29 April 1954
Supreme Court


Case number: Writ Petition (Civil) 37 of 1953






DATE OF JUDGMENT: 29/04/1954


CITATION:  1954 AIR  447            1955 SCR  415  CITATOR INFO :  RF         1955 SC 817  (11)  R          1958 SC 228  (16)  F          1958 SC 816  (25,27)  R          1960 SC1355  (33)  R          1962 SC 445  (21)  R          1962 SC1737  (11,13)  D          1963 SC 222  (16)  O          1964 SC1043  (3,13,15,16,19,20,21,26,32,33,  RF         1967 SC 750  (5)  MV         1971 SC 530  (364)  RF         1973 SC1461  (1953)  E&R        1978 SC  68  (99)  RF         1981 SC1946  (18)  R          1990 SC 522  (11)

ACT:      Constitution of India, arts. 5,19(f), 31(1), proviso to art. 131 and art. 363-Effect of the  Constitution-Erst-while Indian  States-Forming part of India-Any  State  Government- Whether  can  do  anything in the nature of  act  of  State- Sovereign-whether can plead act of State against the citizen -Jagirs  and Muafis by Rulers of Indian States  having  full autonomy  and sovereignty prior to the  Constitution-Whether can be avoided after the Constitution when not challenged up to  the date of the Constitution-Courts Jurisdiction of-  To question the accessions and such grants. 416

HEADNOTE:      The  petitioners were granted in January, 1948,  Jagirs and  Muafis by the Ruler of Sarila State in one village  and by  the  Ruler  of Charkhari State in  three  villages.   In March,  1948, a Union of 35 States including the  States  of Sarila  and  Charkhari was formed into the United  State  of Vindhya Pradesh.  The Vindhya Pradesh  Government  confirmed these  grants in December, 1948, when its  Revenue  Officers interfered  with  them  questioning  their  validity.    The integration of States however did not work well and the same 35  Rulers entered into an agreement in December, 1949,  and



dissolved the newly-created State as from 1st January, 1950, each Ruler acceding to the Government of India all authority and  jurisdiction  in  relation to the  Government  of  that State,  the  Instrument  being called  the  Vindhya  Pradesh Merger agreement.  Article VIII of the Instrument stated:-      "No enquiry shall be made by or under the authority  of the  Government of India, and no proceeding shall  be  taken in’  any Court against the Ruler of any  covenanting  State, whether  in a personal capacity or otherwise in  respect  of anything  done  or omitted to be done by him  or  under  his authority  during the period of his administration  of  that State."  The  States  which  formed  Vindhya  Pradesh   were transformed  into  a Chief Commissioner’s Province  on  23rd January,  1950.   The four villages (called  enclaves)  were taken  out  of  this Province on  25th  January,  1950,  and absorbed into the-United Provinces (now Uttar Pradesh) by an Order  of the Governor-General under the provisions  of  the Government  of  India  Act, 1935.  The  grant  of  the  four villages made in favour of the petitioners in January, 1948, was  revoked  in August, 1952, by the  Government  of  Uttar Pradesh  in consultation with the Government of  India,  the operative  part  of the revocation order being made  by  the Governor of Uttar Pradesh.     Held  (i) that the petitioners were entitled to  a  writ under  art. 32(2) of the Constitution inasmuch as the  order revoking the grant of Jagirs and Muafis in the four villages violated art. 31(1) and art. 19(f) of the Constitution.      (ii) No  State Government has the right to do  anything in the nature of an act of State.      (iii)     The  accessions by the Rulers of  States  and their acceptance by the Dominion of India were acts of State and  no  Municipal Court could  question  their  competency. Article 363 and the proviso to art. 131 of the  Constitution bars   the  jurisdiction  of  Courts  in  India  after   the Constitutional  to  settle any dispute arising  out  of  the accessions and their acceptance.  All that the Courts can do is to register the factum of such accessions.      (iv)The  properties in  question were  properties  over which  the Rulers had absolute right of disposition  at  the date  of the grants.  The grants were absolute in  character and would under any civilised system of law pass an absolute and  indefeasible title to the grantees.  Assuming (but  not deciding) that they were defeasible at the were will of  the sovereign the fact remained that 417 they   were  neither  resumed  by  the  Former  Rulers   nor confiscated by the Dominion of India as an act of State  and up to the 26th of January, 1950, the right and title of  the petitioners  to  continue  in  possession  was  good.    The Constitution  by  reason of the authority derived  from  and conferred  by the people of India destroyed all vestiges  of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State in the present case was seeking to  uphold.   The Dominion of India and all those  who  were invited  there  sat  in  the  Constituent  Assembly  not  as conquerors  and  conquered, not as those who  ceded  and  as those  who absorbed but as the sovereign peoples  of  India, free  democratic equals.  Every vestige of  sovereignty  was abandoned  by  the  Dominion of India  and  the  States  and surrendered  to the peoples of the land who framed  the  new Constitution of India.       (v) Under art. 5 of the Constitution all the residents of the then Indian States including the Rulers and people of Sarila  and Charkhari, viz., those who made the  grants  and



those  who received them and those who were seeking to  make the  confiscation  as an act of State,  became  citizens  of India.      (vi) No sovereign can exercise an act of State  against its own subjects and an act of State can never be  exercised against one who has always been a citizen from the beginning in  territory which has from its inception belonged  to  the State seeking to exercise that right. Case law reviewed.

JUDGMENT: ORIGINAL JURISDICTION: Petition No.37 of 1953. Under article 32 of the Constitution of India, praying  that the  Order of the Governor of Uttar Pradesh dated  the  29th August,  1952,  revoking the grants made by  the  Rulers  of Charkhari  and  Sarila  in  favour  of  the  petitioners  be declared void.      K.   S. Krishna Swamy Iyengar, and S. P. Sinha  (Bishan Singh and S. S. Shukla, with them) for the petitioners. Gopalji Mehrotra and C. P. Lal for the respondent. C.   K. Daphtary, Solicitor-General for India (G.  N. Joshi, Porus  -A.   Mehta  and P. G. Gokhale,  with  him)  for  the Intervener.     1954.  April 29.  The Order of the Court was  pronounced by      BosE J.-This is a petition under article 32 of the  the Constitution.   It  raises an important question  about  the post-Constitutional rights to property situate in 418 Indian States that were not part of British India before the Constitution  but  which acceded to the  Dominion  of  India shortly before the Constitution and became an integral  part of the Indian Republic after it.       The States in question here are Charkhari and  Sarila. In  British  days  they were independent  States  under  the paramountcy  of  the British Crown.  They  acknowledged  the British  Crown  as the suzerain power and  owed  a  modified allegiance to it, but none to the Government of India.     In  1947  India  obtained  Independence  and  became   a Dominion  by reason of the Indian Independence Act of  1947. The  suzerainty of the British Crown over the Indian  States lapsed  at the same time because of section 7 of  that  Act. Immediately  after,  all  but three  of  the  Indian  States acceded  to  the new Dominion by  executing  Instruments  of Accession.  Among them were the two States with which we are concerned.   The  new  Dominion of India  was  empowered  to accept  these  accessions  by a suitable  amendment  in  the Government  of  India  Act, 1935.  The  sovereignty  of  the acceding  States was expressly recognised  and  safeguarded. The  operative  words of the Instrument of  Accession  which each Ruler signed were-    " Now Therefore I............ Ruler  of.................. in the exercise of my sovereignty in and over my said  State do hereby execute this my Instrument of Accession." And clause 8 provided that-     "Nothing  in this Instrument affects the continuance  of my sovereignty in and over this State, or, save as  provided by  or  under this Instrument, the exercise of  any  powers, authority  and  rights now enjoyed by me as  Ruler  of  this State or the validity of any law at present in force in this State."     Broadly  speaking,  the effect of the accession  was  to retain  to  the Rulers their full autonomy  and  sovereignty



except  on  three subjects: Defence,  External  Affairs  and Communications.   These  were  transferred  to  the  Central Government of the new Dominion. 419 One  other  clause is important, clause  6,  which  provided that-      "Nothing in this Instrument shall empower the  Dominion Legislature  to make any law for the State  authorising  the compulsory acquisition of land for any’ purpose...........       About the same time, each acceding Ruler entered  into a  standstill  agreement with the Dominion  of  India.   The following clause is relevant:       "Nothing  in this agreement includes the  exercise  of any paramountcy functions."      The  alienations now in question were made in  January, 1948.  On 5th January, 1948, the Ruler of Sarila granted the village  Rigwara  to the petitioners and  on  28th  January, 1948, the Ruler of Charkhari granted the villages Patha, Kua and Aichana, also to the petitioners.     After  this, on 13th March, 1948, thirty five States  in Bundelkhand and Baghelkhand (including Charkhari and Sarila) agreed  to unite themselves into one State which was  to  be called  the, United State of Vindhya Pradesh.  In  pursuance of  this agreement each of the thirty five Rulers  signed  a covenant  on 18th March, 1948, which brought the  new  State into being.  It is important to note that this was a  purely domestic  arrangement  between themselves and not  a  treaty with   the  Dominion  of  India.   Each  Ruler   necessarily surrendered  a fraction of his sovereignty to the whole  but there  was no further surrender of sovereign powers  to  the Dominion of India beyond those already surrendered in  1947, namely   Defence,  External  Affairs   and   Communications. Despite the readjustment, the sum total of the sovereignties which had resided in each before the covenant now resided in the  whole and its component parts: none of it was  lost  to the Dominion of India.       Soon  after  this, the Revenue Officers of  the  newly formed  Vindhya  Pradesh Union tried to interfere  with  the grants  made  by certain Rulers of  the  integrating  States before  the  integration;  among them  were  the  grants  in question  here.  This occasioned complaints to  the  Vindhya Pradesh Government and that 420 Government  decided  on 7th December, 1948, to  respect  the impugned grants.  The Revenue Minister’s order of that  date runs-     "After considering over the whole question it has  ,been decided  that such grants made by the Rulers before  signing the  covenant should be respected, because  constitutionally the  V.P. Government should not refuse recognition  to  such grants  unless  they  are directed otherwise  by  the  State Ministry."    Orders  were accordingly issued to the  Revenue  Officers concerned to "abstain from interfering in such grants." This decision  was  communicated to the Rulers of  Charkhari  and Sarila  on  13th  March, 1949.  They were  told  that  their grants would be respected.      The  integration  did not work satisfactorily,  so,  on 26th  December,  1949, the same thirty five  Rulers  entered into   another  agreement  abrogating  their  covenant   and dissolving  the  newly created State as  from  1ST  January, 1950.   By  the  same instrument each  Ruler  ceded  to  the Government  of  the Indian Dominion as from  the  same  date "full and exclusive authority, jurisdiction and powers  for, and  in relation to, the governance of that State."  Article



II provided that    "As  from the aforesaid day, the United State of  Vindhya Pradesh  shall cease to exist, and all the property,  assets and liabilities of that State, as well as its rights, duties and obligations, shall be those of the Government of India." This  Instrument  was  called  the  Vindhya  Pradesh  Merger Agreement.  The Government of the Indian Dominion was also a party  and its Secretary in the Ministry of States  appended his signature to the document.  Each Ruler was guaranteed  a privy  parse and all the personal privileges, dignities  and titles  enjoyed by him at the date of the Agreement.   Imme- diately after the clause guaranteeing the privy purse  comes the following-                          Article IV (2) The said amount is intended to cover all the expenses of the Ruler and his family............ and shall 421     neither  be increased nor reduced for any  reason  what- soever.  " The following clauses are also relevant:                          Article VI "The   Government  of  India  guarantees   the   succession, according   to  law  and  custom,  to  the  gaddi  of   each Covenanting State, and to the personal rights,  privileges,- dignities and titles of the Ruler thereof.                         Article VII     (1)The Ruler of each Covenanting State shall be entitled to  the  full ownership, use and enjoyment  of  all  private properties (as distinct from State properties) belonging  to him  on  the date of his making over the  administration  of that State to the Raj Pramukh in pursuance of the Covenant.     (2)If  any  dispute  arises as to whether  any  item  of property  is  the  private property of the  Ruler  or  State property,  it shall be referred to a judicial officer to  be nominated  by the Government of India, and the  decision  of that  officer  shall  be final and binding  on  all  parties concerned.                         Article VIII      No  enquiry shall be made by or under the authority  of the Government of India, and no proceeding shall lie in  any Court,  against the Ruler of any Covenanting State,  whether in a personal capacity or otherwise, in respect of  anything done  or  omitted to be done by him or under  his  authority during the period of his administration of that State."      The Dominion Government took over the administration of the  States  which formed Vindhya Pradesh  on  1st  January, 1950,  and decided to form them into a Chief  Commissioner’s Province.   It did this by a Notification of  the  Governor- General  dated  22nd  January, 1950,  and  brought  the  new Province  into  being on 23rd January, 1950.  But  the  four villages we are concerned with (called enclaves) were  taken out  of  this Province on 25th January, 1950,  and  absorbed into the United Provinces (now Uttar Pradesh) by an Order of the Governor-General entitled 422 the  Provinces  and States (Absorption of  Enclaves)  Order, 1950.   This  Order was made under sections 290,  290-A  and 290-B of the Government of India Act, 1935.     The  portions  of that Order relevant  for  the  present purpose are these:     "  3  (1)  As  from the  appointed  day,  every  enclave specified in the First Schedule. shall cease to form part of the  surrendering unit, and shall be included in,  and  form part of, the absorbing unit.................    "6.  All  property and assets within  an  enclave  which,



immediately   before  the  appointed  day,  vested  in   the Government of the surrendering unit shall, as from that day, vest in the Government of the absorbing unit.    7.All   rights,  liabilities  and  obligations,   whether arising out of contract or otherwise, of the Government of a surrending unit in relation to an enclave shall, as from the appointed  day, be the rights, liabilities and  obligations, respectively, of the Government of the absorbing unit.    8.All laws in force in an enclave immediately before  the appointed day shall, as from that day, cease to be in  force in that enclave, and all laws in force in the absorbing unit shall, as from that day, extend to, and be in force in, that enclave." The Constitution came into force on 26th January, decided to reopen the question of revocation which the Vindhya  Pradesh Government  had settled on 7th December, 1948, and  on  29th August,  1952,  more  than two and a half  years  after  the Constitution and four and a half years after the grants, the Uttar Pradesh Government,in consultation with the Government of  India, revoked the grants with which we  are  concerned. The Governor of Uttar Pradesh issued the following order  on 29th August, 1952 :    " Subject : Voidable grants of Jagirs and Muafis made  by the Rulers of Charkhari and Sarila before the integration. 423 With  reference  to your endorsement  No.  3885/XV  110-1950 dated  September  30,  1950,  on the  above  subject,  I  am directed to say that, in consultation with the Government of India, the Governor has decided to revoke the grants made by the  rulers of Charkhari and Sarila on or  after  January.1, 1948, to the members of their families relations and others     Copies  of  this order were forwarded to the  Rulers  of Charkhari and Sarila on 29th January, 1953.     This occasioned the present petition under article 32 of the  Constitution against the State of Uttar  Pradesh.   The Union  Government  was allowed to intervene.  The  State  of Uttar Pradesh made the following affidavit in reply:     "(3) That immediately before or after the signing of the agreement some Rulers of the Indian States constituting  the Vindhya  Pradesh Union, whose territories were  subsequently absorbed in the Uttar Pradesh, had granted jagirs and muafis of  land  to  their near relations  mala  fide  and  thereby indirectly increased their privy purse. (4)  That it appears that Vindhya Pradesh Government  opened the  case  of  mala  fide  grants  made  by  the  rulers  of integrating  States and at their instance the Government  of India issued instructions to the Uttar Pradesh Government to do the same. (9)......  The  effect of these grants is  to  increase  the privy  purse of the ruler...... whose responsibility it  was to support the grantees."      The  operative  order  of revocation was  made  by  the Governor of Uttar Pradesh, and under the Constitution it  is clear that no State Government has the right to do  anything in  the nature of an act of State, but in view of  the  fact that  the  revocation  was made  in  consultation  with  the Government  of  India, we were I asked to  treat  the  Uttar Pradesh  Governor as a delegate of the  sovereign  authority whose act has been approved and ratified by that  authority, along the 424 lines  of  Buron  v. Denman(1), The Secretary  of  State  in Council of India v. Kamachee Boye Sahaba(2) and Johnstone v. Pedlar(3),  and  to decide on that basis whether  the  Union Government had the right and power to revoke these grants as



an act of State.    Jurists  hold  divergent  views on  this  matter.   Atone extreme  is  the view of the Privy Council in  a  series  of cases.    Their   effect  was   summarised   in   Vajesingji Joravarsingji v. Secretary of State for India in  Council(1) and again in Secretary of State v. Sardar Rustam Khan(5)  in the following words:    "A  summary of the matter is this : when a  territory  is acquired by a sovereign State for the first time that is  an act  of State.  It matters not how the acquisition has  been brought about.  It may be by conquest, it may be by  cession following  on treaty, it may be by occupation  of  territory hitherto unoccupied by a recognised ruler.  In all cases the result  is  the same.  Any inhabitant of the  territory  can make  good  in the municipal Courts established by  the  new sovereign  only such rights as that sovereign’ has,  through his  officers, recognised.  Such rights as he had under  the rule  of predecessors avail him nothing.  Nay more, even  if in  a  treaty  of  cession it  is  stipulated  that  certain inhabitants should enjoy certain rights, that does not  give a  title to those inhabitants to enforce these  stipulations in the municipal Courts.  The right to enforce remains  only with the high contracting parties;" also in the Secretary of State in Council of India v. Kamachee Boye Sahaba (2) and in Johnstone v. Pedlar(6 ) as follows:    "  Of the propriety or justice of that act,  neither  the Court  below  nor the Judicial Committee have the  means  of forming, or the right of expressing, if they had formed, any opinion.   It  may  have  been just  or  unjust  politic  or impolitic,  beneficial  or injurious, taken as a  whole,  to those    whose   interests   are   affected.    These    are considerations into which their Lordships cannot enter.   It is sufficient to say that; even if a wrong has (1)  2 Exch.  Rep. 167. (2)  7 M. I. A. 476 at 540. (3) [1921] 2 A. C. 262 at 279. (4)51 1. A. 357 at 36o. (5)68 I. A. 1o9 at 124. (6)[1921] 2 A.C. 262 at 280, 425 been  done,  it is a wrong for which no Municipal  Court  of justice can afford a remedy.". According  to  the Privy Council in Secretary of  State  for India  in Council v. Bai Rajbai (1) and also  in  Vajesingji Joravarsingji  v.  Secretary of State for India  in  Council (9),  the  burden  of proving that  the  new  sovereign  has recognised  the old rights lies on the party  asserting  it. The learned Solicitor-General relies on these cases. At  the  other  extreme is the view of  Chief  Justice  John Marshall of the United States Supreme Court.  He said in the United States v. Percheman (3) in the year 1833:     "It  may  not  be unworthy of remark  that  it  is  very unusual, even in cases of conquest, for the conqueror to  do more than to displace the sovereign and assume dominion over the country.  The modern usage of nations, which has  become law,  would be violated; that sense of justice and of  right which is acknowledged and felt by the whole civilised  world would  be outraged, if private property should be  generally confiscated, and private rights annulled.  The people change their allegiance; their relation to their ancient  sovereign is dissolved; but their relations to ’each other, and  their rights  of  property,  remain undisturbed. If  this  be  the modern rule even in cases of con-’ quest, who can doubt  its application to the case of an amicable cession of  territory ?......... A cession of territory is never understood to  be



a cession of the property belonging to its inhabitants.  The king  cedes that only which belonged to him.  Lands  he  had previously  granted  were not his to  cede.   Neither  party could  so  understand  the  cession.   Neither  party  could consider  itself  as  attempting  a  wrong  to  individuals, condemned by the practice of the whole civilised world.  The cession  of  a territory by its name from one  sovereign  to another; conveying the compound idea of surrendering at  the same  time the lands and the people who inhabit them,  would be necessarily understood to pass (1)42 I.A. 229 at 239. (2)51 I.A. 357 at 361. (3) 32 U.S, 51 at 86, 87, 55 426 the  sovereignty  only, and not to  interfere  with  private property."    This view was followed by Cardozo J. in 1937 in Shapleigh v. Mier (1).  He said :- "Sovereignty  was  thus transferred, but  private  ownership remained  the same  To find the the title to the land  today we  must  know where title stood while the land was  yet  in Mexico."   We gather from Hyde’s International Law, Volume I,  second edition, page 433, that the came principle was laid down  by the  Permanent Court of International Justice.  The  learned author  quotes  the Court as saying in  its  Sixth  Advisory Opinion of September 10, 1923, on certain questions relating to  settlers  of  German origin in the  territory  ceded  by Germany to Poland-    " Private rights acquired under existing law do not cease on  a change of sovereignty.  No one denies that the  German Civil  Law,  both substantive and adjective,  has  continued without   interruption  to  operate  in  the  territory   in question.   It can hardly be maintained that,  although  the law   survives,  private  rights  acquired  under  it   have perished.   Such a contention is based on no  principle  and would  be  contrary  to  an  almost  universal  opinion  and practice   It  suffices  for the  purposes  of  the  present opinion to say that even those who contest the existence  in international law of a general principle of State succession do  not  go  so  far as  to  maintain  that  private  rights including those acquired from the State as the owner of  the property are invalid as against a successor in sovereignty."    The  learned counsel for the petitioners relies  on  this class of case and derives this much support for it from  the Privy  Council in Mayor of Lyons v. East India  Company  (2) where Lord Brougham said: - -    "  It  is  agreed, on all hands, that  (when)  a  foreign settlement  (is)  obtained  in  an  inhabited  country,   by conquest,  or  by cession the law of the  country  continues until the Crown, or the Legislature, change it." (1) 299 U.S. 468 at 470.    (2) I M.I.A, 175 at 270, 271, 427 It   is  right  however  to  point  out  that  Hyde   places limitations on the doctrine at page 432 and that the learned authors of Corpus Juris: International Law, Volume 33,  page 415,  place  the limitation that in the absence  of  express understanding  a  conqueror assumes no  obligations  of  the conquered  state.  This distinction was also drawn  by  Lord Alverstone C.J. in West Rand Central Gold Mining Company  v. Rex  (1)  where, commenting on the American cases,  he  said that  there  is a difference between the private  rights  of individuals in private property and contractual rights which are  sought  to be enforced against the new  sovereign.   He



said :- "  It  must  not  be  forgotten  that  the  obligations   of conquering States with regard to private property of private individuals,  particularly  land as to which the  title  had already  been perfected before the conquest  or  annexation, are altogether different from the obligations which arise in respect of personal rights by contract.  As is said in  more cases  than  one,  cession of territory does  not  mean  the confiscation   of  the  property  of  individuals  in   that territory.   If  a  particular piece of  property  has  been conveyed  to a private owner or has been pledged, or a  lien has  been  created upon it, considerations arise  which  are different  from those which have to be considered  when  the question  is  whether  the  contractual  obligation  of  the conquered  State towards individuals is to be undertaken  by the conquering State."     Lord  Alverstone also pointed out that in  the  American cases,  on which the international jurists have based  their views,  the  treaties of cession as well as  the  subsequent legislation  of  the United States protected the  rights  of owners  of private property as they existed at the  time  of cession  and  so the only question for decision in  each  of those  cases  was  whether any private  rights  of  property actually existed at the relevant date.  Now that is also the English  law, for the Privy Council and the House  of  Lords have  also held that the new sovereign can choose  to  waive his  rights and recognise titles and rights as they  existed at the date of cession. (1)  [T905] 2 K.B. 391 at 411. 428 This  recognition can be given either by legislation  or  by proclamation  and it can even be inferred from the  mode  of dealing  with  the property after the cession:  Forester  v. Secretary  of State for India in Council ( )  (legislation); Secretary of State v. Bai Rajbai (2) (agreement, legislation and  mode of dealing); Mayor of Lyons v. East India  Company (3)  (waiver)  and  at  page  285  (relinquishment)  ;  also Vajesinghji   Joravarsinghji  v.  Secretary  of  State   for India(1) and Secretary of State v. Sardar Rustam Khan (5).       In  dealing with the views of  international  jurists, Lord  Halsbury insisted that they were only enunciations  of what in their opinion the law ought to be and had no binding force.  He said in the House of Lords in Cook v. Sorigg (6):     " It is no answer to say that by the ordinary principles of  international law private property is respected  by  the sovereign  which accepts the cession and assumes the  duties and  legal obligations of the former sovereign with  respect to  such private property within the ceded  territory.   All that  can  be properly meant by such a proposition  is  that according to the well-understood rules of international  law a  change  of  sovereignty by cession ought  not  to  affect private property, but no municipal tribunal has authority to enforce  such  an  obligation.  And if there  is  either  an express  or  a well-understood bargain  between  the  ceding potentate  and the Government to which the cession  is  made that  private  property shall be respected, that is  only  a bargain which can be enforced by sovereign against sovereign in the ordinary course of diplomatic pressure."     His view was endorsed by the Privy Council in  Secretary of State v. Sardar Rustam Khan(5) and again in the House  of Lords  in  Johnstone v. Pedlar(7).  Lord  Alverstone  C.  J. analysed in detail how far international law can be accepted and applied in municipal (1)  1872-73 I.A. Supplt.  Io at 17. (2)  42 I.A. 229 at 237.



(3)  I M.I.A. 175 at 281. (4)  51 I.A. 357 at 361. (5)681 I.A. 109 at 123. (6)  [1899] A.C. 572 at 578. (7)  [1921] 2 A.C. 262 at 281. 429 Courts  of justice in West Rand Central Gold Mining  Company v. Rex(1) and set out reasons for the above conclusion.     The  learned counsel for the petitioners also relies  on another  limitation which the English Courts have placed  on an  act  of State.  He says that even if the right  to  con- fiscate be conceded it must be taken to have been waived  if either the Crown or its officers purport to act under colour of  a  legal title and not arbitrarily.  He  contended  that arbitrariness  was of the essence in a’, act of  State.   He relied on Secretary of State in Council of India v. Kamachee Boye  Sehaba(2),Forester v. Secretary of State for India  in Council (3) and Johnstone v. Pedlar(4).  He pointed out that the  affidavit  of  the  respondent  shows  that  Government decided  to confirm all grants except those which were  mala fide.   Therefore, this was no arbitrary act  of  annexation but  an attempt to exercise what was thought to be  a  legal right.    We  do not intend to discuss any of this because, in  our opinion,  none  of these decisions has any  bearing  on  the problem  which  confronts  us, namely,  the  impact  of  the Constitution on the peoples and territories which joined the Indian  Union and brought the Constitution into being.   The flow  of  events  up to the date  of  final  accession,  1st January,  1950,  are  only of  historical  interest  in  the present   matter.   The  Rulers  of  Charkhari  and   Sarila retained,  at the moment of final cession, whatever  measure of  sovereignty they had when paramountly lapsed,  less  the portion given to the Indian Dominion by their Instruments of Accession in 1947; they lost none of it during the interlude when  they toyed with the experiment of integration.   There was then redistribution of some of its aspects but the whole of  whatever they possessed before the integration  returned to each when the United State of Vindhya Pradesh was brought to  an end and ceased to exist.  Thereafter each acceded  to the Dominion of India in his own right.    Now   it  is  undoubted  that  the  accessions  and   the acceptance of them by the Dominion of India were (1)[19O5] 2 K B 391 at 401-408. (3) 1872-73 I.A. Supplt.  10 at  17.  (2) 7 M.I.A. 476 at 53I. (4) [1921] 2 A.C.  262  at 281. 430 acts of State into whose competency no municipal Court could enquire; nor can any Court in India, after the Constitution, accept  jurisdiction  to settle any dispute arising  out  of them because of article 363 and the proviso to article  131; all  they can do is to register the fact of  accession;  see section 6 of the Government of India Act, 1935, relating  to the Accession of States.  But what then?  Whether the  Privy Council view is correct or that put forward by Chief Justice Marshall     its  broadest  outlines  is  more  proper,   all authoritiesd  re-agreed that it is within the competence  of the  new sovereign to accord recognition to existing  rights in the conquered or ceded territories and, by legislation or otherwise,  to  apply its own laws to them; and  these  laws can,  and indeed when the occasion arises must, be  examined and  interpreted  by the municipal Courts of  the  absorbing State.     Now  in the present case, what happened after the  final accession?   There was already in existence in 1949  section



290-A  of the Government of India Act, 1935, which  provided as follows:    "Administration  of  certain Acceding States as  a  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 State or the group of States were a Chief Commissioner’s Province.........     (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.    The  final  Instrument of Accession  complies  with  sub- section  (1)  above.  The necessary Order was made  and  the Chief Commissioner’s Province of Vindhya 431 Pradesh,  which  at  that  date  included  the  property  in dispute,  came into being on 23rd January. 1950.  Now it  is beyond  dispute  that  there  neither  can,  nor  could,  be confiscation  of property, as an act of State in  the  Chief Commissioner’s  Province of Delhi.  It is difficult  to  see how  there could be in an area which was being  administered by  the  Dominion  Government in all  respects  as  a  Chief Commissioner’s Province even if the person in possession was not,  at the time, a national of the country, an  assumption which is by no means indisputable; indeed that is the effect of  the decision of the Privy Council in Mayor of  Lyons  v. East  India Company(1).  There would appear to have  been  a clear  election by the sovereign authority expressed in  its own legislation to waive its rights of confiscation even  if they  were  there (a point we do not decide); and  the  same consequences  followed when the properties in  dispute  were incorporated  into  the  State of Uttar  Pradesh,  two  days later,  on  25th January, 1950.  The Privy Council  go  even further in Mayor of Lyons v. East India Company at page  285 and say that the waiver or relinquishment can be established from the treaty itself.     "......   it  cannot  be  denied  that  the  Crown   may relinquish its prerogative; indeed, whenever the inhabitants of  conquered  provinces are held to obtain  the  rights  of subjects by treaty, (and even Sir F. Norton has no doubt  of this  being possible) those who hold the doctrine  the  most vigorously   must  say  that  the  treaty  is  a   voluntary abandonment of a right of the Crown.  It evidences the  will of the sovereign to exempt the conquered territory from this branch  of  his  prerogative.   But the  same  will  of  the sovereign may be collected from other circumstances, and the like abandonment of the prerogative be thus evidenced."     But  however  that  may be, the fact  remains  that  the titles  of these petitioners to the disputed lands  had  not been  repudiated  tip to the 26th of January, 1950.   It  is immaterial  whether  or  not  the  right  of  the   Dominion Government  to  do so remained in  abeyance  till  exercised despite the agreement embodied in the (1)  I M. I.A. 175 at 274, 275 432 Instruments   of   Accession   and   the   legislation   and notification  quoted  above  because, in fact,  it  was  not exercised.      Now  what was the effect of the non-exercise  of  those



rights  ? Even on the English view, the, person in de  facto possession  is  not without rights in the land,  nor  is  he altogether  without  remedy.  It is just a question  of  the means of redress.  In Johnstone v. Pedlar(1) Lord  Atkinson, speaking in the House of Lords, said:-     "It  is on the authorities quite clear that  the  injury inflicted  upon  an  individual by the act  of  State  of  a sovereign authority does not by reason of the nature of  the act  by which the injury is inflicted cease to be  a  wrong. What these authorities do establish is that a remedy for the wrong  cannot be sought for in the Courts of  the  sovereign authority which inflicts the injury, and that the  aggrieved party must depend for redress upon the diplomatic action  of the State, of which he is a subject."    So  also in Forester v. Secretary of State for  India(9), the  Begum, whose estate Government sought to confiscate  as an  act of State, was only in de facto possession: see  page 16.   The  Privy  Council  held  that  the  Government   had purported  to  act  under colour of a legal  title,  so  its attempt   at  resumption  was  not  an  act  of  State   and consequently  could  be  reviewed  in  the  Courts.    Their Lordships  thereupon  proceeded to investigate  the  Begum’s title, not under the British Government, but as derived from the sovereign power which preceded it (page 18).  So also in Mayor  of  Lyons v. East India Company(3), the  title  of  a foreign alien to land was upheld, not under the English  law (because  if  that  had applied there  would  have  been  an escheat),  but  under  the law in India  derived  from  non- British sources, that is to say, under the laws of the  land before cession.  It was held that those laws continued until changed  and for that reason a title which would  have  been bad  under  the English law was upheld.  At page  274  their Lordships say:- (1) [1921] 2 A.C. 262 at 278.  (3)  M.I.A. 175 at 274, 275. (2)  1872-73 I.A. Supplt. 10. 433 "It  follows  from  what has been observed,  not  only  that Calcutta  was a district acquired in a country peopled,  and having a Government of its own, but that, for a long  course of  time  no such law as that  which  incapacitates  aliens, could  be  introduced,  any  more  than  it  could  now   be introduced  into  such part of the  Asiatic.  or  Portuguese territory..."    and at page 271 they had already said    "In  the former case, it is allowed, that the law of  the country  continues  until  the Crown,  or  the  Legislature, change it."     Lord  Atkinson’s view in Johnstone v. Pedlar(1) at  page 281 appears to point to the same conclusion.  He said: - "And  even  where the person aggrieved  was  an  independent rajah,  against WhOM the East India Company made  war,  -and having  made  him  prisoner, seized  his  property,  it  was apparently considered by Sir John Romilly M. R. in  Ex-Rajah of   Coorg  v.  East  India  Company(2)  that  the   company notwithstanding  that  this act was an act of  State’  could have  been  sued in respect of any property seized  by  them which  belonged to the rajah in his private capacity as  his personal property and not in his character of rajah." We think it is clear on a review of these authorities  ,that whichever  view be taken, that of the Privy Council and  the House  of  Lords, or that of Chief Justice  Marshall,  these petitioners, who were in de facto possession of the disputed lands, had rights in them which they could have enforced  up to  26th January, 1950, in the Dominion Courts  against  all persons except possibly the Rulers who granted the land  and



except  possibly the State.  We do not by ’any means  intend to  suggest that they could not have enforced  them  against the  Rulers  and  the Dominion of India  as  well,  but  for reasons  which  we  shall  presently  disclose  it  is   not necessary to enter into that particular controversy.  It  is enough  for  the  purposes of this case  to  hold  that  the petitioners had, at any rate, the rights defined above. (1)  [1921] 2 A. C. 262, (2) (1860) 29 Beav. 300, 56 434    Now  what  was  the extent of  the  petitioners’  rights? These  properties were not State properties in the sense  of public  buildings  and  so forth.   They  were  indisputably properties  over  which the Rulers bad  absolute  rights  of disposition  at  the  date of the grants.   The  grants  are absolute  in character and would under any civilised  system of,  law  pass  an absolute and indefeasible  title  to  the grantee.   Let it be conceded, as was argued (though  we  do not  so decide), that they were defensible at the mere  will of a sovereign who held absolute and despotic sway over  his subjects in all domestic concerns.  The fact remains that up till  that  time  they were neither resumed  by  the  former rulers nor confiscated by the Dominion of India as an act of State.   Therefore,  up to the 25th of  January,  1950,  the right and title of the petitioners to continue in possession was  good, at any rate, against all but the Rulers  and  the Dominion of India.    Now  what effect did the Constitution have on  that?   In our  opinion, the Constitution, by reason of  the  authority derived  from, and conferred by, the peoples of  this  land, blotted  out  in  one  magnificent  sweep  all  vestiges  of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State now seeks to uphold.  Let it be conceded (without admitting or deciding the point) that  the Dominion  of India once had the powers for which  the  Union Government  now contends.  The self-same  authorities  which appear  to  concede  that power also admit that  it  can  be waived  or relinquished.  What then was the attitude of  the Dominion  towards those States which it sought to draw  into the  Republic of India which was yet to be free,  sovereign, democratic,  as its Constitution later proclaimed it to  be? We quote from the mouthpiece of that Government as disclosed in  the White Paper on Indian States published  by  official authority.   Sardar  Vallabhbhai Patel’s statement  (he  was then in charge of the States Department) 5th July, 1947,  is reproduced at page 157.  He said at page 158:-    "This country with its institutions is the proud heritage of the people who inhabit it, It is an accident 435 that  some live in the States and some in British India  but all  alike partake of its culture and character.  Weare  all knit together by bonds of blood and feeling. no less than of self-interest’  None  can  segregate us  into  segments;  no impassable barriers can be set up between us. I suggest that it is therefore better for us to make laws sitting  together as  friends  than to make treaties as aliens.  I  invite  my friends,the  Rulers  of  States  and  their  people  to  the Councils   of  Constituent  Assembly  in  this   spirit   of friendliness and co-operation in a joint endeavour, inspired by  common allegiance to our motherland for the common  good of us all." This invitation was accepted on 19th May, 1949.  Page 109 of the White Paper says



  "As the States came closer to the Centre it became  clear that  the  idea of separate Constitutions being  framed  for different constituent units of the Indian Union was a legacy from  the  Rulers’  polity which could have no  place  in  a democratic  set-up.   The  matter  was,  therefore,  further discussed  by  the Ministry of States with the  Premiers  of Unions and States on May 19, 1949, and it was decided,  with their  concurrence,  that  the Constitution  of  the  States should  also be framed by the Constituent Assembly of  India and should form part of the Constitution of India."    It is impossible to think of those who -sat down together -in  the  Constituent  Assembly,  and  of  those  who   sent representatives there, as conqueror and conquered, as  those who ceded and as those who absorbed, as sovereigns or  their plenipotentiaries,  contracting alliances and entering  into treaties  as  high contracting parties to an act  of  State. They were not there as sovereign and subject as citizen  and alien,   but  as  the  sovereign  peoples  of  India,   free democratic equals, forging the pattern of a new life for the common weal.  Every vestige of sovereignty was abandoned  by the  Dominion of India and by the States and surrendered  to the peoples of the land who through their representatives in the  Constituent Assembly hammered out for themselves a  new Constitution  in  which  all were citizens in  a  new  order having but one 436 ie,  and  owing  but  one  allegiance:  devotion,   loyalty, idelity, to the Sovereign Democratic Republic that is India. At  one stroke all other territorial allegiances were  wiped out  and  the past was obliterated  except  where  expressly preserved; at one moment of time the new order was born with its  new allegiance springing from the same source for  all, grounded  on  the  same basis: the sovereign  will  of  the, peoples of India with no class, no caste, no race, no creed, no distinction, no reservation.    The   Preamble  to  the  Constitution  recites   in   its magnificient prelude-    "We,  The  People of India, having solemnly  resolved  to constitute India into a Sovereign Democratic Republic and to secure to all its citizens: Justice, Liberty, Equality, Fraternity; In our Constituent Assembly this 26th day of November  1949, do   hereby  Adopt,  Enact  and  Give  to   Ourselves   This Constitution."    Article  1(1)  sets out that India shall be  a  Union  of States  and  clauses (2) and (3) define the  territories  of which India shall be composed.  They include the territories in which the disputed lands are situate.  Article 5  defines Indian  citizens.   They include in their wide  embrace  the Rulers  of  Charkhari and Sarila who made  the  grants,  the petitioners  who received them and those who now seek as  an act of State to make the confiscation.  It is impossible for a  sovereign  to exercise an act of State  against  its  own subjects.   However disputable the proposition may be.  that an  act of State can be exercised against a citizen who  was once  an  alien  the  right  being  only  in  abeyance  till exercised, there has never been any doubt that it can  never be exercised against one who has always been a citizen  from the  beginning  in territory which has  from  its  inception belonged  to the State seeking to exercise the right.   This is so even on the English authorities which claim 437



far  higher  rights for the State than other  laws  seem  to allow.  Lord Atkinson said in Johnstone v. Pedlar(1) at page 281 :-     The  last  words  of Lord  Halsburv’s  judgment  clearly suggest that the Government of this country cannot assert as a defence against one of their own subjects that an act done to  the  latter’s injury was an act of State, since  such  a subject clearly could not rely on his own sovereign bringing diplomatic  pressure against himself to right the  subject’s wrong.   In conformity with this Principle it -was  held  in Walker  v. Baird (2), that where the plaintiffs are  British subjects in an action for trespass committed within  British territory in time of peace it is no answer that the trespass was  an act of State, and that thereby the  jurisdiction  of the municipal Courts was ousted."     And so Lord Phillimore said at page 295:-     "  Because between Her Majesty and one of  her  subjects there can be no such thing as an act of State."    Lord  Brougham  went further in Mayor of  Lyon8  v.  East India Company(3), and extended the principle to aliens who later became citizens.  He said at pages 284  and 285:- "  But  this position seems wholly untenable,  for  all  the authorities lay it down that upon a conquest the inhabitants ante  nati, as well as post nati, of the  conquered  country become denizens of the conqueror’s country; and to  maintain that  the  conquered  people  become  aliens  to  their  new sovereignty upon his accession to the   dominion over  them, seems  extremely absurd.........The Court below, it must  be observed, distinctly admit that conquest operates what  they term a virtual naturalization."    But however that may be, there is no question of conquest or cession here., The new Republic was born on 26th January, 1950,  and all derived their rights of citizenship from  the same  source and from the same moment of time; so  also,  at the  same  instant and for the same  reason,  all  territory within its boundaries (1) [19211 2 A.C. 262.      (3) 1 M.I.A. 175. (2)  [1892]A A.C. 491. 438 became  the territory of India.  There is, as it  were  from the  point  of view of the new State, Unity  of  Possession, Unity of Interest, Unity of Title and Unity of Time. This was also quite clearly the will of the Union Government as  expressed  in its White Paper, so even if the  case  was still   one   of  cession  there  is   clear   evidence   of relinquishment and waiver.  At page 115 it is said :-     "  With  the inauguration of the new  Constitution,  the merged  States  have  lost  all  vestiges  of  existence  as separate entities "; and at page 130:-      The  new Constitution of India gives expression to  the changed conception of Indian unity brought about by  the ’unionisation’ of states and at page 131    "  Unlike the scheme of 1935 the new Constitution is  not an  alliance  between democracies and dynasties but  a  real union  of  the  Indian people built on the  concept  of  the sovereignty of the people All the citizens of India, whether residing  in  States  or  Provinces,  will  enjoy  the  same fundamental  rights and the same legal remedies  to  enforce them.   In the matter of their  constitutional  relationship with  the  Centre and in their internal set-up,  the  States will  be on a par with the Provinces.  The new  Constitution therefore  finally eradicates all artificial barriers  which



separated  the  States from Provinces and achieves  for  the first time the objective of a strong, united and  democratic India built on the true foundations of a co-operative enter- prise  on the part of the peoples of the Provinces  and  the States alike."     But  we do not found on the will of the Government.   We are  no  longer concerned with principalities,  and  powers. "We  have upon us the whole armour of the  Constitution  and walk  from henceforth in its enlightened ways,  wearing  the breastplate  of its protecting provisions and  flashing  the flaming sword of its inspiration.                             439     It  was  not denied that if the present  action  of  the State  cannot  be defended as an act of State it  cannot  be saved  under any provision of law.  Whether the State  would have  the  right to set aside these grants in  the  ordinary Courts   of  the  land,  or  whether  it  can  deprive   the petitioners of these properties by legislative process, is a matter on which we express no opinion.  It is enough to  say that  its present action cannot be defended.  Article  31(1) of the Constitution is attracted as also article 19(f).  The petitioners are accordingly entitled to a writ under article 32(2).  A writ will accordingly issue restraining the  State of Uttar Pradesh from giving effect to the orders complained of and directing it to restore possession to the petitioners if possession has been taken,       The petitioners will be paid their costs by the  State of Uttar Pradesh.  The intervener will bear its own.                                Writ allowed.