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PETITIONER: SARWARLAL AND OTHERS

       Vs.

RESPONDENT: THE STATE OF HYDERABAD

DATE OF JUDGMENT: 16/03/1960

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER SARKAR, A.K. GUPTA, K.C. DAS

CITATION:  1960 AIR  862            1960 SCR  (3) 311  CITATOR INFO :  R          1975 SC 706  (16)

ACT: Jagir,  Abolition  of--Regulations promulgated  by  Military Governor   and  Prime   Minister--Constitutional   validity- Delegation   of  authority  by  Nizam--Nature  and   extent- Hyderabad  (Abolition of jagirs) Regulation, 1358 Fasli,  s. 6(4)-Hyderabad  jagir (Commutation) Regulation (XXV of  1359 Fasli) s. 4(1)(c), 4(2)--Constitution of India, Art. 32(B).

HEADNOTE: After  the  Police  action in the  State  of  Hyderabad  in August,  1948,  the Nizam, by a Farman dated  September  19, 1948,  invested the Military Governor " with  all  authority for the administration of the State " and by a later  Farman declared  that " the said authority includes and has  always included  authority to make Regulations." By virtue  of  the said powers, the Military Governor promulgated the Hyderabad (Abolition of jagirs) Regulations of 1358 Fasli.  Thereafter on  the  termination  of the  appointment  of  the  Military Governor, the Nizam by another Farman appointed Mr.  Vellodi as his Chief Minister and directed that " all the powers  of administration,  vested in the Military Governor before  the said  date  are  exercisable by the  Chief  Minister."  Thus empowered,  the  Chief Minister  promulgated  the  Hyderabad jagirs   (Commutation)   Regulation  XXV  of   1358   Fasli. Thereafter  with  the commencement of  the  Constitution  of India,  the territory of the State of Hyderabad became  part of  the Union of India and the President certified  the  two Regulations  under Art. 31(6) of the Constitution.   By  the Constituion  (First Amendment) Act of 1951, Arts. 31(A)  and 31(B)  and Sch.  IX were inserted into the Constitution  and the two Regulations were included in the said schedule.  The appellant, whose properties had been taken over by the jagir Administrator  under the Abolition Regulation, and who  had, in the meantime, filed a writ petition in the High Court, by his   amended   petition   after  the   amendment   of   the Constitution,  claimed  that  ss. 4(1)(c) and  4(2)  of  the Commutation   Regulation  and  s.  6(4)  of  the   Abolition

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Regulation  were  confiscatory  in nature  and  amounted  to colourable  and  fraudulent exercise of  legislative  power. The High Court found against him and rejected his petition: Held, that the decision of the High Court must be affirmed. There can be no question that the Nizam, at the time when he executed the Farmans and prior to it, was an absolute  ruler vested   with  all  authority  executive,  legislative   and judicial   and  had  unquestionable  powers  to  modify   or extinguish  any  of  the  rights of  his  subjects  and  the language  of the Farmans leaves no manner of doubt  that  he thereby delegated the entirety 312 of  his  authority and powers to the Military  Governor  and thereafter to the Prime Minister. The  doctrine  of  invalidity  of  legislation  enacted   in colourable exercise of legislative authority can apply  only where   the   legislature  is  subject   to   constitutional restrictions.   But  where  the powers  of  the  legislature suffers  from no limitations, constitutional  or  otherwise, that doctrine can have no application. No  question  of infringement of  fundamental  rights  could arise as (i) the impugned Regulations were  pre-Constitution legislations  and  the appellant’s rights had  already  been determined  before the Constitution, (ii) Art. 32(B) of  the Constitution exempts the Regulations from such a challenge. Keshavan Madhava Menon v. State of Bombay [1951] S.C.R. 228, referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION:  Civil Appeals Nos.  392  of 1956 & 686 of 1957. Appeals from the judgment and order dated March 31, 1954, of the former Hyderabad High Court in Civil Writ Nos. 43 and 44 of 1951 respectively. S.   P.  Varma,  S. Mohammed and S. R. Borgaouker,  for  the appellants in both the appeals. A.   V. Viswanatha Sastri, P. V. R. Tatachari and T.M.  Sen, for the respondents in both the appeals. Civil Appeal No. 392 of 1956. 1960.  March 16.  The Judgment of the Court was delivered by SHAH, J.-This is an appeal filed with a certificate  granted under  Art. 133(1)(c) of the Constitution by the High  Court of Judicature of the State,, of Hyderabad. The appellant was a Jagirdar holding jagirs Ramwarm  Chandam Palli  and Gulla Palli, Taluq Sirsalla, in the  District  of Karimnagar  in  the State of Hyderabad.   After  the  Police Action in August, 1948, Major General Chaudary was appointed the   Military   Governor  for  the  State   of   Hyderabad. His  Exalted  Highness the Nizam of Hyderabad  invested  the Military Governor with authority to administer the State  by a  Farman dated September 19, 1948.  The Farman was  in  the following terms: "  Whereas the General Officer Commanding in Chief  Southern Army has appointed Major General J. N. Chaudary, O.B.E.,  to be the Military Governor for the Hyderabad State and whereas all authority 313 for  the  administration of the State now vests  in  him,  I hereby  enjoin  all the subjects of the State to  carry  out such  orders as he may deem fit to issue from time to  time. I  appeal  to all officers of the State  administration  and subjects  of  the State to render faithful  and  unflinching obedience to the Military Governor and conduct themselves in

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a manner calculated to bring about the speedy restoration of law and order in the State ". On August 7, 1949, His Exalted Highness the Nizam issued  an explanatory Farman in the following terms: "  With reference to my Farman dated 19-9-1948, in  which  I referred   to   the  fact  that  all   authority   for   the administration  of  the  State now  vests  in  the  Military Governor, I hereby declare that the said authority  includes and has always included authority to make Regulations ". On  August 10, 1949, the Military Governor  promulgated  The Hyderabad  (Abolition of Jagirs) Regulation of  1358  Fasli, which  will  hereinafter  be referred to  as  the  Abolition Regulation.   This  Regulation  was brought  into  force  on August 15, 1949, the date of its publication in the Official Gazette.   Section 5 of the Regulation directed that from  a date to be notified for the transfer of the  administrations of the jagirs in the State to the Government, the  jagirdars shall  make over the management of the jagirs to  the  Jagir Administrator  and  in default of compliance  therewith  the Officer  appointed  under the Regulation may  take  forcible possession.  By s. 6, it was provided that the jagirs  shall be included in the " Diwani " and unless and until  included in   a  district,  shall  be  administered  by   the   Jagir Administrator,  and that the powers, rights and  liabilities in relation to such jagirs shall cease to be exercisable  by the  jagirdars  and  shall  be  exercisable  by  the   Jagir Administrators,  and  that  no  jagirdar  shall  recover  or receive  any  customary  or other dues from  any  tenant  or resident  of the jagir.  By s. 14, it was declared that  the jagirdars  were  to  receive  certain  interim   maintenance allowances  until such time as the terms of the  commutation of  the jagirs were determined.  Pursuant to  the  authority reserved by a. 6 of the Abolition Regulation, possession 314 of  the jagirs was taken over sometime in September 1949  by the  Jagir  Administrator acting on behalf of the  State  of Hyderabad. On  December  1,  1949, another Farman  was  issued  by  His Exalted Highness the Nizam which provided as follows: "  Whereas the General Officer Commanding in Chief  Southern Army  has  as from the 1st December,  1949,  terminated  the appointment  of  Major General Chaudary, O.B.E., to  be  the Military Governor for the Hyderabad State; And whereas it is necessary to make other arrangements for the  administration of the State as from the said date; Now,  therefore, I hereby appoint as from the said date  Mr. M.  K.  Vellodi,  C.I.E., I.C.S., to be  my  Chief  Minister and   ...   I  further  direct  that  all  the   powers   of administration,  vested in the Military Governor before  the said date are exercisable by the Chief Minister ". In exercise of the powers vested in him, the Chief  Minister promulgated  the Hyderabad Jagirs  (Commutation)  Regulation No. XXV of 1359 Fasli which will hereinafter be referred  to as the Commutation Regulation.  This Regulation was  brought into  operation  on  January  25, 1950.   By  s.  3  of  the Regulation, the method of computing the commutation sum  for every jagir was prescribed. After  the  inauguration  of the Constitution  of  India  on January 26, 1950, on which date the’ territory of the  State of  Hyderabad  became  part  of  the  Union  of  India,  the President  on April 25, 1950, certified the two  Regulations under  Art.  31(6)  of the Constitution  by  a  notification published  in  the  gazette  of the  Union  of  India.   The Constitution   was   amended  on  June  18,  1951   by   the Constitution  (First Amendment) Act of 1951  whereby,  inter

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alia,  Arts. 31(A) and 31(B) and Sch.  IX were  incorporated in  the  Constitution.   The Abolition  Regulation  and  the Commutation  Regulation were included in Schedule IX and  by virtue of Art. 31(B), neither the Regulations nor any of the provisions  thereof were to be deemed to be void or ever  to have become void on the ground that the 315 Regulations were inconsistent with or -took away or abridged any of the rights conferred by any of the provisions of Part III  of  the Constitution.  In the meantime,  the  appellant had, on January 29, 1951, filed a petition in the High Court of Hyderabad for a writ in the nature of mandamus  directing the  State of Hyderabad and the Jagir Administrator to  hand over  possession  of the appellant’s properties and  for  an order declaring the Abolition Regulation and the Commutation Regulation ultra vires and unconstitutional and for  certain interim  orders.  After the amendment of  the  Constitution, the  petition  was  amended on August  14,  1952.   By  this petition, the appellant claimed that ss. 4(1)(c) and 4(2) of the  Commutation  Regulation and s. 6(4)  of  the  Abolition Regulation  were invalid because by these provisions,  there was " naked confiscation of the property " of the  appellant and  that  they  amounted to  "  colourable  and  fraudulent exercise of legislative power ". The High Court of Hyderabad rejected the petition filed by the appellant, but  certified the  case  under Art. 133(1)(c) as a fit one for  appeal  to this court. In  this  appeal,  two  principal  contentions  fall  to  be determined,  viz.,  (1) whether  legislative  authority  was conferred  upon  the Military Governor by the  Farman  dated September  19, 1948 and (2) If, by the  Farman,  legislative authority was delegated to the Military Governor, whether it was circumscribed by any limitations or reservations. Was the Military Governor, by the Farman dated September 19, 1948, invested with all the sovereign authority legislative, executive and judicial of H.E.H. the Nizam or was he  merely invested  with the executive authority ? By the plain  words used  in the Farman, " all authority for the  administration of  the State was conferred upon the Military Governor"  and there  is nothing in the text of the Farman  which  warrants the  view that only executive authority was intended  to  be delegated   thereby.    Within   the   expression,   "   all administrative  authority " is encompassed the  entirety  of the  authority of the sovereign, and by the delegation  from His  Exalted Highness the Nizam, the Military  Governor  was invested with that authority 316 in all its amplitude.  The injunction to the subjects of the State to carry out all such orders as the Military  Governor may deem fit to issue and the appeal to the officers of  the State  and the subjects to render faithful  and  unflinching obedience  and to conduct themselves in a manner  calculated to  bring about the speedy restoration of law and order,  do not  detract from the amplitude of the powers  delegated  to the  Military  Governor.  The expression, " orders  "  would include  every order made in exercise of authority  for  the administration  of the State; and the object intended to  be achieved,  viz., the speedy restoration of law and order  in the State by His Exalted Highness the Nizam as expressed  in the appeal was not restrictive of that authority.  That  His Exalted  Highness  the  Nizam in and  before  the  month  of September,  1948,  was an absolute ruler invested  with  all authority,   executive,   legislative   and   judicial    is indisputable.   He  had  supreme powers  vested  in  him  to modify,  restrict take away or extinguish the rights of  any

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of  his subjects and the validity of his actions  or  orders was  not  liable  to be questioned before  any  tribunal  or authority. The Farman promulgated on September 19, 1948, by His Exalted Highness the Nizam delegated his sovereign authority to  the Military Governor and to remove all doubts as to the  effect of  that delegation, an explanatory Farman dated  August  7, 1949, was issued.  It was declared in express terms by  that Farman  that  the authority of the  Military  Governor  -to; included  and  has  always included the  authority  to  make Regulations  ".  In the clearest terms, the  author  of  the Farman proclaimed the content of the authority delegated  by him to the Military Governor. The  plea rather faintly urged by Mr. Varma that the  Farman merely recited that the Military Governor had been  invested with  authority  for administration and did not by  its  own force purport to invest the Military Governor with authority to  administer  the State is plainly inconsistent  with  the argument  which  was  advanced in the  High  Court  and  the statement of the case filed in this court and was  therefore rightly abandoned by him. 317 Though by the delegation of authority, the Military Governor was invested with all authority of His Exalted Highness  the Nizam  in the matter of administration of the State  in  all its departments, the sovereignty of His Exalted Highness the Nizam  was,  by  this act  of  delegation,  undoubtedly  not extinguished.   It  was  open to  him,  notwithstanding  the delegation, to issue orders or Regulations contrary to those which  were  issued by the Military Governor,  and  also  to withdraw the authority of the Military Governor.  There  is, however,  no  evidence  on the record  to  show  that  after September 19, 1948, and before the Abolition Regulation  was promulgated,  the  authority of the  Military  Governor  was withdrawn or that His Exalted Highness the Nizam had  issued any  order  or Regulation inconsistent  with  the  Abolition Regulation.   The  authority of the  Military  Governor  was withdrawn  in  December, 1949, and the  Chief  Minister  was invested with the same authority of administration including expressly  the power of legislation, and it was in  exercise of  that  authority  that  the  Chief  Minister  issued  the Commutation Regulation. The  authority  of  His Exalted Highness the  Nizam  as  the sovereign  ruler to resume the jagirs and to extinguish  the interests of the jagirdars being by delegation vested in the Military Governor, the legality of the action of the  latter was  not  open  to  challenge on  any  test  of  legislative competence.   Assuming  that no opportunity had  arisen  for exercise  of  the  sovereign  authority  in  the  matter  of resumption  of  jagirs  or  extinction  of  the   jagirdars’ interests   before   the  promulgation  of   the   Abolition Regulation,  an  inference cannot therefrom arise  that  His Exalted   Highness  the  Nizam  had  irrevocably  placed   a restriction  on his sovereignty, or that the  delegation  to the Military Governor of the sovereign authority was subject to  an  implied  restriction  that  the  interests  of   the jagirdars  in  the  jagirs  could not  in  exercise  of  the authority be extinguished. The authority of the Military Governor, being  unrestricted, so  long as it enured, his action in issuing  the  Abolition Regulation could not be challenged on the plea that it was a colourable exercise of legislative 41 318 authority.   The  doctrine  of  invalidity  of   legislative

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provisions  enacted  in  colourable  exercise  of  authority applies   to  legislatures  whose  powers  are  subject   to constitutional  restrictions.  When such a legislative  body seeks,  under  the guise or pretence of complying  with  the restrictions, in enacting a statute, to evade or elude them, it  is but a fraud on the Constitution, and the  statute  is liable  to  be  declared  invalid on  the  ground  that  the enactment  is  in  colourable  exercise  of  authority,  the statute  being in truth beyond the competence of  the  body. But  a  statute  enacted by a  legislative  authority  whose powers  are  not  fettered by any  constitutional  or  other limitations,  cannot  be  declared  invalid  as  enacted  in colourable exercise of its powers. The  authority of the Chief Minister under the Farman  dated December 1, 1949, in its amplitude, was as extensive as that of  His  Exalted  Highness the  Nizam  and  the  Commutation Regulation was not liable to be challenged on the ground  of want  of  legislative competence or colourable  exercise  of legislative authority, the power exercised by him being  the legislative power as the delegate of the Sovereign. The plea that the fundamental rights of the appellant  under the Constitution were infringed by the two Regulations  does not  require  any detailed examination.  By  virtue  of  the Abolition  Regulation,  the  rights of the  appellant  as  a jagirdar   in  his  jagir  were  extinguished  and  by   the Commutation Regulation, the quantum of compensation  payable to  him  was determined by a  pre-Constitution  legislation. The Regulations were competently promulgated in exercise  of legislative authority in that behalf ; and the  Constitution does not operate retrospectively to revive the rights  which had   been,  before  it  was  enacted,  extinguished.    The Constitution has  except as otherwise expressly provided, no retrospective operation  Keshavan Mahava Menon v. State  -of Bombay   (1);   and  rights  which   were   by   legislation extinguished,  before  it  was  enacted,  are  not   revived thereby.   At  the  commencement of  the  Constitution,  the appellant  had, therefore, no rights in the jagirs  and  he, obviously, could not claim a writ of mandamus directing (1)  [1951] S.C.R. 228. 319 delivery  of  possession of the jagir, or a  writ  directing commutation  otherwise  than  under the  provisions  of  the Commutation  Regulation.  It may also be observed  that  the Parliament  has, by the Constitution (1st,  Amendment)  Act, included  the Abolition and the Commutation  Regulations  in the  ninth  schedule, and by virtue of Art. 31(B),  the  two Regulations  are  exempt from challenge on the  ground  that they  are inconsistent with or take away or abridge  any  of the  fundamental  rights  conferred  by  Part  III  of   the Constitution. The appeal therefore fails and is dismissed with costs. Civil Appeal No. 686 of 1957. This appeal raises the same question which has been  decided in the companion Appeal No. 392 of 1956 and for reasons  set out  therein,  this appeal must fail and is  dismissed  with costs. Appeals dismissed.