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PETITIONER: STATE OF SERAIKELLA

       Vs.

RESPONDENT: UNION OF INDIA AND ANOTHER(Suit No. 1 of 1950)STATE OF DHENK

DATE OF JUDGMENT: 06/04/1951

BENCH: KANIA, HIRALAL J. (CJ) BENCH: KANIA, HIRALAL J. (CJ) SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN BOSE, VIVIAN

CITATION:  1951 AIR  253            1951 SCR  474  CITATOR INFO :  R          1955 SC 540  (11)  RF         1957 SC 540  (79)  RF         1970 SC1446  (13)  RF         1971 SC 530  (232,317,364,367,370,373)

ACT:     Constitution  of India, Arts. 363 (1),  374  (2)--Indian States--Accession    to   India   under    Instruments    of Accession--Orders  treating  States  as  having  merged   in India--Suit to declare orders ultra 475 vires    and    enforce   rights   under    Instrument    of Accession--Suits filed in Federal Court before 26th  January 1950--Jurisdiction of Supreme Court to try such suits--Scope of Arts. 363 (1) and 374(2)

HEADNOTE:     Article  374 (2) of the Constitution of  India  provides that  all  suits,  appeals and proceedings  pending  in  the Federal Court at the commencement of this Constitution shall stand  removed  to the Supreme Court and the  Supreme  Court shall  have  jurisdiction to hear and  determine  the  same. Article  363 (1) provides that notwithstanding  anything  in this  Constitution, neither the Supreme Court nor any  other Court shall have jurisdiction in any dispute arising out  of any  provision of a treaty, agreement or similar  instrument entered  into  or executed before the commencement  of  this Constitution by any Ruler of an Indian State.     Certain  States  had acceded to the  Dominion  of  India under  Instruments of Accession in August 1947.   They  were treated  as having merged in the Province of Bihar and  were administered as a part of that Province under Orders  issued under  the Extra Provincial Jurisdiction Act, 1947,  and  s. 290-A  of the Government of India Act,  1935 (as amended  by the  Constituent Assembly Act of  1949).  The States  insti- tuted  suits in the Federal Court of India before  the  26th January,  1950,  for a declaration that the  various  Orders under which the States came to be administered as a part  of Bihar  and the laws under which those Orders were made  were

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ultra  vires and void and the Province of Bihar had  accord- ingly  no  authority to carry on the administration  of  the States.  The suits stood transferred to the Supreme Court of India under Art. 374 (2) of the new Constitution:     Held,  per KANIA C.J., PATANJALI SASTRI J. and  BOSE  J. (MAHAJAN  J. dissenting).--That even though the suits   were instituted  before the new Constitution came into force  and under Art. 374 (2) they stood removed to the Supreme  Court, nevertheless  the  jurisdiction of the Supreme  Court  under Art. 874 (2) was controlled by Art. 363 (1) of the Constitu- tion  in  view of the opening words of  the  latter  namely, "notwithstanding  anything  in this Constitution".   As  the suits  were really to enforce the plaintiff’s  rights  under their  Instruments of Accession and the dispute between  the parties  really arose out of those instruments,  under  Art. 363  (1) the Supreme Court bad no jurisdiction to  hear  the suits.  This view (lid not involve giving any  retrospective effect  to  Art. 361 (3).  MAHAJAN J.  (contra.)--Art.  363. takes  away  the jurisdiction of the Supreme  Court  on  the subjects  mentioned therein if suits about them were  insti- tuted  after the 26th January, 1950, or disputes  concerning them arise alter that date, while Art. 874 (12) empowers the Supreme Court to hear and determine suits which were pending in  the Federal Court on the 26th January, 1950,  and  which that court was competent to hear and determine.  There is no conflict between 476 these  articles, and the Supreme Court had  jurisdiction  to hear the suit.     DAS J.--As the plaintiff States, by virtue of the States Merger (Governor’s Provinces) Order, 1949, were  immediately before the commencement of the new Constitution being admin- istered as if they formed part of the Provinces of Bihar  or Orissa.  the  territories of Bihar and Orissa  included  the territories  of  the plaintiff States under Art.  1  of  the Constitution read with the third paragraph of Part A of  the First  Schedule.   These States consequently  ceased  to  be States so far as the new Constitution is concerned, they had no legal existence as acceding States, and could not  there- fore  be recognised as such States by Courts, as Courts  are bound  by the Constitution and cannot question the  validity of  any  of  its provisions.  The suits  must  therefore  be regarded as having abated.

JUDGMENT: ORIGINAL JURISDICTION.  Suits Nos. 1 to 7 of 1950. The facts are stated in detail in the judgment of KANIA C.J.   N.C.  Chatterjee (A. N. Roy Choudhury, with him)  for  the plaintiffs in suits Nos. 1, 3, and 6.     Dr.  N.C. Sen Gupta (A. N. Roy Choudhury, with him)  for the plaintiffs in suits Nos. 2, 4, 5, and 7.     M.C. Setalvad, Attorney-General for India (G. N.  Joshi, with him) for the defendants in all the suits.     1951.  April 6. The following judgments  were  delivered :--     KANIA C.J.--This is a suit filed on the 15th of January, 1950,  under the Original Jurisdiction of the Federal  Court as it was functioning before the Constitution of India  came into  force on the 26th January, 1950.  The State of  Serai- kella  was a State in Orissa and its Ruler was  Raja  Aditya Pratap  Singh Deo. On the 16th August, 1947,  the  plaintiff State  acceded  to  the Dominion of India by  virtue  of  an Instrument  of Accession executed by its Ruler and  accepted

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by  the  Governor-General of India under section  6  of  the Government  of India Act, 1935.  After reciting  that  under the Indian Independence Act, 1947, the Dominion of India was set up and that under the Government of India Act, 1935,  as adapted, it provided that an Indian State may accede to  the Dominion of India 477 by  an Instrument of Accession, the Instrument  stated  that the  Raja acceded to the Dominion of India and that  he  ac- cepted  that  the matters specified in the Schedule  to  the Instrument were the matters with respect to which the Domin- ion  Legislature  may make laws for the  State.   The  three principal  heads mentioned in the Schedule to that   Instru- ment   were  Defence, External Affairs  and  Communications, with  ’partiCulars detailed under each of those heads.   The Instrument expressly provides that by executing the same the Ruler shall not be deemed to be committed to the  acceptance of any future Constitution of India or to fetter his discre- tion to enter into arrangements with the Government of India under  any  such future Constitution. It  further  expressly provides that nothing in the Instrument affects the continu- ance  of the sovereignty in and over the State, or  save  as provided  by  or under the Instrument, the exercise  of  any powers, authority and rights so far enjoyed by him as  Ruler of the State or the validity of any law then in force in the State.  It also provides that the terms of the Instrument of Accession  are  not  to be varied by any  amendment  of  the Government  of India Act or of the Indian Independence  Act, 1947,  unless  such amendment is accepted by the Ruler or by an Instrument supplementary to the said Instrument.  It  was denied in the plaint that any such supplementary  instrument was executed by the Ruler and no amendment of the  aforesaid Acts  has  been accepted by him or the  plaintiff  State.  A Standstill  Agreement was also executed by the  Ruler  under which  it  was  agreed that matters of  common  concern  and specified  in the Schedule to the Agreement  would  continue between  the Dominion of India and the said State until  new agreements were made in that behalf.    On  the 15th December, 1947, an agreement is  alleged  to have been entered into between the Governor General of India and  the Ruler of the plaintiff State. By that document  the Raja  ceded  to the Dominion Government full  and  exclusive authority,  jurisdiction and powers for and in  relation  to the governance of 478 the  State and agreed to transfer the administration of  the State  to  the Dominion Government on the  1st  of  January, 1948. Article 2 contained a provision for the Privy Purse of the Raja and it is contended by the plaintiff that when  the Raja signed the document the figure in this clause had  been left  blank.   Under  article 3 of that  agreement,  it  was provided that the Raja would be entitled to the full  owner- ship, use and enjoyment of all private properties  belonging to  him on the date of the agreement and that by the 1st  of January, 1948, the Raja will furnish to the Dominion Govern- ment  an inventory of all immoveable properties,  securities and cash held by him as such private property. Under article 4,  the  personal  privileges enjoyed by the  Raja  and  the members of his family mentioned therein had to continue.     On the 24th of December, 1947, an Act to provide for the exercise  of  certain extra-provincial jurisdiction  of  the Central  Government (Act XLVII of 1947) was  passed.   Under section  3  of  that Act it was provided that  it  shall  be lawful for the Central Government to exercise  extra-provin- cial  jurisdiction in such manner as it thinks fit  and  the

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Central  Government  may delegate any such  jurisdiction  as aforesaid to any officer or authority in such manner and  to such  extent as it thinks fit.  Under section 4 it was  pro- vided that the Central Government may by notification in the official Gazette make such orders as may seem to it  expedi- ent  for  the  effective exercise  of  any  extra-provincial jurisdiction of the Central Government. A notification under section  4 of that Act was thereafter issued by the  Central Government delegating, under section 3, the powers contained in  that Act to the Province of Orissa. On the 18th of  May, 1948,  that  notification was cancelled and  the  powers  in respect of the two specified States including the  plaintiff State  were delegated to the Province of Bihar. On the  same day  the  Government of Bihar passed an  order  called  "The Seraikella  and Kharaswan States Order"  providing  for  the administration  of  the two States. On the 5th  of  January, 1949, the Legislative Assembly of India, 479 which  was  also functioning as  the  Constituent  Assembly, passed  the  Constituent Assembly Act I of  1949  and  added section  290-A  to the Government of India Act,  1935.  That section runs as follows :--     "Administration  of certain Acceding States as  a  Chief Commissioner’s Province or as part of a Governor’s or  Chief Commissioner’s Province’-     (1) Where full and exclusive authority, jurisdiction and powers  for and in relation to the Government of any  Indian State or of any group of such States are for the time  being exercisable by the Dominion Government, the Governor-General may by Order direct     (a)  that  the  State or the group of  States  shall  be administered in all respects as if the Stale or the group of States were a Chief Commissioner’s Province; or     (b)  that  the  State or the group of  States  shall  be administered in all respects as if the State or the group of States formed part of a Governor’s or a Chief Commissioner’s Province specified in the Order:     Provided that if any Order made under clause (b) of this sub-section  affects  a Governor’s Province,  the  Governor- General shall before making such Order, ascertain the  views of the Government of that Province both with respect to  the proposal  to make the Order and with respect to  the  provi- sions to be inserted therein.     (2) Upon the issue of an Order under clause (a) of  sub- section (1) of this section, all the provisions of this  Act applicable  to  the Chief Commissioner’s Province  of  Delhi shall  apply to the State or the group of States in  respect of which the Order is made.     (3)  The Governor-General may in making an  Order  under sub-section  (1)  of this section  give  such  supplemental, incidental  and consequential directions  (including  direc- tions  as_ to representation in the Legislature) as  he  may deem necessary.     (4) In this section, reference to a State shall  include reference to a part of a State."     On the 27th of July, 1949, the Governor-General of India promulgated an Order called the States Merger 480 (Governors’  Provinces) Order of 1949.  The result  of  that was  that the plaintiff State is claimed to have  merged  in the Province of Bihar.     The  plaintiff  State contends that  the  Government  of Orissa wrongfully and illegally purported to administer  the plaintiff State by virtue of the Notification of the 23rd of December, 1947, under Act XLVII of 1947. It is claimed  that

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the  Act  was and is ultra vires and of no  effect  and  not binding  on the plaintiff State.  The alleged  agreement  of the 15th of December, 1947, is contended to be void for want of consideration and is inoperative.  Indeed it is contended that as the figure was left blank there was no agreement  at all.   It is contended that on the 18th May,  1948,  without the  consent  and  approval of the plaintiff  State  or  its Ruler,  the Province of Bihar wrongfully and illegally  took over  the administration of the State and passed the  Serai- kella and Kharsawan Administration Order, 1948. In paragraph 10 of the plaint it is contended that the Dominion of  India had  no authority to go beyond the Instrument of  Accession, had no authority to delegate powers to the Province of Bihar to administer the plaintiff State and the said Order, in any event,  is  illegal and inoperative as it  went  beyond  the ambit  of  the Extra Provincial Jurisdiction Act,  1947.  As regards the Order issued by the Governor-General on the 27th of  July, 1949, it is contended that he had no authority  or power to promulgate the Order and the State Merger Order  of 1949  purporting  to be passed under section  290-A  of  the Government  of India Act, 1935, is also void. The  enactment of the Constituent Assembly Act I of 1949 is contended to be ultra  vires and illegal. That Act is further challenged  on the  ground  that it was enacted without the assent  of  the Governor  General of India.  It is contended in  the  plaint that  the defendants, viz. the Union of India and the  State of  Bihar, deny and are interested in denying the  existence or  entity  of  the plaintiff State  and  in  disputing  the rights, privileges, powers and prerogatives of its Ruler  as well  as the right to the private properties as set  out  in the annexure.  The States Merger Order of 481 1949 is contended to be an abuse of power and authority  and a fraud on the Government of India Act, 1935, and the Indian Independence Act, 1947.  It is contended that the Government of  India  or the Constituent Assembly had no  authority  to pass any legislation on a matter not specified in the Sched- ule  to the Instrument of Accession. In paragraph 19 of  the plaint it is contended that the dispute between the  parties comprised  and involved questions on which the existence  or extent of legal rights depends and the plaintiff State is  a party to the same. These disputes concern the interpretation of  the  Government of India Act, 1935, and/or of  an  order made  thereunder  and/or the interpretation  of  the  Indian Independence Act and/or an order made thereunder and/or  the extent of authority vested in the Dominion by virtue of  the Instrument of Accession of the plaintiff State. The  prayers are:  (a)Interpretation  of the relevant provisions  of  the Government of India Act, 1935, the Indian Independence  Act, 1047, and the States Merger Order, 1040. (b) For a  declara- tion that the Dominion Government had no authority to assume any  power or jurisdiction beyond the matters  specified  in the Instrument of Accession and had no authority to delegate any power in relation to the plaintiff State to the  Provin- cial  Government  of Bihar. (c) For a declaration  that  Act XLVII  of  1947,  the Constituent Assembly Act  I  of  1949, section  290-A  of  the Government of India  Act,  1935,  as adapted, and the States Merger Order, 1949, are ultra vires, illegal and inoperative in so far as they are made  applica- ble  to  the plaintiff State and Orders made  thereunder  as also actions taken or purported to be taken thereunder;  (d) For a declaration that the Province of Bihar had no authori- ty  or  jurisdiction to carry on the administration  of  the plaintiff State and that the alleged merger was illegal  and unauthorized; (e) For a declaration as to the rights of  the

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parties and as to the extent of the authority of the  Domin- ion of India over and in respect of the plaintiff State; (f) For  a  declaration that the plaintiff  State  retained  its entity  and territorial integrity, that  its  administration should 482 in any event be carried on in the name of its Ruler and that his rights and privileges as set out in annexure ’C’ and his private  properties as set out in annexure ’D’ remain  unaf- fected; and (g) For a declaration that the Province of Bihar had  no authority or jurisdiction over the  plaintiff  State and  that it should not interfere in any way with the  State or the sovereignty of its Ruler.     Six  other suits by other States of the  former  Eastern Agency were filed also before the Constitution of India came into force on the 26th of January, 1950, on the same  lines, except  that  in four of them the agreement similar  to  the agreement  of the 15th December, 1947, is admitted  to  have been executed by the Ruler and is admitted to be binding  on the plaintiff.     The  material  part of section 6 of  the  Government  of India Act, 1935, which provides for the accession of  Indian States, runs as follows :-   6.  Accession of Indian States.--(1) An Indian State shall be  deemed to have acceded to the Dominion if the  Governor- General  has  signified his acceptance of an  Instrument  of Accession executed by the Ruler thereof whereby the Ruler on behalf of the State :--     (a)  declares that he accedes to the Dominion  with  the intent that the Governor-General, the Dominion  Legislature, the  Federal Court and any other Dominion  authority  estab- lished for the purposes of the Dominion shall, by virtue  of his  Instrument  of Accession, but, subject  always  to  the terms  thereof, and for the purposes only of  the  Dominion, exercise  in relation to the State such functions as may  be vested in them by order under this Act; and      (b) assumes the obligation of ensuring that due  effect is  given within the State to the provisions of this Act  so far as they are applicable therein by virtue of the  Instru- ment of Accession.     (2) An Instrument of Accession shall specify the matters which the Ruler accepts as matters with respect to which the Dominion  Legislature may make laws for the State,  and  the limitations, if any, to which the 483 power  of  the  Dominion Legislature to make  laws  for  the State,  and the exercise of the executive authority  of  the Dominion in the State, are respectively to be subject.     (3) A Ruler may, by a supplementary Instrument  executed by  him and accepted by the Governor-General, vary  the  In- strument  of Accession of his State by extending  the  func- tions which by virtue of that Instrument are exercisable  by any Dominion authority in relation to his State. *                   *                              *     (5) In this Act a State which has acceded to the  Domin- ion  is referred to as an Acceding State and the  Instrument by virtue of which a State has so acceded, construed togeth- er  with  any supplementary Instrument executed  under  this section,  is referred to as the Instrument of  Accession  of that State  ......  "     A supplementary Instrument executed under subsection (3) by  the  Ruler and accepted by the Governor General  is,  by virtue of sub-section (5), therefore to be considered a part of the Instrument of Accession of that State. The supplemen- tary Instruments signed by the four States only bring within

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the  scope of discussion those supplementary Instruments  on the  footing  that  they were a part of  the  Instrument  of Accession.     Written  statements  have been filed on  behalf  of  the defendants contesting the contentions raised in the  plaint. There are several contentions in respect of the jurisdiction of the Court.  Several contentions cover pure issues of  law and some raise issues of fact in respect of the document of 15th  December, 1947. The parties agreed on the  issues  and they have been filed in Court. It was further agreed between the parties that issues 1, 3, 4, 5, 6 and 7 may be tried  as preliminary issues and we have heard counsel on those issues fully.  The first issue is in these terms:     "Whether,  having  regard to the subject-matter  of  the suit and the provisions contained in article 363 (1) of  the Constitution  of India, this Hon’ble Court has  jurisdiction to entertain the suit." 484     In  the  view  I take of this issue I do  not  think  it necessary to discuss the other preliminary issues raised  on the question of jurisdiction. For determining this issue, it may  be noted that the Federal Court, prior to the  26th  of January,  1950,  had  original jurisdiction  in  respect  of matters  covered by section 204 of the Government  of  India Act.  Under that section, that Court had jurisdiction in any dispute between a State and the Dominion if and in so far as the  dispute involved any question (whether of law or  fact) on  which  existence or extent of a  legal  right  depended, provided  that  the said jurisdiction did not  extend  to  a dispute to which a State was a party unless the dispute  was covered  by  clause (a) (i) of the Proviso,  which  runs  as follows :--     "Provided  that the said jurisdiction shall  not  extend to-     (a)  a dispute to which a State is a party,  unless  the dispute-     (i)  concerns  the interpretation of this Act or  of  an Order  in  Council made thereunder before the  date  of  the establishment of the Dominion, or of an order made  thereun- der  on  or after that date, or the  interpretation  of  the Indian Independence Act, 1947, or of any order made thereun- der, or the extent of the legislative or executive authority vested in the Dominion by virtue of the Instrument of Acces- sion of that State; or..."     The  rest of the section is not material.   Section  204 (2)  provided that the Federal Court in the exercise of  its original jurisdiction shall not pronounce any judgment other than  a  declaratory judgment.  The suit having  been  filed prior  to the 26th of January, 1950, the suit  stood  trans- ferred to this Court under article 374 (2) of the  Constitu- tion of India.  That article runs as follows:-     " 374. (2) All suits, appeals, and proceedings, civil or criminal,  pending in the Federal Court at the  commencement of  this  Constitution shall stand removed  to  the  Supreme Court, and the Supreme Court shall have jurisdiction to hear and determine the same, and the 485 judgments and orders of the Federal Court delivered or  made before the commencement of this Constitution shall have  the same force and effect as if they had been delivered or  made by the Supreme Court."     Article 131 of the Constitution deals with the  original jurisdiction  of the Supreme Court and its material  portion runs as follows :-- "Subject to the provisions of this Constitution, the Supreme

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Court  shall   .....  have  original  jurisdiction  in   any dispute  ......     (b)  between  the Government of India and any  State  or States  on  one  side and one or more other  States  on  the other  ...... if  and  in  so far as the  dispute  involves  any  question (whether  of law or fact) on which the existence of a  legal right depends:     Provided that the said jurisdiction shall not extend  to (i)  a dispute to which a State specified in Part B  of  the First  Schedule is a party if the dispute arises out of  any provision  of  a treaty,  agreement,  covenant,  engagement, sanad or other similar instrument which was entered into  or executed  before the commencement of this  Constitution  and has or has been continued in operation after such  commence- ment."     The States specified in Part B of the First Schedule  do not mention any of the plaintiff States. Article 363 of  the Constitution of India runs as follows :--     "363.  (1) Notwithstanding anything in this Constitution but  subject to the provisions of article 143,  neither  the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agree- ment,  covenant, engagement, sanad or other similar  instru- ment which was entered into or executed before the commence- ment  of this Constitution by any Ruler of an  Indian  State and to which the Government of the Dominion of India or  any of its predecessor Governments was a party and which has  or has been continued in operation after such commencement,  or in any dispute in respect of any right accruing under or any liability or obligation 486 arising  out of any of the provisions of  this  Constitution relating  to any such treaty, agreement, covenant,   engage- ment,  sanad  or other similar instrument.   ’  (2) In this  article (a)  ’Indian  State’ means any  territory  recognised before the commencement of this Constitution by His  Majesty or  the Government of the Dominion of India as being such  a State;  and      (b)  ’Ruler’ includes the Prince, Chief or other  person recognised  before such commencement by His Majesty  or  the Government  of  the Dominion of India as the  Ruler  of  any Indian State."     The first question arising for consideration is the true interpretation  of  article 374 (2) of the  Constitution  of India.   It was argued that the Federal Court had  jurisdic- tion  to try the suit as framed before the  Constitution  of India came into operation.  Under article 374 (2) that  suit stood  removed  to  the Supreme Court and  the  question  of jurisdiction to try this suit at the present stage has to be determined  only  having regard to the jurisdiction  of  the Federal Court, because the trial of the suit was transferred to the Supreme Court under this article.  It was argued that if  there  was  any limitation on the  jurisdiction  of  the Supreme  Court  to hear such a suit, (if  instituted  in  it under  its  original jurisdiction), such limitation  is  not relevant  to be considered in respect of suits  which  stood transferred to the Supreme Court under article 374 (2).   In other words, in respect of such suits the Supreme Court  had a  wider jurisdiction as compared with the  jurisdiction  of the  Federal  Court,  if its jurisdiction  is  construed  as limited by virtue of the different articles of the Constitu- tion.   In this connection, some reliance was placed on  the use  of the word ’jurisdiction ’ as connected with  the  Su-

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preme Court in article 374 (2). In my opinion, this argument is  unsound. Article 374 is in the Part dealing with  tempo- rary and transitional provisions.  In article 374 (1) it  is provided that the Judges of the Federal Court holding office before  the  commencement of the Constitution,  unless  they have 487 elected  otherwise,  become  Judges of  the  Supreme  Court. Article 874 (2), in my opinion, similarly provides, firstly, for the removal of all suits, appeals and proceedings, civil or  criminal,  pending in the Federal Court to  the  Supreme Court  and, secondly, provides that the Supreme Court  shall have  jurisdiction to hear and determine these matters.   It may  be  noticed that in this clause provision is  made  not only  in respect of suits but of civil and criminal  appeals and  also of other pending proceedings.   By providing  only for   the  removal of these matters to  the  Supreme  Court, there  will  remain a lacuna, if it was not  further  stated that after such removal the Supreme Court shall have  juris- diction  to try the matters.  It is from that point of  view only that, in my opinion, the  Constitution states that  the Supreme Court shall have jurisdiction to hear and  determine the same.  I think it is not correct to read those words  as giving  to  the Supreme Court an  extended  jurisdiction  in these  matters.  Two stages have therefore to be  considered in determining the operation of this clause: (1) whether the suits, appeals or proceedings, which were pending before the Federal  Court, were within the jurisdiction of the  Federal Court;  and  (2) whether on removal the  Supreme  Court  has jurisdiction to hear and determine the same having regard to all  the  provisions  of the Constitution  relating  to  the jurisdiction  of the Supreme Court. It must be noticed  that the Supreme Court was a new Court established by the Consti- tution of India. It had no existence before that. The juris- diction  of  that Court has therefore to be  ascertained  by considering all the relevant articles of the Constitution of India.   It is in that light that the provisions of  article 363 have to be read and interpreted.     Before doing so I think it is essential to bear in  mind the  political  background. Prior to August,  1947,  British India,  as  it was then described, was  governed  under  the Government  of India Act, 1935. Indian States, as they  were then described, were independent States not governed by  the Government  of India. They were under the suzerainty of  His Majesty the King and their 488 administration was controlled under the advice of the Polit- ical  Department of the Government of India, on the  footing that  the King was the Sovereign and had the right to  exer- cise  suzerain powers over those States. On the  passing  of the  Indian  Independence Act, 1947, from the  15th  August, 1947,  the  British Parliament and the King ceased  to  have power to make any laws for India or make any changes in  its Constitution.  These  were  left to India.  As  regards  the Indian  States, while provision continued in the  Government of  India Act for the Rulers signing instruments  of  acces- sion, no suzerain rights were given to the Dominion of India by the Indian Independence Act.  If, therefore, the Dominion of India or any of these States committed acts of aggression or  territorial trespass, there was no law, the  enforcement of  which could give either party a relief and there was  no court  also which could give such a relief. Section  204  of the Government of India Act also did not provide any  relief to any of these Indian States unless they signed an  Instru- ment  of Accession. With the passing of the Constitution  of

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India,  India  became a Sovereign Independent  Republic.  If that  Dominion or Republic committed any acts of  aggression towards a neighbouring Indian State (as it is convenient  to describe  under the circumstances) the Supreme Court has  no jurisdiction to give relief to the Indian State. As  noticed above,  its  jurisdiction under article 131 is  limited  and even in respect of a State specified in Part B of the  First Schedule  if  a  dispute arises out of any  provision  of  a treaty,  agreement,  covenant, engagement,  sanad  or  other similar instrument, it will not be entertained by this Court if  the conditions of the proviso apply  to the same. It  is with this background that we have     to read article 363 of the Constitution.     The opening words of that article in terms override  all provisions of the Constitution, but are made subject only to the provisions of article 143 which enables the President to consult the Supreme Court on matters referred to it.   These all embracing opening words of article 363 therefore clearly override the operation  of 439 article  374(2) also. The result is that article 363 is  the controlling article over article 374(2) also. The  jurisdic- tion  of  the Supreme Court having been stated  in  articles 131-1a6, article 363 provides that notwithstanding  anything contained  in those articles and other articles of the  Con- stitution,  neither  the Supreme Court nor any  other  court will  have  jurisdiction in any dispute arising out  of  any provision  of  a treaty,  agreement,  covenant,  engagement, sanad or other similar instrument which was entered into  or executed  before the ’commencement of this Constitution  and which  has  or has been continued in  operation  after  such commencement. If therefore the dispute arises in respect  of a document of that description and if such document had been executed before the Constitution by a Ruler and which was or had  continued  in operation after such  commencement,  this Court  has no jurisdiction to determine such issue.  It  was argued  that as the agreement had to be in  operation  after the  commencement of the Constitution, no dispute can  arise in  respect of such document before the commencement of  the Constitution  and  therefore as the dispute in  the  present case had arisen before the commencement of the Constitution, article  363 had no operation. In my opinion, this is not  a correct  reading   of article 363 (1). The  time  factor  is related  only to the document in question and not  the  dis- pute.   It is provided that such document should  have  been executed before the Constitution came into force and has  to be  in  operation after the Constitution, but  the  dispute, which  is  the subject-matter of the litigation,  may  arise before or after.     It  was argued that the article is prospective  and  not retrospective.  Therefore it only covers the cases which are filed in the Supreme Court after the Constitution comes into force  and does not affect suits filed in the Federal  Court before the Constitution of India came into operation.  In my opinion  this argument is based on a mistaken meaning  given to  the words "prospective" and "retrospective ". It is  not disputed that the Constitution is prospective.  The question however 490 is that the Supreme Court having been created by the Consti- tution  itself, on the day the Court proceeds  to  determine the matter, what, according to the Constitution of India, is the jurisdiction of this Court. This approach does not  make the  provision retrospective. In this connection, the  simi- larity  in language of articles 368 (1) and 131 proviso  (i)

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may  be  noted.  Considered in that way, the  only  question which  remains for decision is whether on the  structure  of the  plaint, ’the dispute raised by the suit arises  out  of the provision of a treaty, agreement, covenant,  engagement, sanad  or any other similar instrument. I have  already  no- ticed above that the dispute in respect of the agreement  of the  15th  December,  1947, is immaterial  for  the  present discussion. If the plaintiff repudiates that agreement he is seeking  to enforce his rights after ignoring the same.   If the  plaintiff (as noticed in four of the suits)  relies  on this  agreement,  it  becomes a part of  the  Instrument  of Accession  under  section 6 (5) of the Government  of  India Act, 1935, and the dispute will still have to be  considered having  regard to the terms of the two documents, viz.,  the original  Instrument  of  Accession  and  the  supplementary Instrument.   The  question  thus resolves  itself  into  an analysis  of the plaint and to find out what  the  plaintiff seeks to get by his suit. Apart from the fact that in  pray- ers (f) and (g) of his plaint he seeks to enforce his rights under  the Agreement of the 15th December, 1947, it  appears clear  that  the whole ambit of the suit is to  enforce  his Instrument of Accession. The plaintiff contends firstly that it had signed the Instrument of Accession through its Ruler. The  State  next complains that, acting  beyond  the  powers given  over under the Instrument of Accession, the  Dominion of  India and the State of Bihar are trespassing  wrongfully on its legislative and executive functions, that the  Domin- ion  of India and the State of Bihar are making  laws  which they have no power ’to make, having regard to the Instrument of Accession, and are wrongfully interfering with the admin- istration of the State beyond the rights given to them under the Instrument of Accession. The whole plaint is 491 nothing  else  except the claim to enforce  the  plaintiff’s right under the Instrument of Accession. The dispute  there- fore in my opinion clearly is in respect of this  Instrument of  Accession and is covered by article 363 (1) of the  Con- stitution  of  India. The question of  the validity  of  the different enactments and orders is  also based on the rights claimed  under  the Instrument of Accession so  far  as  the plaintiff  is concerned. On the side of the defendants,  the position is that they admit the Instrument of Accession  and they  do  not claim that they are  exercising  the  disputed rights  under that Instrument. Their contention is that  the Agreement of the 15th of December, 1947, was validly  signed and  is binding and enforceable against the  plaintiff.  The defendants contend that  their action in passing the disput- ed legislation and orders and the action in taking over  the administration  are  all  based on that  Agreement  of  15th December,  1947.  If the plaintiff contends that   Agreement is not binding on it, it cannot enforce its rights under the original jurisdiction of the Court.  If the plaintiff has  a grievance  and  a  right to a relief  which  the  defendants contend  it  has not, the forum to seek redress is  not  the Supreme  Court exercising its original jurisdiction  on  the transfer  of the suit from the Federal Court.  According  to the defendants, the situation in those circumstances will be of a Sovereign  Independent State trespassing on the  terri- tories, powers and privileges of another neighbouring  inde- pendent  State. To redress a grievance arising out  of  such action  on the part of the defendants, the Supreme Court  is not the forum to give relief.  The issue is answered in  the negative, costs  in the cause. VIVIAN Bose J.--I agree.     PATANJALI SASTRI J.--This is a batch of suits brought by

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plaintiffs  claiming to be Acceding States for  certain  de- claratory  reliefs in regard to the alleged wrongful  merger of  their respective territories in the territories  of  the adjoining  Provinces of Bihar and Orissa.  The  Dominion  of India was impleaded as the 492 first  defendant, and the Province of Bihar or the  Province of Orissa, as the case may be, as the second defendant.     The suits were instituted in the Federal Court of  India under  section  204 of the Government of  India  Act,  1935, shortly  before  the commencement of the  new  Constitution. Apart  from certain minor variations, the substance  of  the plaintiff’s  case in each suit, shorn of verbiage,  is  that the merger and the taking over of the administration of  the territory  concerned, carried out in purported  exercise  of powers conferred by the States Merger (Governors’ Provinces) Order,  1949,  made by the Governor-General of  India  under section  290-A of the Government of India Act, 1935,  was  a breach of the terms of the Instrument of Accession  executed by the Ruler and accepted by the Governor General in August, 1947,  which continued the sovereignty of the Ruler  in  and over the State, and that all notifications, orders or enact- ments issued or made in violation of the rights and  obliga- tions flowing out of that Instrument were ultra vires,  void and  inoperative.  In the plaints in Suits Nos. 1, 2  and  8 reference was made to an agreement entered into between  the Governor-General and the Ruler concerned in December,  1947, and it was alleged that it was inoperative and void  because it  was  not  a concluded agreement and, in  any  case,  not supported by consideration.  In the other Suits Nos. 4, 5, 6 and  7 that agreement was fully admitted, but "in  spite  of the agreement aforesaid" it was contended that "the  actions taken  by the defendants including the promulgation  of  the orders, notifications and legislation mentioned here in  are wrongful,  illegal and ultra vires". The crucial  prayer  in all the suits was "a declaration that the Dominion of  India has no authority vested in it to assume any power or  juris- diction  beyond the matters specified in the  Instrument  of Accession  and  had no authority to delegate  any  power  or powers in relation to the plaintiff State to the  Provincial Government"  of Bihar or of Orissa, as the case may be.  The other reliefs asked for were merely ancillary and consequen- tial. 493     The  defence,  in the main, was based on  the  aforesaid agreement  of December, 1947, under which, it  was  alleged, the plaintiff in each case "ceded full and exclusive author- ity,  jurisdiction  and powers for and in  relation  to  the governance of the plaintiff to the Government of India  with effect  from 1st January, 1948". It was claimed  that,  from that  date and particularly from January 26, 1950, when  the Constitution of India came into force and made the territory of  the plaintiff an integral part of the territory  of  the State  of  Bihar  (or of Orissa, as the case  may  be),  the plaintiff  ceased  to be a distinct legal unit  and  had  no capacity  to  maintain the suit. The said  agreement  was  a political  agreement  and  not a  civil  contract  requiring consideration for its effectiveness and, in any case, was  a concluded  agreement supported by consideration. In view  of that  agreement, all the actions, notifications  and  orders referred  to  in the plaint proceeded "on the basis  of  the supersession  of  the said Instrument of  Accession  by  the consent  of  the  parties" and they were  legal,  valid  and operative to bind the plaintiff.  In a supplementary written statement  the defendants raised the plea that  "this  Court

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had  no jurisdiction to entertain the suit having regard  to the subject-matter of the suit and the provisions  contained in article 363 (1) of the Constitution of India".     On the 9th December, 1950, by consent of both sides,  it was ordered by the Judge in Chambers that the suit should be heard  on  the preliminary issue,  namely,  "whether  having regard to the subject matter of the suit and the  provisions contained  in article 363 (1)of the Constitution  of  India, this  Court has jurisdiction to entertain the  suit".   When the  matter was taken up for hearing on 5th March, 1951,  it was  considered desirable that issues should be  settled  on all matters in controversy in the suits, and all the  issues relating to the maintainability of the suits, including  the issue  of  jurisdiction,  should  be  tried  as  preliminary issues,  and the suits were adjourned to the 7th  March  for that  purpose.   The  parties then  filed  seventeen  agreed issues as arising out of the 494 pleadings, and they further agreed that issues 1, 3, 4, 5, 6 and 7 might be tried first.  These issues are as follows:     1.  Whether having regard to the subject matter  of  the suit and the provisions contained in article 363 (1) of  the Constitution  of India, this Hon’ble Court has  jurisdiction to entertain the suit ?     3.  Whether the Federal Court had jurisdiction to enter- tain  the suit under section 204 of the Government of  India Act, 1935, and particularly in regard to the questions as to the existence and validity of the agreement of merger ?     4. Whether this Court has jurisdiction to entertain  the suit?     5.  Whether  the  suit is maintainable in  view  of  the absence  of  the requisite notice to  the  defendants  under section 80 of the Civil Procedure Code ?     6.  Whether having regard to the provisions of the  Con- stitution,  the plaintiff has a legal capacity and is  enti- tled to maintain the suit ?     7. Whether this Court is competent to examine the valid- ity  of section 290-A of the Government of India Act,  1935, enacted by the Constituent Assembly ?     As I am of opinion that issue No. 1 should be found  for the defendants and the suits must fail on that ground,     I do not propose to consider the other issues,  although arguments  have been addressed to us on all of them.     The determination  of issue No. 1 turns on the proper  construc- tion of articles 363 (1) and 374 (2) which read thus: 363(1)  Notwithstanding  anything in  the  constitution  but subject  to the provisions of article 143, neither  the  Su- preme  Court nor any other Court shall have jurisdiction  in any dispute arising out of any provision of a treaty, agree- ment,  covenant, engagement, sanad or other similar  instru- ment which was entered into or executed before the commence- ment  of this Constitution by any Ruler of an  Indian  State and to which the Government of the Dominion of India or  any of its predecessor Governments was a party and which has 498 or has been continued in operation after such  commencement, or in any dispute in respect of any right accruing under  or any liability or obligation arising out of any of the provi- sions  of  this Constitution relating to  any  such  treaty, agreement,  covenant,  engagement, sanad  or  other  similar instrument."     "374.  (2) All suits, appeals and proceedings, civil  or criminal,  pending in the Federal Court at the  commencement of  this  Constitution shall stand removed  to  the  Supreme Court, and the Supreme Court shall have jurisdiction to hear

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and determine the same, and the judgments and orders of  the Federal  Court delivered or made before the commencement  of this Constitution shall have the same force and effect as if they had been delivered or made by the Supreme Court."     As  already pointed out, the sheet anchor of the  plain- tiffs’ case is the Instrument of Accession, which, according to  them, continues to operate in full force.  They  contend that  "the Dominion of India or the Constituent Assembly  of India  has no authority or power under the Indian  Independ- ence Act or otherwise to enact section 6 of the  Constituent Assembly  Act I of 1949 or to introduce section  290-A  into the  Government of India Act, 1935, or to legislate for  the plaintiff  State in any manner except with reference to  the matters specified in the Schedule to the said Instrument  of Accession"  (paragraph  18 of the plaint in Suit  No.  1  of 1950). They proceed to state that "the disputes between  the parties  comprise and involve questions on which the  extent or existence of a legal right depends and such disputes,  to which  the  said Acceding State is a party,  concern  (among other things) the extent of authority vested in the Dominion by  virtue of the Instrument of Accession of  the  plaintiff State."  And  prayer (b), to which reference has  been  made already, is for "a declaration that the Dominion  Government has no authority vested in it to assume any power or  juris- diction  beyond the matters specified in the  Instrument  of Accession" (paragraph 21).  These passages are reproduced in all the plaints.  On the other hand, the mainstay of the 496 defence is the subsequent agreement of December 1947, and it is  claimed  that the States Merger  (Governors’  Provinces) Order,  1949, under which the impugned merger was  effected, was  made  "on  the basis of the supersession  of  the  said Instrument  of Accession by the consent of parties".   (Vide paragraph 21 of the written statement of the first defendant which  was adopted by the second defendant).  And,  although the  defendants proceeded to state, on the aforesaid  basis, that there was no dispute regarding the Instrument of Acces- sion,  inasmuch as that basis is repudiated in the  plaints, such  repudiation obviously raises the dispute  whether  the Instruments  of  Accession are still in force or  have  been superseded. That dispute "arising", as it does, "out of’ the Instrument  of Accession in each case falls within the  pur- view of article 363 (1). It  was  said  that the suits involved  also  certain  other disputes  not  falling within article 363 (1) such  as,  for instance, those relating to the agreement of December, 1947, and  the validity of the Extra Provincial Jurisdiction  Act, 1947, of section 290-A of the Government of India Act, 1935, and of the States Merger (Governors’ Provinces) Order, 1949, etc.  The  controversies  regarding these  matters  are  but contentions  whereby the parties seek to establish,  on  the one  hand,  that the Instrument of Accession  still  governs their mutual rights and obligations and, on the other,  that that Instrument stands superseded and is no longer in force. Issues have no doubt been framed in regard to these  matters but they cannot in my opinion, be considered to be  disputes for  the purposes of article 131 or article 363  (1).  These articles  deal  with  the jurisdiction of  courts  and  they envisage  disputed claims to substantive legal  rights.  The claims  in these suits are undoubtedly based on the  respec- tive  Instruments  of  Accession  and  they  are  repudiated because   those Instruments  of  Accession are said to  have ’been  superseded  by reason of the  alleged   agreement  of December,  1947. These claims are disputes to which  article 363  (1) clearly applies.  The other so-called disputes  are

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only incidental and ancillary controversies 497 raised  with a view to support or overthrow the  claims  and cannot,  in  my opinion, affect the operation  of  the   bar under that Article any more than, for instance, issue No.  5 relating to the necessity for notice to the defendants under section 80 of the Civil Procedure Code.     Nevertheless, it is contended, the article has no appli- cation  here and it cannot operate retrospectively  and  ap- plies only to disputes arising after the commencement of the Constitution.  I am unable to accept this restricted  inter- pretation of article 363 (1).  While the Article undoubtedly postulates the  continued operation of the treaties,  agree- ments,  etc., entered into or executed before the  commence- ment of the Constitution and giving rise to the disputes, it does  not require, as a condition of its  application,  that such  disputes  should arise after the commencement  of  the Constitution.   I see no reason for importing a  restriction which  a  plain  grammatical construction  of  the  language employed  does not warrant.  It is not correct to  say  that the  wider  construction  would make the  operation  of  the article  retrospective, for the bar to interference  by  the court  operates only after the Constitution came into  force irrespective of the disputes concerned having arisen  before or after the commencement of the Constitution.   It was said that  the article should not be construed so as to  bar  the trial  of  pending suits or proceedings. But this is  not  a case  of  a  pending action in a court  which  continues  to function.  The Federal Court, in which the suits were  pend- ing, and which had exclusive jurisdiction to deal with them, was  abolished and a new court, the Supreme Court of  India, was  created with original jurisdiction strictly limited  to disputes relating to legal rights between  States recognised as such under the Constitution.  But as the States specified in Part B of the First Schedule had a semi-sovereign  status before  the Constitution, agreements with them were  in  the nature of international treaties and covenants, and disputes arising out of them would not lie in municipal courts.  That principle is given effect to, so far as the Supreme Court’s 498 original jurisdiction is concerned, by the proviso to  arti- cle  131 which defines such jurisdiction and, in  regard  to all courts and in respect of all proceedings, by article 363 (1).  The reason for applying that principle is greater, not less, in regard to such disputes arising bfore the Constitu- tion when these States, then known as Indian States, enjoyed a  higher  degree of political  freedom.   Furthermore,  the construction  contended for by the plaintiffs as applied  to article 131 would mean that the Court would, notwithstanding the proviso, have jurisdiction in respect  of such disputes, provided they arose before the commencement of the Constitu- tion.  If that had been intended, one would expect that such jurisdiction  would have been conferred by  positive  enact- ment,  instead  of being left to be derived  by  implication from  a  proviso intended to delimit the  jurisdiction  con- ferred by that article.  It seems to me, therefore, that the proviso  to article 131 must be construed as  applicable  to disputes  of  the kind mentioned arising  both  before  and. after  the   commencement   of  the  Constitution.   If  so, article  363  (1) must receive the  same  construction,  the language employed being essentially the same.     Even so, it is next contended, article 368, which enacts a  general  rule of non-interference by  courts  in  certain classes of disputes, cannot control the operation of article 874 (2), which is a special provision providing that  suits,

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appeals and proceedings pending in the Federal Court at  the commencement of the Constitution shall stand removed to  the Supreme  Court and that the Supreme Court shall have  juris- diction  to  hear  and determine the same.  There  would  be considerable  force  in this argument but  for  the  opening words of article 363 (1), namely, "notwithstanding  anything in  :this Constitution." These words clearly  indicate  that the bar to the exercise of jurisdiction enacted  in  article 363  controls the operation  of article 374 (2)and  excludes the rule of construction invoked by the plaintiffs. I find issue No. 1 for the defendants. 499     MAHAJAN  J.--On the 16th January, 1950, ten days  before the inauguration of the Constitution of India, the State  of Seraikella  (an Orissa State attached to the Eastern  States Agency) brought a suit in the Federal Court of India against the  Dominion  of India and the Province of  Bihar  for  the following reliefs:     (a)  Interpretation  of the relevant provisions  of  the Government of India Act, 1935, the Indian Independence  Act, 1947, and of the States Merger (Governors’ Provinces) Order, 1949;     (b)  Declaration  that the Dominion  Government  has  no authority  vested in it to assume any power or  jurisdiction beyond the matters specified in the Instrument of  Accession and  had  no authority  to delegate any power or  powers  in relation to the plaintiff State on the Provincial Government of Bihar or Orissa;     (c)  Declaration that the Extra Provincial  Jurisdiction Act, XLVII of 1947, the Constituent Assembly Act, 1 of 1949, section 290-A of the Government of India Act,. 1935, and the States Merger  (Governors’ Provinces) Order, 1949, are ultra vires,  illegal and inoperative in so far as they  are  made applicable  to  the  plaintiff  State  and that  all  orders made  or  purported to be made and/or all actions  taken  or purported to be taken thereunder are also illegal and  inop- erative;     (d)  Declaration that the Province of Bihar has  no  au- thority  or jurisdiction to carry on the  administration  of the plaintiff State and that the alleged merger of the  said State  in the Province of Bihar is illegal and  unauthorized and is not binding on the said State and its Ruler;     (e)  Declaration as to the rights of the parties and  as to  the  extent of authority  of the defendant  Dominion  of India over and in respect of the plaintiff States;     (f)  Declaration  that the plaintiff State  retains  its entity  and  territorial integrity that  its  administration should  in any event be carried on in the name of its  Ruler and that his rights and privileges as set out in 500 annexure "C" and his private properties as set out in annex- ure ’’D" remain unaffected;     (g)  Declaration that the Province of Bihar has  no  au- thority or jurisdiction over the plaintiff State and that it should  not interfere in any way with the said State or  the sovereignty of its Ruler."     All  the  different reliefs set out above  in  substance converge  on the relief stated in clause (f). The  plaintiff wants  a declaration from this court to the effect that  the State  of  Seraikella  retains its  entity  and  territorial integrity  and  has  not integrated itself with the territo- ries of the Indian Dominion.     This  suit was pending in the Federal Court on the  26th January, 1950, and under the provisions  of article 374  (2) of  the  Constitution it has to be heard and  determined  by

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this  Court.  The plaintiff claims the above reliefs on  the following allegations:     (1)  That on the 16th August, 1947, the plaintiff  State acceded   to  the Dominion of  India under the terms  of  an Instrument of Accession (Exhibit A) executed  by  its  Ruler and   accepted  by  the Governor-General of India, that  the said   instrument  could not be added to or  amended  unless such  addition or amendment was accepted by the Ruler by   a supplementary   Instrument;   that  no   such  supplementary Instrument was ever executed or accepted by the Ruler;     (2)  That  from  31st August, 1947,  the  Government  of Orissa  wrongfully and  illegally  purported  to  administer the  plaintiff State by virtue of an alleged  delegation  of authority by the Dominion Government by a notification dated 23rd  December, 1947, issued under an Act called  the  Extra Provincial  Jurisdiction Act, XLVII of 1947, that  the  said Act  is ultra vires and of no effect and does not  bind  the plaintiff and that the Act was not authorised by the Instru- ment of Accession;     (3)  That the defendant claims to rely for the  validity of its wrongful acts on an alleged agreement of 15th  Decem- ber, 1947, but the same is void and 501 inoperative  and that it never became a  concluded  contract between the parties;     (4)  That on the 18th May, 1948, the Province  of  Bihar wrongfully and illegally took over the administration of the State and issued an administrative order under Act XLVII  of 1947, that the Dominion of India had no authority beyond the Instrument  of Accession to delegate its power to the  Prov- ince of Bihar to administer the plaintiff State;     (5)  That on the 26th July, 1949, the  Governor  General wrongfully  and  illegally promulgated an order  called  the States  Merger  Order  of 1949, under which  the  State  was illegally  merged in the Province of Bihar, that this  order was made under section 290-A of the Government of India  Act which section was introduced in that Act by section 6 of the Constituent  Assembly Act, I of 1949, which was ultra  vires and illegal, that the Dominion of India had no authority  to bring  the plaintiff State within the provisions of  section 290-A  of the Government of India Act, that the  Constituent Assembly  Act, I of 1949, was inoperative as it was  enacted without the consent of the Governor-General, that the Merger Order prejudicially affects the existence and entity of  the State, its position and status and goes beyond the ambit  of section  290-A.   Shorn of all its verbiage, the  plaint  in substance  denies the agreement of the 15th December,  1947, on the foot of which the plaintiff State was integrated with the  territories of the Indian Dominion and on the basis  of which  Act XLVII of 1947 was made applicable to it, and  the notifications  mentioned in the plaint were issued.  On  the basis of the same  agreement section 290-A of the Government of  India  Act  was also made applicable  to  the  plaintiff State. By  reason of the denial of the agreement of the 15th December it is asserted by the plaintiff that the actions of the Dominion Government in first merging the plaintiff State with the Province of Orissa and subsequently merging it with the State of Bihar is unlawful and illegal; in other  words, the plaintiff alleges that in the absence Of any  supplemen- tary agreement as contemplated by 502 section 6, sub-section (3), of the Government of India  Act, 1935,  the Dominion of India had no authority whatsoever  to bring the plaintiff State within the ambit of the  different statutes mentioned above and that all its acts in  depriving

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the  State  of its legal entity are acts in  excess  of  the terms  of the Instrument of Accession and amount to  usurpa- tion  of  the sovereignty of the plaintiff State  which  was retained by it under that Instrument and that being so,  the plaintiff  is entitled to a declaration from this  Court  to the effect that the plaintiff State still retains its entity and  territorial integrity and that the various  orders  and laws  under which it has been integrated with the  State  of Bihar are void and ultra vires and are acts of  encroachment on the sovereignty of the State. Shortly stated, the  plain- tiff seeks by this suit to specifically enforce the terms of the Instrument of Accession by denying the existence of  the agreement  of 15th December, 1947, or by pleading its  inva- lidity.     The  suit brought against the Dominion of India and  the Province  of  Bihar has now to be continued  and  determined against  the Government of the Union of India and the  State of  Bihar  in view of the provisions of article 300  of  the Constitution.  Both  the defendants contested  the  suit  on similar  grounds.  The following agreed issues  between  the parties  bring out the points in dispute that arise  out  of the pleadings:     1.  Whether having regard to the subject matter  of  the suit and the provisions contained in article 363 (1) of  the Constitution  of India, this Hon’ble Court has  jurisdiction to entertain the suit ?     2. Whether I the plaintiff had ceased to be an  acceding State and a distinct legal entity at the date of the  insti- tution of the suit ?     3. Whether the Federal Court had jurisdiction to  enter- tain  the suit under section 204 of the Government of  India Act, 1935, and particularly in regard to the questions as to the existence and validity of the agreement of merger ? 503     4. Whether this Court has jurisdiction to entertain  the suit ?     5.  Whether  the  suit is maintainable in  view  of  the absence  of  the requisite notice to  the  defendants  under section 80 of the Civil Procedure Code ?     6.  Whether having regard to the provisions of the  Con- stitution,  the plaintiff has a legal capacity and is  enti- tled to maintain the suit ?     7. Whether this Court is competent to examine the valid- ity  of section 290-A of the Government of India Act,  1935, enacted by the Constituent Assembly?     8.  Whether  the States  Merger  (Governors’  Provinces) Order dated the 27th July, 1948, made by the Governor-Gener- al under section 290-A of the Government of India Act, 1935, is valid and competent ?     9. Whether the Extra Provincial Jurisdiction Act,  1047, was ultra vires and invalid ?     10.  Whether the delegation of authority by the  Govern- ment  of India to the Government of Orissa was  ultra  vires and illegal ?     11.  Whether the Constituent Assembly was  competent  to enact  the  Constituent  Assembly Act I of  1949  under  the provisions of the Indian Independence Act ?     12. Whether the Seraikella and Kharsawan States  (Amend- ment  Act) Order, 1948, is ultra vires and goes  beyond  the ambit of the Extra Provincial Jurisdiction Act, 1947 ?  13. Whether the plaint discloses any cause of action ? 14.  Whether the agreement dated 15th December, 1947, is   a concluded agreement between the parties ?  15.  Whether  the agreement dated 15th December,  1947,  is void and inoperative for want of consideration ?

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 16. Whether the agreement dated I5th December, 1947, is  a political agreement and not a civil contract?     17.  Whether  the administration of  the  plaintiff  was handed over to the Government of Bihar under 65 504 Notification No. 217-P dated 18th May, 1948, in consultation with the Ruler of the plaintiff State ?     With  the  consent  of parties it was  decided  to  hear arguments on issues 1, 3, 5, 6 and 7 as they could be decid- ed without taking any evidence.     Issue 1: As regards this issue, it was contended by  the learned Attorney-General that this Court has no jurisdiction "to determine any dispute arising out of any provision of  a treaty,  agreement,  covenant, engagement,  sanad  or  other similar instrument which was entered into or executed before the  commencement  of this Constitution by any Ruler  of  an Indian State and to which the Government of the Dominion  of India... ...was a party and which has or has been  continued in  operation  after  such  commencement...,  and  that  the present suit relates to a dispute of this nature and  though the  suit is removed to the records of this Court  from  the Federal  Court, this Court must decline to hear it.  Article 363 on the basis of which this contention is raised provides thus:     "Notwithstanding  anything  in  this  Constitution   but subject  to the provisions of article 143, neither  the  Su- preme  Court nor any other court shall have jurisdiction  in any dispute arising out of any provision of a treaty, agree- ment   .........  which was entered into or executed  before the  commencement  of this Constitution by any Ruler  of  an Indian State and to which the Government of the Dominion  of India or any of its predecessor Governments was a party  and which  has  or has been continued in  operation  after  such commencement  ......  ’’     The learned Attorney-General pointed out that particular subjects  were removed from the jurisdiction of  this  Court and  it  had  no power or authority to  adjudicate  on  them notwithstanding  any other provision in the ConstitUtion  to the contrary. The learned counsel for the plaintiff  contro- verted  this  contention and urged that article 363  of  the Constitution  had  no  retrospective effect  and  could  not affect Suits that were pending in the Federal Court and 505 which  under the provisions of article 374 (2) were  removed to  the Supreme Court and regarding which  jurisdiction  was conferred on it under the provisions of that article. It was said  that article 363 could only have application to  suits or disputes brought or raised after the 26th January,  1950, and  not to suits that had already been brought before  that date. It was further contended that the plaintiff’s suit did not  arise  out of any treaty or agreement  inasmuch  as  it denied the very existence of such a treaty or agreement.  It was further pointed out that the suit did not relate to  any of the subjects that were within the scope of this  article. In order to appreciate these contentions it is necessary  to refer to article 374 (2), which provides as follows:--     ’’All suits, appeals and proceedings, civil or criminal, pending  in  the Federal Court at the commencement  of  this Constitution  shall stand removed to the Supreme Court,  and the Supreme Court shall have jurisdiction to hear and deter- mine the same..."     The question for decision under this issue concerns  the true scope of the provisions’ of articles 363 and 374 (2) of the  Constitution. It is easy to frame difficult  conundrums

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on the material offered by the two articles in question  but when  one considers them without a desire  for  controversy, they  soon open to a clear and simple meaning.  Article  363 takes  away the jurisdiction of this Court on  certain  sub- jects  if  suits about them are instituted  after  the  26th January, 1950, or disputes concerning them arise after  that date, while article 374 (2) empowers this Court to hear  and to  determine suits which were pending in the Federal  Court of India on the 26th January, 1950, and which that court was competent to try and determine. There is, in my opinion,  no conflict  between  these two articles. They operate  on  two different fields.  The Federal Court of India had  jurisdic- tion  by  virtue  of the provisions of section  204  of  the Government  of India Act, 1935, to determine  certain  suits between  acceding  States and the Government of  India  with respect to certain subject matters and that jurisdiction was continued for the time being and was conferred on this 506 Court.  The  original jurisdiction to the Supreme  Court  is conferred  by article 131 in respect of similar suits but  ’ it  does not embrace all the subjects that were  covered  by section 204 of the Government of India Act, 1935.     In Keshavan Madhava Menon v. The State of Bombay (1)  it was held by this Court that the Constitution of India has no retrospective  operation. This proposition was not  disputed by the learned Attorney-General. Article 363 of the  Consti- tution has therefore to be given a prospective operation and as  such  it  cannot affect suits pending  before  the  26th January,  1950.  It was contended by the  learned  Attorney- General that though the article has no retrospective  opera- tion, yet the language employed in it affects the  jurisdic- tion of this court in respect of suits that were pending  in the Federal Court if they relate to subjects stated therein. Emphasis was laid on the opening words of the article. In my opinion,  this  contention is without  force.   The  opening words of the article do not make the article  retrospective. Once it is held that the whole article operates prospective- ly  on suits that are brought after the 26th January,  1950, or on disputes that arise after that date, then the  opening words of the article cannot affect cases transferred to this Court from the Federal Court under the provisions of article 374  (2)of  the Constitution.  It is a well  known  rule  of construction  of  statutes that no statute unless  it  be  a statute  dealing with procedure only should be construed  as having  retrospective effect, unless the  statute  expressly makes its provisions retrospective or  retrospective  effect must be given to it by necessary implication or  intendment. The  law leans against giving retrospective effect to  stat- utes. Reference in this connection may be made to the  deci- sion  of the Court of Exchequer in Moon v. Burden(2).  There the learned Barons of the Exchequer had to consider  whether section  18 of the Gaming Act, 8 and 9 Vict.,  Chapter  109, was  retrospective.  The words of that section were as  fol- lows :--     "And  be it enacted, that all contracts  or  agreements, whether by oral or in writing by way of gaming or (1) [1951] S.C.R. 228.       (2) [1848] 2 Ex. 22. 507 wagering, shall be null and void; and that no suit shall  be brought  or  maintained  in  any  court  of  law  or  equity for recovering any sum of money or valuable thing    alleged to be won upon any wager, or which shall have    been depos- ited  in the hands of any person to decide     the event  on which any wager shall have been made."        Although the section provided that no suit should  be

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brought  or maintained in any court for the  recovery     of any such sum, nevertheless the Court of Exchequer  held that section  did not apply to suits which  had  been  instituted though  not decided before the Act  came into force. It  was observed  by Baron Parke that the enactment "that  all  con- tracts or agreements, by  way of gaming or wagering shall be null  and void", if  it stood by itself, ought most  clearly to  be  construed   as applicable to  future  contracts  and agreements only,  and that if the next part stood alone,  it would,  though   not so clearly, be construed  to  apply  to future actions  only and it should be construed to mean, not that  an   action already brought should not  be  maintained but    that no action should afterwards be brought,  or,  if brought, maintained. In Beadling v. Coil (1), the Court   of Appeal  in  England held that the Gaming  Act,  1922,  which provided that no action under section 2 of the  Gaming  Act, 1855,  to  recover back money paid in    respect  of  gaming debts  "shall be entertained in any   court", did not  apply to actions which had been commenced before the Gaming Act of 1922  came into force. In Henshall v. Porter  (2),  McCardie J., went further   and held that the Gaming Act, 1922, which prohibited  all courts from entertaining such suits, did not apply  to cases where the cause of action had arisen  before the  passing of the Act, though no suit had been  instituted until the Act had been passed.  The rule laid down in  these cases  was expressly approved by the Federal Court of  India in  The  United Provinces v. Mst. Atiqa   Begum(3)  and  the learned Attorney-General frankly conceded that the rule laid down  therein  was not contested. It seems to me  that  this rule of construction  (1) [1922] 39 T.L.R. 128.      (3) [1940] F.C.R. 110.  (2) [1923] 2 K.B. 193. 508 has apposite application to the construction of article  363 of  the  Constitution and the article has  no  retrospective operation  and only affects disputes that would arise  after the  26th  January, 1950. As pointed out in  Willis  in  his Constitutional Law, the same principles govern the construc- tion of constitutions and the construction of statutes,  but that the dominant force in the construction of  constitution is  to construe one part in the light of the  provisions  in the other part, as the constitution is a logical whole, each provision  of  which is an integral part of itself.  In  the majority judgment of this Court in Keshavan Madhava Menon v. The State of Bombay (1) it was observed that the idea of the preservation  of  past inchoate rights  or  liabilities  and pending  proceedings to enforce the same is not  foreign  or abhorrent  to the  Constitution  of India and that idea  can be given effect to if article 363 (1)is construed as  above. Any  other  interpretation  of article 363  would  make  the provisions of article 374 (2) partially nugatory inasmuch as certain suits pending in the Federal Court under section 204 of the Government of India Act, though removed to this Court with  a  direction that they have to be  determined  by  us, could not be heard by this Court.  Such a result is  avoided if article 363 is construed as suggested by me.     The  contention raised by the learned counsel   for  the plaintiff that this suit does not arise out of any agreement as  it  questions  its very existence does  not  seem  sound because  the dispute in this case clearly arises out of  the provisions of the Instrument of Accession.     The next contention raised that the suit in so far as it questions  the validity of certain statutes by  interpreting the provisions of the Government of India Act and the  Inde- pendence  Act has force as these subjects fall  outside  the

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scope  of article 363.  The question of jurisdiction has  to be  determined  on the allegations made in  the  plaint  and cannot  be decided by considering the written statement  and the validity of the grounds alleged in the plaint. (1) [1951] S.C.R. 228. 509     For the reasons given above I respectfully beg to differ from the view of the majority of the Court on this issue and hold that issue 1 should be decided in favour of the  plain- tiff.     Issue  3:  Section 204 of the Government  of  India  Act provides as follows :--     "(1) Subject to the provisions of this Act, the  Federal Court  shall, to the exclusion of any other court,  have  an original jurisdiction in any dispute between any two or more of the following parties, that is to say, the Dominion,  any of the Provinces or any of the Acceding States, if and in so far as the dispute involves any question (whether of law  or fact)  on  which the existence or extent of  a  legal  right depends: Provided that the said jurisdiction shall not extend to- (a)  a dispute to which a State is a party, unless the  dis- pute-     (i)concerns  the  interpretation of this Act  or  of  an Order  in  Council made thereunder before the  date  of  the establishment of the Dominion, or of an order made  thereun- der  on  or after that date, or the  interpretation  of  the Indian Independence Act, 1947, or of any order made thereun- der, or the extent of the legislative or executive authority vested in the Dominion by virtue of the Instrument of Acces- sion of that State; or---"     Under  this  section  the Federal  Court  was  conferred exclusive jurisdiction on disputes between the Dominion, any of  the Provinces or the Acceding States, provided  that  in the case of the Acceding States the conditions laid down  in clause (a) cited above were fulfilled.  It was contended  by the  learned Attorney-General that the basic relief  claimed in  the plaint is that the Instrument of Accession  subsists and  that in substance the suit is to enforce the  terms  of the  Instrument  of Accession on the allegation  that  these have  been  contravened,  but  that the  fact  is  that  the Instrument  of Accession was superseded by the agreement  of the 15th December, 1949, and is no longer subsisting, 510 and  that  being so, the subject matter of this  dispute  is outside  the scope of the section.  It was also argued  that unlawful acts by one sovereign State over the sovereignty of another State would be in the nature of political acts (acts of State) and that the municipal courts could have no juris- diction to give relief concerning them.  It was not disputed that in those suits in which the execution of the supplemen- tary  agreement of the 15th December, 1949, was  not  denied the  controversy  raised in the plaint would be  within  the ambit  of  the section. In reply to  these  contentions  the following submissions were made on behalf of the  plaintiffs in this and in the connected suits:     (1)  That the subject matter of the suit  concerned  the construction  of  sections 6 and 101 of  the  Government  of India Act, 1935, and the point to be decided was whether  on the  correct construction of these sections the Dominion  of India was competent to pass the Extra Territorial  Jurisdic- tion  Act,  XLVII of 1947, so as to affect  the  plaintiff’s rights,  and could promulgate the various orders  concerning the merger of the plaintiff State; (2)  That on the allegations in the plaint, that     a  true

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construction  of  the  provisions of section 6  (a?  of  the Government of India Act, 1935, the alleged or admitted  sup- plementary instrument did not fall within its purview was  a matter within section 204 of that Act; (3)  That  it  having been alleged in the  plaint  that  the merger  order  in  pursuance of which  plaintiff  State  was merged  with the Province of Bihar was not within the  ambit of section 290-A, brought the suit within the provisions  of section  204  inasmuch as it was a question  concerning  the interpretation of section 290-A of that Act; (4)  That on the allegations in the plaint that on a  proper construction  of the Indian Independence Act, section  290-A was  not  a valid piece of legislation the suit  came  again within the ambit of the section; (5) That the defendant not having raised the plea of act  of State to defend its various actions taken qua 511 the  plaintiff State, the point could not be raised at  this stage,  and that in any case when the defendant had  pleaded that  its acts were done under the agreement of 15th  Decem- ber, 1949, it was not open to it to take that plea.     As already observed, the question of jurisdiction has to be decided purely on the allegations made in the plaint  and it seems clear that on those allegations the suit is  within the ambit of section 204.  It is, however, quite a different matter that those allegations may not on further inquiry  be substantiated.  Questions regarding the interpretation  both of  the Government of India Act and of the Indian  Independ- ence  Act have been canvassed in the plaint and it has  also been  contended that on a true construction of the scope  of the Instrument of Accession which subsists none of the  acts of the defendant can be justified.  The merger order, it has been  said, is in excess of the provisions of section  290-A of the Government of India Act and this raises the  question of  the  true scope and intent of that section.   The  issue therefore is decided in favour of the plaintiff.     Issue  6:  The decision of the question raised  by  this issue  depends on the determination of the question  whether the  plaintiff  State has been validly integrated  with  the Province  of Bihar.  If section 290-A of the  Government  of India  Act  is not a valid piece of legislation  or  if  the merger  order  issued under that section is  void,  then  it cannot be said that the plaintiff State no longer exists and has  been  merged  in the Province of  Bihar.   The  learned Attorney-General made reference to article 1 of the  Consti- tution,  which  defines the territories of  India  and  also referred to the schedule in which it has been noted that the territory  of the State of Bihar includes those  territories which under the provisions of section 290-A have been  inte- grated  with it.  This statement in the schedule has  to  be read  subject to the contention raised above.  It cannot  be denied  that an Instrument of Accession was executed by  the plaintiff State in favour of the Dominion of        66 512 India  and  the plaintiff by this suit alleges that  on  the true  construction  of that instrument the  plaintiff  State retains  its  integrity.   The plaintiff  State  denies  the execution  of the supplementary instrument and  also  denies that its merger is valid under its terms. Without  determin- ing the correctness of these allegations it is difficult  to hold that mere non-recognition of the State in the Constitu- tion  wipes  out  its existence and that  the  situation  is analogous to the case of death of a party in a suit. It  may be  pointed  out that under the terms of the  Instrument  of

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Accession  the plaintiff was not bound either to accept  the future  Constitution of India or to subscribe to  its  terms and  that being so, it would not be correct to find that  by the  coming into force of the Constitution  the  plaintiff’s suit  has abated. This Court has to decide the case  in  the situation in which it was instituted in the Federal Court of India  and  on the merits of the controversy it  has  to  be determined  whether  the State has been  integrated  validly with  the  territories of the Dominion of India or  not.  In these  circumstances, in my opinion, the plea  of  abatement raised  has no validity. It was argued that this Court  must accept  the Constitution and cannot go behind it,   This  is unquestionably  so, but in this case no question  arises  of going behind the Constitution, when the court is only  exer- cising  jurisdiction conferred on it by article 374  (2)  of the Constitution and deciding suits filed by Acceding States before the Constitution came into force.      Issue  5:In my judgment, the plea raised under  section 80 of the Code of Civil Procedure has no validity.  The Code of  Civil Procedure has not been made applicable as  in  the case  of High Courts by section 117 to the Federal Court  of India.   By  section  204 of the Government  of  India  Act, exclusive original jurisdiction was conferred on the Federal Court  in respect of suits between States and  States  which were  outside  the ken of the Code of  Civil  Procedure.  By section  214  of the Government of India  Act,  the  Federal Court  was  authorised to make its own rules  of  procedure. The Code in section 4 has enacted that it does not affect 513 any special jurisdiction or special forms of procedure. Rule 5 of the Federal Court Rules framed under Section 214 of the Government  of India Act lays down in clear and  unambiguous language  that none of the provisions of the Code  of  Civil Procedure  shall  apply to any proceedings  in  the  Federal Court unless specifically incorporated in these rules.   The provisions  of section 80 have not been incorporated in  the rules  and  that being so, section 80  cannot  affect  suits instituted  in  the Federal Court under section 204  of  the Government  of  India Act, 1935.  It was  contended  by  the learned  Attorney-General that the condition  precedent  for instituting a suit laid down in section 80 was not a  matter of procedure falling within the ambit of section 214 of  the Government of India Act and that the Federal Court could not make rules eliminating the condition precedent laid down  in section  80  before a suit could be instituted  against  the Government.  In my judgment, this contention is  not  sound. Section  214 lays down that the Federal Court may from  time to time with the approval of the Governor-General make rules of court for regulating generally the practice and procedure of  the court.  "Practice" in its larger sense  like  proce- dure, denotes the mode of proceeding by which a  legal right is  enforced,  as distinguished from the law that gives  and defines the  right.   "Procedure"  as  defined  in   Wharton means  the mode in which successive steps in litigation  are taken. It seems to me that what is enacted in section 80  is the  first step in litigation ’between the parties when  the cause of action is complete.  Section 80 in effect  provides that  an advance copy of the plaint should be served on  the defendant  and no suit should be instituted in  court  until the  expiry  of two months after such service.   Section  80 does  not define the rights of parties or confer any  rights on  the  parties. It only provides a mode of  procedure  for getting the relief in respect of a cause of action.  It is a part  of  the machinery for obtaining  legal  rights,  i.e., machinery as distinguished from its products.  [Vide  Boyser

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v. Minors(1).] (1) 50 L.J. Ex. 555. 514     Reference was made by the learned AttorneyGeneral to the decision  in  Bhagchand Dagadusa v. Secretary of  State  for India (1).  At page 357 their Lordships of the Privy Council examined  the view that had been taken in some of  the  High Courts in India on the applicability of section 80 to  suits for  injunction and it was held that these had been  decided on an erroneous assumption that a statutory provision as  to procedure  was subject to an exception in cases of  hardship or  in cases where irremediable harm might be caused, if  it was strictly applied.  It was pointed out that the Procedure Code must be read in accordance with the natural meaning  of its words and that section 80 being explicit and  mandatory, it  admitted of no implications or exceptions.  Their  Lord- ships then made these observations:--     "To argue as the appellants did, that the plaintiffs had a  right urgently calling for a remedy, while section 80  is mere  procedure,  is fallacious, for section  80  imposes  a statutory and unqualified obligation upon the Court." The learned Attorney-General  relying on those  observations contended  that  section  80 did not lay down  any  rule  of procedure but was a provision affecting substantive  rights. I  am unable to accede to this contention.  Their  Lordships did  not decide, and it is not possible to think  that  they would  make any such decision, that section 80 did  not  lay down  a  rule of procedure but was a  piece  of  legislation defining  substantive  rights. All that they said  was  that section  80  was not mere procedure but was of  a  mandatory character and more than this they did not say. Further, it seems to me that suits between States and States in  respect  of their political or public rights  and  which were wholly outside the ambit of the Code of Civil Procedure could  not be governed by a rule like,this which  aptly  ap- plies to cases of private persons seeking to enforce private rights  against  Government.  Parliament  while   conferring original jurisdiction on (1) L.R. 54 I.A. 338. 515 the Federal Court of India concerning these political rights could  not  be  intended to clog the  enforcement  of  those rights by the provisions of section 80 of the Code of  Civil Procedure.  The only conditions precedent for the  maintain- ability  of the suit are those laid down in section 204  and the hearing of these suits has to be in accordance with  the rules of procedure prescribed by the Federal Court of  India under  the  provisions of section 214 of the  Government  of India Act.     Issue 7: This issue was not very seriously argued by the learned counsel for the plaintiff.  The validity of  section 290-A  of  the Government of India Act was disputed  on  the ground  that the assent of the Governor-General was not  ob- tained  to  the  addition of this section in  the  Act.  The section  was  added to the Government of India  Act  by  the Constituent  Assembly  in  its sovereign  capacity  and  was assented  to  by  the President of the Assembly. The Govern- ment  of  India Act, 1935, was the Constitution Act  of  the Dominion  of India and the Constituent Assembly was  author- ized by the Independence Act to amend or alter it till  that Assembly  framed  a permanent Constitution  for  India.  The provisions of sections 6 and 8 of the Independence Act fully bear  this out.  In my opinion, there is no validity in  the contention  raised  on behalf of the  plaintiff  State  that section 290-A was not a valid piece of legislation and  that

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it  could  not become law till the assent of  the  Governor- General  was  obtained in respect of it. This Court  has  no jurisdiction  to examine the legislation passed by a  sover- eign body.     The result is that these suits, in my opinion, cannot be disposed  of on the preliminary issues and must  proceed  to trial  on the other issues. This order will also be  treated as an order in all the other connected suits.     DAS J.--I prefer to base my decision on issue No. 6  and I express no opinion on the other preliminary issues  argued before us.     The  seven  suits which have been posted before  us  for hearing on several preliminary issues came to be  instituted in the following circumstances: 516     On  different  dates hereinafter mentioned each  of  the plaintiff States acceded to the Dominion of India by  virtue of  Instruments  of Accession executed by  their  respective Rulers and  accepted by the Governor-General of India.  Each of  the said States also entered into standstill  agreements with the Dominion of India. Later on, each of the  plaintiff States entered into separate Articles of Agreement with  the GovernorGeneral  of  India.  Instruments  of  Accession  and standstill agreements entered into by the State of Seraikel- la (plaintiff in Suit No. 1 of 1950), the State of Dhenkanal (plaintiff  in Suit No. 2 of 1950), and the State  of  Baudh (plaintiff in Suit No. 3 of 1950) were executed on or  about August 16, 1947, by the State of Tigiria (plaintiff  in’Suit No. 4 of ’1950) and the State of Athgarh (plaintiff in  Suit No.  5  of  1950) on August 15, 1947, and by  the  State  of Baramba  (plaintiff in Suit No. 6 of 1950) and the State  of Narsinghpur  (plaintiff in Suit No. 7 of 1950) on  July  18, 1947,  and  November 11, 1947,  respectively.   Articles  of Agreement were executed by the States of Seraikella,   Dhen- kanal  and Baudh on December 15, 1947, and by the States  of Tigiria, Athgarh, Baramba  and  Narsinghpur on December  14, 1947.     By the Instruments of Accession, which were in the  same terms in all the cases, the respective Rulers of the  plain- tiff States acceded to the Dominion of India with the intent that  the Governor-General of India, the  Dominion  Legisla- ture, the Federal Court and any other administrative author- ity should, by virtue of the said Instruments but subject to the terms thereof and for the purposes only of the Dominion, exercise  in relation to the State concerned such  functions as  might  be vested in them by or under the  Government  of India Act, 1935, as in force in the Dominion of India on the 15th  of August, 1947.  By article 3 of the said  Instrument of  Accession,  the respective Rulers accepted  the  matters specified  in the Schedule as matters with respect to  which the Dominion Legislature might make laws for the  respective States.   The matters specified in the  Schedule  comprised, broadly speaking, 517 Defence,  External  Affairs  and  Communications. Article  5 provided  that  the  terms of the  Instrument  of  Accession should  not be varied by any amendment of the Government  of India  Act or of the Indian Independence Act,  1947,  unless such  amendment was accepted by the Ruler by  an  Instrument supplementary  to  the Instrument of Accession.   Article  7 provided that nothing in the Instrument of Accession  should be deemed to commit the Ruler of the State concerned in  any way to acceptance of any future Constitution of India or  to fetter  his discretion to enter into arrangements  with  the Government  of  India under any  such  future  Constitution.

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Article  8 preserved the continuance of the  Ruler’s  sover- eignty  in and over his State, and, save as provided  by  or under  the  Instrument  of Accession, the  exercise  of  all powers, authority and rights then enjoyed by him as Ruler of the State.     By the standstill agreements, which were also in similar terms, all agreements and  administrative arrangements as to matters  of common concern then existing between  the  Crown and  any Indian State continued as between the  Dominion  of India and the State.     By  article 1 of the Agreements,  the respective  Rulers ceded to the Dominion Government full and exclusive authori- ty,  jurisdiction  and  powers for and in  relation  to  the governance of the State and agreed to transfer the  adminis- tration of the State to the Dominion Government on the first day  of January, 1948, and the Dominion Government, as  from the  last mentioned date, became competent to  exercise  the ceded powers, authority  and jurisdiction in such manner and through such agency as it might think fit. Article 2 secured to  the respective Rulers their respective privy purse.   It may  here  be mentioned that the amount of the  privy  purse payable to the Rulers of the States of Seraikella, Dhenkanal and  Baudh  not having been agreed upon at the date  of  the signing  of the Articles of Agreements the space  meant  for inserting the amount of privy purse was left blank in the 518 Agreements  signed by the said Rulers.  Article 3  preserved the  Ruler’s  full ownership, use and enjoyment of  all  his private  properties  as  distinct  from  State   properties. Article  4  saved  all personal privileges  enjoyed  by  the Rulers  whether  within or outside the  territories  of  the States  immediately  before the 15th day  of  August,  1947. Article  5  guaranteed the succession according to  law  and custom to the Gaddi of the State and to the Ruler’s personal rights, privileges, dignities and titles.        On December 24, 1947, the Extra-Provincial  Jurisdic- tion  Act, 1947 (Act XLVII of 1947) received the  assent  of the  Governor-General and came into force. The  preamble  of the  Act and the definition, in section 2 of  ’extra-provin- cial  jurisdiction’  made it quite clear  that  the  Central Government could, under this Act, exercise  extra-provincial jurisdiction  over a State only if it had by treaty,  agree- ment  etc. acquired full and exclusive authority,  jurisdic- tion and powers for and in relation to the governance of the State. In the case of these seven States the Central Govern- ment could exercise extra-provincial jurisdiction over  them only on the strength of the Articles of Agreement of  Decem- ber, 1947. It could not exercise extra-provincial  jurisdic- tion by reason of the Instrument of Accession. On December 23, 1947, the Central Government issued a  noti- fication purporting to delegate its extra-provincial  juris- diction  with  respect  to the plaintiff  States  under  the Extra-Provincial Jurisdiction Act, 1947 (No. XLVII of  1947) to  the  Government  of Orissa which   at   once  began   to exercise  extra-provincial  jurisdiction   over  the   seven States.  It is not quite clear how there could be a  delega- tion of jurisdiction  before  the  Act came  into force.  Be that as it may, on May  18,  1948,  another notification was issued by the Central Government  under sections 3 and 4  of the Extra-Provincial Jurisdiction Act, 1947, cancelling  the previous  notification  with respect only to  the  State  of Seraikella  and  the State of Kharsawsn and  delegating  its jurisdiction  in or in relation to those two States  to  the Government of 519

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Bihar  and  on the same date the Government of  Bihar  after promulgating  the  Seraikella  and  Kharsawan  States  Order assumed jurisdiction over them.  The other States  continued to  be administered by the Government of Orissa.   The  Con- stituent  Assembly  by the Government of  India  (Amendment) Act,  1949 (No. 1 of 1949) which received the assent of  the President  of  the  Constituent  Assembly  on  January   10, 1949,  amended the Government of India Act, 1935, by,  inter alia, inserting the following section as section 290-A:--     "Administration  of certain acceding States as  a  Chief Commissioner’s Province or as part of a Governor’s or  Chief Commissioner’s  Province.--(1)  Where  full  and   exclusive authority,  jurisdiction and powers for and in  relation  to the  governance of any Indian State or of any group of  such States are for the time being exercisable by the Dominion of India, the Governor-General may by order direct-     (a)  that  the  State or the group of  States  shall  be administered in all respects as if the State or the group of States were a Chief Commissioner’s Province; or     (b)  that  the  State or the group of  States  shall  be administered  in all respects as if the States or the  group of  States form part of a Governor’s or a Chief  Commission- er’s Province specified in the order:     Provided that if any order made under clause (b) of this sub-section  affects  a Governor’s Province,  the  Governor- General shall before  making such order ascertain the  views of the Government of that Province both with respect to  the proposal  to make the order and  with respect to the  provi- sions to be inserted therein"     It  will be noticed that the Governor-General could  act under the new sect-ion only where full and exclusive author- ity,  jurisdiction  and powers for and in  relation  to  the governance  of  any  Indian State were for  the  time  being exercisable  by the Dominion of India.  It follows that  the Governor-General  could,  under this new  section,  make  an order  of merger with respect to these seven States only  on the strength of the Articles 67 520 of Agreements of December 1947.  He could not make any  such order by reason of the Instrument of Accession.     In  exercise of the powers conferred on him by  the  new section  290-A,  the  Governor-General, on  July  27,  1949, promulgated  an Order called the States’ Merger  (Governors’ Provinces) Order, 1949. Section 3 of this Order provided  as follows :--     "As from the appointed day, the States specified in each of the Schedules shall be administered in all respects as if they formed part of the Province specified in the heading of that Schedule; and accordingly, any reference to an acceding State in the Government of India Act, 1935, or in any Act or Ordinance  made on or after the appointed day shall be  con- strued  as  not including a reference to any of  the  merged States,  and any reference in any such Act or  Ordinance  as aforesaid  to  a Province specified in a  Schedule  to  this Order shall be construed as including the territories of all the States specified in that Schedule."     Schedule  III  of  the Order showed that  the  State  of Seraikella was one of the two States merged in the  Province of Bihar and Schedule IV showed that the other Orissa States including  the plaintiffs in Suits Nos. 2 to 7 of 1950  were merged in the ’Province of Orissa.     Being aggrieved by the enactments, orders and  notifica- tions  resulting  in their merger with Bihar or  Orissa  the plaintiff  States  filed the present suits  in  the  Federal

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Court  of India in its Original Jurisdiction. Suit No. 1  of 1950  was filed on or about January 15, 1950, and the  other six suits were filed on January 23, 1950. The defendants  in the suits are two in number. The first defendant in all  the suits  is the Dominion of India and the second defendant  in Suit No. 1 iS the State of Bihar while the second  defendant in  all  the other suits is the State of  Orissa.  The  main written  statements in all the suits are filed on behalf  of the  first defendant and the second defendant, the State  of Bihar or the State of Orissa, as the case may be, has adopt- ed 521 the  contentions set forth in the written statements of  the first  defendant. An additional written statement was  filed by the first defendant raising another preliminary issue  of law which has also been adopted by the second defendant.     The  Constitution  of India having come  into  force  on January 26, 1950, all these suits, by virtue of article  374 (2),  stood removed to this Court which was created  by  the Constitution.   The learned Chamber Judge directed that  the issue  of law raised in the additional written statement  be tried as a preliminary issue. When the suits were called  on for  hearing  on that preliminary issue,  learned  Attorney- General  handed in a list of 17 issues and it was agreed  by counsel on both sides that the following issues only  should be determined first as preliminary issues :--     1.  Whether having regard to the subject-matter  of  the suit  and the provisions contained in article 363(1) of  the Constitution  of India, this Hon’ble Court has  jurisdiction to entertain the suit ?     3. Whether the Federal Court had jurisdiction to  enter- tain  the suit under section 204 of the Government of  India Act, 1935, and particularly in regard to the questions as to the existence and validity of the agreement of merger ?     4. Whether this Court has jurisdiction to entertain  the suit ?     5.  Whether  the  suit is maintainable in  view  of  the absence  of  the requisite notice to  the  defendants  under section 80 of the Civil Procedure Code ?     6.  Whether having regard to the provisions of the  Con- stitution the plaintiff has a legal capacity and is entitled to maintain the suit ?     7. Whether this Court is competent to examine the valid- ity  of section 290-A of the Government of India Act,  1935, enacted by the Constituent assembly ?     Re Issue No. 6.--1 take up issue No. 6 which appears  to me  to be decisive. Article 1 of the Constitution says  that India  shall  be a Union of States and that the  States  and territories thereof shall be the States and 522 their territories specified in Parts A, B and C of the First Schedule. The First Schedule to the Constitution in Parts A, B and C sets out the names of the States and indicates  what the  territories  of the States shall be comprised  of.  The third paragraph in Part A provides as follows :-     "The territory of each of the other States in this  Part shall comprise the territories which immediately before  the commencement  of  this Constitution were  comprised  in  the corresponding Province and the territories which, by  virtue of  an order made under section 290-A of the  Government  of India Act, 19.38, were immediately before such  commencement being administered as if they formed part of that Province.     The argument is that as the territories of the plaintiff States.,  by virtue of the States’ Merger (Governors’  Prov- inces) Order, 1949, made under section 290-A of the  Govern-

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ment  of  India  Act, 1935,  were  immediately  before   the commencement  of  the  Constitution being administered as if they  formed  part  of  the Provinces of Bihar  or   Orissa, the  territories of the States of Bihar  and  Orissa  there- fore   now  comprise  the   territories  of   the  plaintiff States. The subjects of the plaintiff States have now become the citizens of India, their territories have been merged in the  State  of Bihar or Orissa, as the case  may  be.  These States are no longer recognised as States in Parts A, B or C of  the First Schedule to the Constitution.  In short,  they have  ceased  to  be States so far as  our  Constitution  is concerned  and consequently they have no legal existence  as acceding  States  which  this Court which is  bound  by  the Constitution  may recognise.  These States, in  the  circum- stances, cannot come to this Court to enforce their  politi- cal rights and are no longer entitled to maintain the suits. Learned  counsel for the plaintiffs, however, contend  that, the  order  made under section 290-A of  the  Government  of India Act, being ultra vires and illegal, the territories of the  States were never lawfully administered as part of  the Provinces of Bihar or Orissa and, therefore, the territories of the State of Bihar or Orissa cannot be 523 said to comprise the territories of the plaintiff States. It seems  to me that the contention of the learned counsel  for the plaintiffs is misconceived, for the part of the sentence beginning  with  the  words "which  immediately  before  the commencement" and ending with the words "formed part of that Province"  are but description of the territories which  the Constitution  states are to be comprised in the  territories of the States of Bihar or Orissa.  The validity or otherwise of  the order made under section 290-A of the Government  of India  Act  has no relevancy.  The question is  whether  the territories  of  the  plaintiff States were  in  fact  being administered  as  if they formed part of  the  Provinces  of Bihar  or Orissa and whether such territories were being  so administered by virtue of an order made under section  290-A of the Government of India Act.  There can be no doubt  that the  answer must be in the affirmative. This Court is  bound by the Constitution and cannot question the validity of  any of  its provisions. The Constitution says that the  territo- ries  of  Bihar and Orissa shall  comprise  the  territories specified  in Part A and this Court must accept  that  posi- tion.   None of these States is included amongst the  States named in Parts A, B and C. Our Constitution does not  recog- nise any of these States as an acceding State.  The  Govern- ment  of India Act which recognised them as acceding  States has  been repealed. Therefore, the plaintiff States have  no existence in the eye of the Constitution and cannot come  to this  Court  to enforce their political rights.  It  is  not necessary to consider whether in international law there may be a State without any territory or without any subject such as  many of the States, which during the last war  had  been overrun  by  the invaders and which  functioned  in  foreign countries  claimed  to be.  The problem before us  is  quite different.  The States which are plaintiffs in suits Nos. 4, 5,  6  and 7 ceased to be acceding States by reason  of  the Merger  agreement of December 1947 admittedly  concluded  by their respective Rulers. In any event, our Constitution  has quite clearly eliminated these States as such by absorbing 524 their territories with the States of Bihar or Orissa. As our Constitution  does  not recognise these States  as  acceding States or even as States, this Court cannot recognise  these States or their political rights. These cases may have  been

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within the jurisdiction of the Federal Court when they  were instituted,  but since then the Government of India Act  has been repealed and the new Constitution has come into  force. Under  ’the Constitution, these States do not exist at  all. Assuming that these States are still in existence  notional- ly, they have, at any rate, ceased to be States of the  kind which could maintain a suit under section 204 of the Govern- ment  of India Act.  After the repeal of the  Government  of India  Act and the commencement of the Constitution none  of these States is an acceding State which may continue a  suit filed  under  section 204.  The suits  must,  therefore,  be regarded  as having abated by reason of the  elimination  of the plaintiff States as States or acceding States just as an ordinary  suit would abate on the death of a plaintiff.   In my judgment, these suits can no longer be continued in  this Court.     In view of my decision on issue No. 6, the other prelim- inary issues need not be considered. Suits dismissed.     Agent  for the plaintiffs in Suits Nos. 1, 3 &  4:  R.R. Biswas.     Agent  for  the  plaintiffs in Suits Nos. 2  &  5:  P.K. Chatterjee.     Agent  for  the  plaintiffs in Suits Nos. 6  &  7:  S.C. Bannerjee. Agent for the defendants: P.A. Mehta, 525