragraph (ii) of sub-clause (b)  of  clause (1)  or  in  the Second proviso to sub-clause  (d)  of  that clause  be  given before the Constituent  Assembly  for  the purpose  of  framing  the  Constitution  of  the  State   is convened,  it shall be placed before such Assembly for  such decision as it may take thereon. (3)Notwithstanding anything in the foregoing provisions of this  article,  the President may, by  public  notification, declare  that  this article shall cease to be  operative  or shall   be   operative  only  with   such   exceptions   and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of  the State referred to in clause (2) shall  be  necessary before the President issues such a notification." Clause  (1)  (b) of this Article deals with the  legislative power  of the Parliament to make laws for the State; and  it prescribes  limitation in that behalf.  Under paragraph  (1) of sub-cl. (b) of cl. (1) Parliament has power to make  laws for  the State in respect of matters in the Union  List  and the Concurrent List which the President in consultation with the  Government  of  the State  declares  to  correspond  to matters specified in the Instrument of Accession; whereas in regard  to other matters in the said Lists  Parliament  may, under paragraph (ii), have power to legislate for the  State after such other matters have been specified by his order by the President with the concurrence of the Government of  the State.   It  is  significant that paragraph  (i)  refers  to consultation   with  the  Government  of  the  State   while paragraph (ii) requires its concurrence, 294 Having   thus  provided  for  consultation  with,  and   the concurrence of, the Government of the State, the explanation shows  what  the  Government  of the  State  means  in  this context.   It  means according to the  ,appellant,  not  the Maharaja  acting by himself in his own discretion,  but  the person  who is recognised as the Maharaja by the  -President acting  on  the advice of the Council of Ministers  for  the time  being in office.  It is on this explanation  that  the appellant has placed considerable reliance. Sub-clauses  (c) and (d) of cl. (1) of the  Article  provide respectively  that  the  provisions of Art.  I  and  of  the present  Article shall apply in relation to the  State;  and that the other provisions of the Constitution shall apply in relation  to  it  subject to  exceptions  and  modifications specified  by the Presidential order.  These provisions  are likewise  made subject to consultation with, or  concurrence of, the Government of the State respectively. Having provided for the legislative power of the  Parliament and for the application of the Articles of the  Constitution to  the  State, Art . 370, el. (2) prescribes  that  if  the concurrence  of the Government of the State required by  the relevant  sub-cls.  of  cl. (1) has been  given  before  the Constituent  Assembly  of Kashmir has  been  convened,  such concurrence  shall be placed before such Assembly  for  such decision as it may take thereon.  This clause shows that the Constitution  makers attached great importance to the  final decision of the Constituent Assembly, and the continuance of the  exercise of powers conferred on the Parliament and  the President  by  the  relevant temporary  provisions  of  Art. 370(1) is made conditional on the final approval by the said Constituent Assembly in the said matters. Cl.  (3)  authorises  the President  to  declare  by  public

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notification  that this article shall cease to be  operative or  shall  be operative only with  specified  exceptions  or modifications;  but  this  power can  be  exercised  by  the President  only  if the Constituent Assembly  of  the  State makes  recommendation in that behalf.  Thus the  proviso  to el. (3) also emphasises the importance 295 which was attached to the final decision of the  Constituent Assembly  of  Kashmir  in regard  to  the  relevant  matters covered by Art. 370. The  appellant  contends  that the scheme  of  this  Article clearly shows that the person who would be recognised by the President as the Maharaja of Jammu & Kashmir was treated  as no more than a constitutional Ruler of the State.  In regard to matters covered by this Article he could not function  or decide  by  himself  and in his own  discretion.   The  con- sultation  contemplated by this Article had to be  with  the Maharaja  acting on the advice of the Council  of  Ministers and  the  concurrence prescribed by it had to  be  similarly obtained  and given, and that brings out the limitations  on the powers of the Maharaja.  It is also urged that the final decision in these matters has been deliberately left to  the Constituent Assembly which was going to be convened for  the framing  of  the Constitution of the State, and  that  again emphasises  the  limitations imposed on the  powers  of  the Maharaja. This  argument  assumes that under the explanation  to  Art. 370(1)  it is the person recognised by the President as  the Maharaja  who  has to act on the advice of’ the  Council  of Ministers in relation to matters covered by Art. 370.   But, it is possible to take the view that the said clause  really indicates that in recognising any person as the Maharaja  of the  State  the President has to act on the  advice  of  the Council of Ministers for the time being in office under  the Maharaja’s proclamation dated March 5, 1948.  If that be the true  construction  of the explanation,  then  the  argument that, before the Maharaja is consulted or his concurrence is obtained,  he must act on the advice of his Ministers  would not  be  valid.  We would, however, like to  deal  with  the argument even on the assumption that the construction put by the appellant on the explanation is right. On  the  said construction the question which  falls  to  be determined  is: Do the provisions of Art. 370(1) affect  the plenary  powers  of  the  Maharaja  in  the  matter  of  the governance  of the State ? The effect of the application  of the present Article has to be judged in 296 the  light  of its object and its terms  considered  in  the context  of the special features of the  constitutional  re- lationship  between the State and India.  The  Constitution- makers  were  obviously anxious that the  said  relationship should be finally determined by the Constituent Assembly  of the  State itself; that is the main basis for,  and  purport of,  the temporary provisions made by the present Article  ; and so the effect of its provisions must be confined to  its subject-matter.   It would not be permissible or  legitimate to hold that, by implication, this Article sought to  impose limitations  on  the  plenary  legislative  powers  of   the Maharaja.  These powers had been recognised and specifically provided by the Constitution Act of the State itself; and it was not, and could not have been, within the  contemplation, or  competence  of the Constitution-makers to  impinge  even indirectly on the said powers.  It would be recalled that by the Instrument of Accession these powers have been expressly recognised   and  preserved  and  neither   the   subsequent

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proclamation issued by Yuvaraj Karan Singh adopting, as  far as  it was applicable, the proposed Constitution  of  India, nor  the  Constitution  Order  subsequently  issued  by  the President,  purported to impose any limitations on the  said legislative  powers of the Ruler.  What form  of  government the  State  should adopt was a matter which had to  be,  and naturally  was  left  to  be,  decided  by  the  Constituent Assembly  of  the  State.  Until  the  Constituent  Assembly reached  its  decision in that  behalf,  the  constitutional relationship  between  the State and India continued  to  be governed basically by the Instrument of Accession.  It would therefore be unreasonable to assume that the application  of Art. 370 could have affected, or was intended to affect, the plenary  powers  of  the  Maharaja  in  the  matter  of  the governance  of the State.  In our opinion,  the  appellant’s contention based on this Article must therefore be rejected. The  application of Arts. 245, 254 and 255, and of Art.  246 as  modified,,  does  not seem to have any  bearing  on  the question  of  the authority and powers of the Ruler  of  the State.   Their application merely serves to provide for  the legislative powers of the Parliament 297 to  make  laws in respect of matters covered  by  Art.  370. Incidentally we may point out that the application of  Arts. 246 and 254 as provided by the Constitution Order 10 of 1950 has been subsequently modified by the Constitution Order  48 of 1954.  Similarly Art. 255 which was originally applied by the first Order has been deleted by the latter Order.   This shows  that it was subsequently realised that  the  original application  of the said Articles prescribed by the  earlier Order was more anticipatory and notional and required either suitable modification or cancellation. The  appellant has then relied upon the provisions  of  Art. 385.  It provides: " Art. 385.-Until the House or Houses of the Legislature  of a  State  specified in Part B of the First Schedule  has  or have  been  duly constituted and summoned to  meet  for  the first session under the provisions of this Constitution, the body   or  authority  functioning  immediately  before   the commencement of this Constitution as the Legislature of  the corresponding  Indian  State shall exercise the  powers  and perform   the  duties  conferred  by  provisions   of   this Constitution  on the House or Houses of the  Legislature  of the State so specified." It  is  difficult  to see how  this  Article   supports  the appellants contention.  In fact it is not easy to appreciate what  the  application of this Article to the  State  really meant.   As we have already pointed out the  application  of the  specified  Articles to the State was  not  intended  to affect,  and constitutionally could not have  affected,  the form  of  the  government prevailing in the  State  and  the plenary legislative powers of the Maharaja in regard to  the government of the State.  As in regard to the application of Arts.  245,  254 and 255, so in regard to  this  Article  as well,  it was subsequently realised that the application  of the Article was purely notional and could serve no  purpose. That  is  why  by C. O. 48 of 1954  this  Article  has  been deleted from the list of Articles applied to the State.   It seems  to  us that the initial formal  application  of  this Article cannot justify the appellant’s case that the plenary legislative powers vesting in the Ruler of the State 38 298 were  not  only  affected but, as  the  appellant  contends, completely  extinguished.   The constitutional  position  in

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regard  to the government of the State continued to  be  the same  despite the application of this Article.   In  dealing with the application of this Article and Arts.  245, 254 and 255,  it  would  be  permissible to  rely  on  the  rule  of construction  set  out in Maxwell that " a  thing  which  is within the letter of a statute is generally to be considered as  not  within  the  statute unless it  is  also  the  real intention  of  the  Legislature  It  is  evident  that   the Constitution-makers have treated the problem of Kashmir on a special  basis  and that though the association  of  Kashmir with India which began with the Instrument of Accession  has been  steadily and gradually growing closer and closer on  a democratic  basis, it still presents features not common  to any other State included in the Union of India.  We have  no doubt  that at the time when the Act was passed the  plenary legislative  powers of the Yuvaraj had not been affected  in any  manner.   The result is that Yuvaraj  Karan  Singh  was competent  to enact the Act in 1950 and so the challenge  to the  validity  of  the Act on the ground  that  he  did  not possess   legislative  competence  in  that  behalf   cannot succeed. It  is  clear that the validity of the Act cannot  be  chal- lenged  on the ground that the Act did not provide  for  the payment of compensation.  For one thing s. 26 of the Act did contemplate  the payment of compensation.  Besides,  as  the law of the State then stood, there was no limitation on  the legislative power of the Ruler such as is prescribed by Art. 31  of  the  Constitution; and Art. 31  had  not  been  then applied  to  the State.  Subsequently when  Art.  31(2)  was extended  to the State the Act no doubt became the  existing law and it has been saved by the new and modified cl. (5) of the said Article. There  is  another aspect of the matter to  which  reference must  be  made.  Section 26 of the Act had  left  the  final decision  on the question of the payment of compensation  to the  Constituent  Assembly of the State; and  it  is  common ground that the Constituent Assembly has decided not to  pay any   compensation.   Mr.  Chatterjee  contends  that   this decision is (1)  Maxwell on " Interpretation of Statutes ", 10th Ed., P. 17. invalid  because  the Constituent Assembly itself  was,  not properly  called and constituted.  There is no substance  in this argument.  After Yuvaraj Karan Singh was put in  charge of the duties of governing the State by Maharaja Hari  Singh by  his  proclamation issued on June 20, 1949, he  began  to function  as  a Ruler and was entitled to exercise  all  his powers in that behalf He realised that the original plan  of Maharaja  Hari  Singh to call a national assembly  which  he announced on March 5, 1948, would not meet the  requirements of  the  situation  which had  radically  changed;  and  the Yuvaraj  thought  that a Constituent Assembly on  a  broader basis should be called and should be entrusted with the task of framing a Constitution without any delay.  It is idle  to suggest  that the Yuvaraj was bound to convene the  national assembly  on  the same lines as were laid down  by  Maharaja Hari Singh in his proclamation and with the same object, for the  same purpose, and subject to the same  conditions.   It was  for  the  Yuvaraj  to  consider  the  situation   which confronted  him and it was within his competence  to  decide what solution would satisfactorily meet the requirements  of the  situation.   We  have no doubt  that  the  Yuvaraj  was perfectly  competent to issue the proclamation on April  20, 1951,  under which the Constituent Assembly ultimately  came to be elected and convened.  If the Constituent assembly was

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properly   constituted  and  it  decided  not  to  pay   any compensation to the landlords it is difficult to  understand how  the  validity  of  this  decision  can  be  effectively challenged. That  leaves  only  one question to be  considered.   It  is contended  that  the Act is invalid under Art.  254  of  the Constitution because it is inconsistent with the two earlier Acts,  No. 10 of 1990 and No. 4 of 1977.  It is  unnecessary to  enquire whether there is any repugnancy between the  Act and the earlier Acts to which the appellant refers.  In  our opinion  the  argument based on the provisions of  Art.  254 must  be  rejected  on the preliminary  ground  that  it  is impossible   to  invoke  the  assistance  of  this   Article effectively  because in terms the essential  conditions  for its  application  are  absent in  the  present  case.   This argument  assumes  that  under  Art.  254(1)  if  there   is repugnancy between 300 any  provision of a law made by the Legislature of  a  State and any provision of an existing law with respect to One  of the matters enumerated in the Concur-rent List, then subject to  the  provisions  of  cl.  (2),  the  law  made  by   the Legislature of the State was to the extent of the repugnancy void.   The  appellant concedes that there is no  scope  for applying  the provisions of el. (2) of Art. 254 which  deals with  cases where the subsequent law has been  reserved  for the  consideration  and assent of the  President;  but  this aspect  of  the matter itself shows that the  whole  Article would in substance be inapplicable to the State.  Clause (2) of  Art.  254,  which is its integral  and  important  part, postulates that the Legislature of the State, in enacting  a law on the relevant matter may reserve it for  consideration of  the  President  and his assent,  and  thereby  save  the consequences of cl. (1) ; and cl. (2) was clearly  inapplic- able to the State.  Besides, it is clear that the  essential condition  for  the application of Art. 254(1) is  that  the existing  law  must be with respect to one  of  the  matters enumerated in the Concurrent List; in other words, unless it is shown that the repugnancy is between the provisions of  a subsequent  law and those of an existing law in  respect  of the  specified matters, the Article would  be  inapplicable; and,  as we have already pointed out, Schedule  Seven  which contains  the three Legislative Lists was not then  extended to the State; and it is, therefore, impossible to  predicate that  the  matter  covered by the prior law is  one  of  the matters enumerated in the Concurrent List.  That is why Art. 254 cannot be invoked by the appellant.  On this view, it is not necessary to consider whether the construction sought to be  placed  by the appellant on this  Article  is  otherwise correct or not. The  result is that all the grounds urged by  the  appellant against the validity of the Act fail, and so it must be held that  the High Court was right in taking the view  that  the plaintiff  had not shown that the Act was ultra vires.   The appeal accordingly fails and is dismissed with costs. Appeal dismissed. 301