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PETITIONER: STATE OF MYSORE

       Vs.

RESPONDENT: ANANT VINAYAK PATWARDHAN

DATE OF JUDGMENT26/02/1974

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. MATHEW, KUTTYIL KURIEN

CITATION:  1974 AIR 2364            1974 SCR  (3) 460  1975 SCC  (3) 478

ACT: Bombay Merged Territories Miscellaneous Alienation Abolition Act,  1955,  Section 17-Tainat (Cash Allowance)  granted  to respondent’s ancestors by the Peshwas-Allowance continued by Ruler  of  Jamkhandi under terms of treaty with  East  India Co.-Subsequently Ruler of Jamkhandi converted allowed to one for  life-Whether cash allowance payable was  permanent  and hereditary-Commutation  amount whether deductible from  cash allowance for payment of compensation.

HEADNOTE: The respondent’s ancestors had been granted a cash allowance called  Tainat  by  the Peshwas.  After the  defeat  of  the Peshwas  by  the British, by the Treaty  of  Gulgallee  with Jamkhandi  dated 6-6-1819 by the then Governor of Bombay  on behalf  of  the East India Co. one of the terms  which  were granted  to  Gopalrao Jamkhandikar was regarding  the  terms which he held from the Govt. of His Highness the Peshwa, for the  payment of his contingent (apparently army) out of  his personal  allowance.  It stated that he was to continue  all allowances  and  no  complaints  on this  head  were  to  be suffered  to  reach the Government.  The  allowance  to  the respondent’s ancestors was one such allowance.  The  extract from  the Petha Khata wahi of 1942-43 shows that  the  grant was  permanent.   But in 1944, the then Ruler  of  Jamkhandi converted  the  allowance  to  one  for  life.   After   the Jamkhandi  State  was  merged in the State  of  Bombay,  the Bombay  Legislature  passed the  Bombay  Merged  Territories Miscellaneous   Alienation   Abolition   Act,   1955.    The respondent  filed an application on 21-7-1956 under  section 17 of that Act claiming that the cash allowance payable  was both  permanent and hereditary but that he learnt  that  the Ruler  of  Jamkhandi  had  passed an  order  that  the  said allowance be continued till his (applicant’s) life time when the  same  :was  continued to him after the,  death  of  his father.  He mentioned that he had moved the Rajasaheb by  an application  which  was  not disposed  of.   He,  therefore, claimed  that he would be entitled to seven times  the  cash allowance, permanent_ on the basis that it was permanent  or in the alternative to three times the cash allowance on  the basis that it was payable for life.  However, by this  time, the Ruler of Jamkhandi was no longer a Ruler and was not  in

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a position to be of any assistance to the respondent on  the basis  of  his application.  The Assistant  Commissioner  of Jamkhandi  passed  an order granting a sum  equal  to  three times the annual sum which the respondent was receiving.  On appeal  by  the respondent to the  Appellate  Tribunal,  the Tribunal  held  that the Ruler of  Jamkhandi  had  sovereign power   and  was  the  fountain  head  of  all  sources   of authority,.  that is. executive, judiciary  and  legislature and  he could change the Tainat cash allowance at his  sweet will  and pleasure.  The Tribunal accordingly dismissed  the appeal.   The  respondent thereupon filed  a  writ  petition before the High Court.  The High Court. directed that a  sum equal  to seven times the annual cash allowance be  paid  to the  respondent on the basis that the grant was  hereditary. The  State Government thereupon appealed by a special  leave to this Court. Allowing the appeal, HELD : (1) The constitutional position of the Ruler of every one  of the Indian States before their integration with  the rest  of India and coming into force of the Constitution  of India was that he enjoyed uncontrolled sovereign powers  and there were no constitutional limitations upon his  authority to  act  in  any of the  three  capacities  of  legislature, executive and judiciary.  It follows, therefore, that if the Ruler of Jamkhandi had changed the- permanent cash allowance granted to the respondents ancestors to one. for life, it is legally valid and it cannot be questioned. [463 A-B] 461 Ameer-up-Nissa Begum v. Mahboob Begum, A.I.R. 1955 S.C. 352, relied on. (11) The  Tainat  allowance  being  service  allowance   the deduction  of the commutation amount is for the payment  to. the  person who was doing the service in place of  the  cash allowance  holder.  That is why-what was being paid  to  the respondent year after year was the cash allowance minus  the commutation  amount.  The commutation amount is,  therefore, deductible  from  the cash allowance while  calculating  the compensation payable to the respondent. [463 D-E]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1741  of 1967. Appeal  by special leave from judgment and order  dated  the 30th November, 1962 of the Mysore High Court at Bangalore in Writ Petition No. 777 of 1961. V.  K. Krishna Menon, M. Veerappa and S. P. Singh,  for  the appellant. R. B. Datar and M. L. Verma, for the respondent. The Judgment of the Court was delivered by ALAGIRSWAMI, J.-The respondent’s ancestors had been  granted a  cash allowance called Tainat by the Peshwas.  After  the, defeat  of  the  Peshwas by the British, by  the  Treaty  of Gulgallee with Jainkhandi dated 6-6-1819 by the Hon’ble  Mr. Elphinston,  Governor of Bombay on behalf of the East  India Company  one  of the terms which were  granted  to  Gopalrao Jamkhandikar was regarding the terms which the held from the Government  of His Highness the Peshwa, for the  payment  of his, contingent (apparently army) of his personal allowance. It  stated  that he was to continue all  allowances  and  no complaints  on. this head were to be suffered to  reach  the Government   (East   India  Company).   The   allowance   to respondent’s  ancestors  was  one-  such  allowance.    This allowance seems to have amounted to a sum Rs. 2010/- minus a

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sum  of Rs. 240/- being the commutation amount as  shown  in Petha  Khata Wahi Extract of 1942-43.  That: exact, also  at this  grant was permanent.  But. in 1944 the then  ruler  of Jamkhandi        seems       to        have        converted this  allowance to one for life. After the  Jamkhandi  State was  merged in the State of Bombay, the, Bombay  Legislature passed    the   Bombay    Merged   Territories    Mislaneous Alienations.     Abolition Act 1955.  The respondent’s filed an  application on 21-7-1956 under s. 17 of that Act  before the  Assistant   Commissioner, Jamkhandi claiming  that  the cash allowance be payable: was both permanent and hereditary but  he learnt that the ruler Jamkhandi had passed an  order that   the  said  cash  allowance  be  continued  till   his (appellantt’s)  The time when the same was to him after  the death  of  his father.  He mentioned that he had  moved  the Rajasaheb  by an application which was not finally  disposed of.  He, therefore. claimed that he would be entitled to Rs. 21.000/- at 7 times of the cash, allowance on the basis that it  was  Rs.  3,000/-  a year  and   permanent’  or  in  the alternative  to  Rs.  9 000/- being  three  times  the  cash allowance  on the basis that it; was payable for. life.   It would  be  appreciated  that  by, this  time  the  Ruler  of Jamkhandi  was no longer a Ruler and was certainly not in  a posi- -L954SupCI/74 462 tion  to  ,be of any assistance to the.  respondent  on  the basis of his application.  The Assistant Commissioner passed an order granting a sum which the respondent was  receiving. The  respondent then filed an appeal to the  Mysore  Revenue Appellate Tribunal as by that time the area had become  part of  the  ’Mysore State.  In that appeal  he  mentioned  that through mistake his name has been recorded as holder of  the Tainat cash allowance for life only.  He also mentioned that his application to the Rejasaheb of Jamkhandi for correction of  the mistake was still pending even though the  state  of Jamkhandi was merged.  The ’Tribunal dealt with the argument before it on behalf of the respondent to the effect that the ruler  of  Jamkhandi  had  no  power  to  change  the.  cash allowance  to one for life as according to his  own  earlier order passed in the year 1909-10 it was permanent and in the view  that the ruler of Jamkhandi had sovereign  powers  and was  the fountain head of all source of authority, that  is. executive,  judiciary and legislature, he could  change  the Tainat  cash  allowance  at his  sweet  will  and  pleasure, dismissed the appeal.  The respondent thereupon filed a writ peytition  No.  777 before the High Court of  Mysore.  rhere also he stated that through mistake his name was recorded as the  holder  of the cash allowance for life only,  and  also urged  that  the  ruler  of the JamState  had  no  power  to interfere  with the Tainat cash allowance.  The  High  Court did  not  deal  with  the  question  whether  the  Ruler  of Jamkhandi          had,  in  1944, the power  to  convert  a hereditary grant to one for life but directed that a sum  of Rs.  14,070 being seven times  annual cash allowance of  Rs. 29010 be paid to the respondent on ,the basis that the.grant was  hereditary.  This appeal is against that  judgment  and order of the High Court. We  are of opinion that clearly the decision of  the  Mysore High  ’Court is wrong.  In Ameer-un-Nissa Begum  v.  Mahboob Begum (AIR 1953 SC 352) this Court stated the constitutional position of the Nizani of Hyderabad in these words :               "...... It cannot be dispute that prior to the               integration  of  ’Hyderabad  State  with   the               Indian Union and the coming into force of  the

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             Indian  Constitution,;the Nizam  of  Hyderabad               enjoyed uncontrolled sovereign powers.  He was               the supreme legislature the supreme  judiciary               and  the supreme head of ’the  executive,  and               there were no constitutional limitations  upon               his   authority  to  act  in  any   of   these               capacities.   The Firmans were expressions  of               the  sovereign  will of the  Nizam  anti  they               Were,binding in the same way any other  ’law;-               nay, they would override all other laws  which               were  in  conflict with them.  So  long  as  a               particular ’Fireman, hdld the field that alone               would  govern  or regulate the rights  of  the               parties concerned, though it could be annulled               or  modi-fied by a later ’Firman’ at any  time               that the Nizam willed.               The,   Nizam   war,  not  only   the   supreme               legislature, he was the fountain of justice as               well.,When  he  constituted a  new  Court,  be               could,  according  to  ordinary  notions,   be               deemed  to  have  exercised  his   legislative               authority.  When again he               463               affirmed or reversed a Judicial decision, that               may  appropriately be described as a  judicial               act.   A rigid line of  demarcation,  however.               between  the one and the other would from  the               very nature of things be not justified or even               possible." That  sets out the constitutional position of the  ruler  of every of the Indian States before their integration with the rest  of India and coming into force of the Constitution  of India.  It follows therefore that if the ruler of  Jamkhandi had  changed  the permanent cash allowance  granted  to  the respondent’s  ancestors to one for life it is legally  valid and it cannot be questioned.  The extract from the Jamkhandi State Gazette dated 7-8-1920 publishing rules regarding cash allowance,  itself  shows  that those  rules  cancelled  the earlier  rules and those rules also could  be  appropriately cancelled ’by the subsequent rules.  Any application made by the  respondent to the former ruler of Jamkhandi  after  the State  was  merged in Bombay State will not help  him.   The ruler  held by that time lost all his powers.  The  decision of  the  Mysore Revenue Appellate  Tribunal  is,  therefore, right. There is only one small point which has got to be mentioned. The compensation allowed was three times the cash allowance. As already mentioned the Petha Khata Wahi extract shows  the allowance  at  Rs.  2010.00  minus  Rs.  240.00  being   the commutation   amount.    These  allowances   being   service allowances,  the deduction is for the payment to the  person who  was  doing the service in place of the  cash  allowance holder.   That is why what was being paid to the  respondent year  after  year was the cash allowance  minus  commutation amount.   The  Mysore High Court was,  therefore,  wrong  in holding that this sum of Rs. 240 cannot be deducted from the cash allowance while calculating the compensation payable to the respondent. We  must mention that when this appeal was take,,,.  up  for hearing  Mr.  Datar appearing for the  respondent  contended that  as this Court in M.P. State v. Ranojirao (1968  3  SCR 489)  has  held that the Madhya Pradesh  Abolition  of  Cash Grants  Act  violates  Art. 19(1)(f) or Art.  31(2)  of  the Constitution,  and  so  struck it down,  the  Bombay  Merged Territories  Miscellaneous Alienation Abolition Act is  also

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liable to be struck down on the same ground.  He, therefore, wanted that tic should be given the liberty to move the High Court for striking down the Act under consideration in  this case.   We  do  not propose to express  any  opinion  as  to whether  it would be open him to do so in the background  of this  case.  There is nothing to prevent him from filing  an application if he is so advised., In  the result this appeal is allowed and the  judgment  and order of the High Court of Mysore set aside.  As the special leave was granted on the condition that the appellant  would in  any event pay to the respondent his of the’ appeal,  the appellant shall pay the respondent’s costs. S.B.W. Appeal allowed. 18-L954SupCI/74 464