State of Gujarat Vs. Vora Fiddali Badruddin Mithibarwala [1964] INSC 21 (30 January 1964)
30/01/1964 AYYANGAR, N. RAJAGOPALA AYYANGAR, N. RAJAGOPALA DAYAL, RAGHUBAR MUDHOLKAR, J.R.
SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K.
HIDAYATULLAH, M.
SHAH, J.C.
CITATION: 1964 AIR 1043 1964 SCR (6) 461
CITATOR INFO:
R 1964 SC1793 (15) RF 1964 SC1903 (17) R 1966 SC 442 (4) R 1966 SC 704 (10) R 1967 SC 40 (5) R 1971 SC 530 (129,322,364,365,370) F 1971 SC 744 (6) R 1971 SC 846 (7,8,9) D 1971 SC 910 (6) RF 1971 SC1594 (8) RF 1975 SC1518 (33) RF 1981 SC1946 (18) RF 1986 SC1272 (75,76) R 1987 SC 82 (7)
ACT:
Act of State-Ruler of a native state granted certain rights in forest to grantees-State merged with Dominion of IndiaDominion of India did not recognise the grant-Effect of nonrecognition before Constitution and after Constitution-If non-recognition of the grant amounts to an act of StateGovernment of India Act 1935-Constitution of India, Art. 32.
HEADNOTE:
The Ruler of the State of Sant had issued a Tharao dated 12th March 1948, granting full right and authority to the jagirdars over the forests in their respective villages.
Pursuant to the agreement dated March 19, 1948, the State of Sant merged with the Dominion of India. On October 1, 1948, Shree V. P. Menon, Secretary to the Government of India, wrote a letter to the Maharana of Sant State expressly declaring that no order passed or action taken by the Maharana before the day of April 1st 1948, would be questioned. After merger there was obstruction by the forest officers when the respondents were cutting the forests, but after some correspondence they were permitted to cut the trees on furnishing an undertaking that they would abide by the decision of the government. The Government of Bombay, after considering the implications of the Tharao, decided that the order was mala fide and cancelled it on 8th July 1949 In the meantime these respondents were stopped from working the forests by the Government of Bombay.
462 Thereupon these respondents filed suits for declaration of rights in the forests and for a permanent injunction against interference with those rights by the State. The respondents claimed in these suits that the rights of the grantees to the forests were not liable to be cancelled by the Dominion of India after the merger of the State of Sant in June, 1948, by executive action, and that the Government of Bombay was not competent to obstruct them in the exercise of those rights. Their claims were opposed by the State of Bombay mainly on the ground that in the absence of recognition, express or implied, by the successor State of the rights conferred by the former ruler on the jagirdars the respondents could not enforce them in the Municipal Courts. These respondents filed five suits against the State of Gujarat. All suits except one were dismissed by the Trial Court. The District Judge on appeal ordered the dismissal of that suit also and dismissed the appeals of the plaintiffs in the other suits. The plaintiffs then appealed to the High Court and the High Court allowed all appeals and the suits were decreed.' The High Court held on the basis of the letter written by Shri V. P. Menon, Secretary that the succeeding sovereign had waived or relinquished its right to repudiate the Tharao. The High Court further held that the Tharao was not a legislative action of the Ruler of Sant State. The State Government appealed to this Court by special leave. Hence the appeal.
Per majority:
Hidayatullah J. (i) The Act of State comes to an end only when the new sovereign recognises either expressly or impliedly the rights of the aliens. It does not come to an end by an action of subordinate officers who have no authority to bind the new sovereign. Till recognition, either express or implied, is granted by the new sovereign, the Act of the State continues. In the present case, the Act of State could only come to an end if Government recognised the rights flowing from Tharao. That Government never did. There was thus no recognition of the Tharao or the rights flowing from it at any time. In the present case, the subordinate officers of the Forest Department allowed each respondent to cut the trees on furnishing an undertaking that he would abide by the decision of the Government and so the question of waiver or relinquishment does not arise.
Secretary of State in Council for India v. Kamachee Boye Sahaba, (1859) 13 Moore P. C. 22, Secretary of State v. Sardar Rustom Khan and Others, (68) I. A. 109, MIS. Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income-tax, [1959] S.C.R. 729, The State of Saurashtra v. Memon Haji Ismale Haji, [1960] 1 S.C.R. 537, Jagan Nath Agarwala v. State of Orissa, [1962] 1 S.C.R. 205, State of Saurashtra V. Jamadar Mohamed Abdulla and Ors., [1961] 3 S.C.R. 970 and Vaje Singhji Jorwar Singh v. Secretary of State for India, (1924) L.R. 51 I.A. 357, relied on.
Virendra Singh and Ors. v. The State of Uttar Pradesh [1955] 1 S.C.R. 415, disapproved.
Bhola Nath v. State of Saurashtra, A.I.R. 1954 S.C. 680, Bhojrajji v. The State of Saurashtra, 61 Bom. L.R. 20, referred to.
463 (ii) The Act of State did not come to an end by virtue of Article 299(1) of Government of India Act, 1935 and so the respondents could not claim the protection of that section.
Section 299(1) did not come into play because it could only come into play after the rights were recognised. In the present case the rights were never recognised by the Government.
(iii) The original Act of State continued even after January 26, 1950, because there was no state succession on January 26, 1950 in so far as the people of Sant State were concerned. For them state succession was over some time in 1948. The Act of State which began in' 1948 could continue uninterrupted even beyond 1950 and it did not lapse or get replaced by another Act of State. These rights in question cannot be protected under the Constitution because these rights were not recognised even before 1950.
(iv) That the impugned Tharao was not a law as it did not lay down any rule of conduct. It was a grant made to the Jagirdars mentioned in the Tharao.. The fact that Maharana's Tharao was passed to benefit a larger number of persons en bloc does not make it any the more a law if it did not possess any of the indicia of a law. The Tharao did give rights to the grantees but did not lay down any rule of conduct. It is a grant and as a grant it was open to the new sovereign not to recognise it.
Madhorao Phalke v. The State of Madhya Bharat, [1961] 1 S.C.R. 957, distinguished.
Ameer-unnissa Begum and Ors. v. Mahboob Begum and Ors. A.I.R. 1955 S.C. 352. distinguished.
Maharaja Shri Umaid Mills Ltd. v. Union of India and Others.
A.I.R. 1963 S.C. 953 and The Bengal Nagpur Cotton Mill Ltd.
v. The Board of Revenue, Madhya Pradesh and Others, A.I.R.
1964 S.C. 888 relied on.
(v) The right claimed here is not even a concessionary right such as has received the support of the International writers. It is more of the nature of a gift by the Ruler at the expense of the State. It lacks bona fides which is one of the things to look for. There is no treaty involved and whatever guarantee there is, Art. 363 of the Constitution precludes the Municipal Courts from considering. This distinguishes the jurisdiction and power of the Supreme Court of the United States in which consideration of treaties is included. In the United States the Constitution declares a treaty to be the law of the land. In India the position is different. Article 253 enables legislation to be made to implement international treaties. This Court has accepted the principles laid down by the Courts in England in regard to the limits of the jurisdiction of Municipal Courts. The view of the Supreme Court of United States or the view taken in international law has not been accepted by this Court. Politically and 464 ethically there might have been some reason to accept and respect such concessions but neither is a reason for the Municipal Courts to intervene. The Rule that the Act of the State can be questioned in a Municipal Court has never been adopted and it has been considered that it is a matter for the political departments of the State. However desirable it may be that solemn guarantees should be respected, this Court should not impose its will upon the State, because this is outside its jurisdiction.
In this case, the present respondents who were not parties to the merger agreement or to the letter written by Mr. Menon which was made expressly a part of the Agreement cannot take advantage of cl. 7. If they were parties, Article 363 would bar such plea.
Maharaj Umeg Singh and Others v. The State of Bombay and Others. [1955] 2 S.C.R. 164, relied on.
U.S. v. Percheman, 32 U.S. 51 at 86, disapproved:
Shapleigh v. Miar, 299 U.S. 468, referred to.
Salaman v. Secretary of State for India, [1906] 1 K. B. 613, referred to.
Cook v. Sprigg. [1899] A.C. 572, referred to.
Foster v. Nielson. (1829) 2 Pet. 253, referred to.
Birma v. The State, A.I.R. 1951 Rajasthan 1 to 7, referred to.
Amodutijani v. Secretary Southern Nigeria, [1921] 2 A.C. 399, referred to.
Clark V. Allen, 331 U.S. 503. referred to.
West Rand Central Gold Minning Co. v. Regem, [1905] 2 K.B. 391, referred to.
Secretary of State v. Bai Raj Bai, (1915) L.R. 42 I.A. 229, relied on.
Per Shah J. (1) The rule that cession of territory by one State to another is an act of State and the subjects of the former State may enforce only those rights in Municipal Courts which the new sovereign recognises has been accepted by this Court.
M/s. Dalmia Dadri Cement Co., Ltd. V. Commissioner of incomeTax, [1959] S.C.R. 729, jagannath Agarwala v. State of Orissa, [1962] 1 S.C.R. 205, Promod Chandra Dev v. State of Orissa, [1962] Suppl. 1 S.C.R. 405 and the State of Saurashtra v. Jamadar mohd. Abdullah, [1962] 3 S.C.R. 970, relied on.
The Secretary of State In Council of India v. Kamachee Boye Sahaba, 7 Moore's I.A. 476, Vajesinghji Joravarsinghji v. Secretary of State for India in Council, L.R. 51 I.A. 357 and Secretary of State v. Sardar Rustam Khan and Others, L.R. 68 I.A. 109, relied on.
465 (ii) The Constitutional provisions in the United States are somewhat different. Under the Constitution of the United States each treaty becomes a part of the law of the land;
the provisions thereof are justiciable and the covenants enforceable by the Courts. In India the treaties have not the force of law and do not give rise to rights or obligations enforceable by the Municipal Courts.
In the present case by virtue of Art. 363 of the Constitution, it is not open to the respondents to enforce the covenants of the agreement as stated in the letter of guarantee written by Mr. V. P. Menon in the Municipal Courts.
United States v. Parcheman, [1833] 32 U.S. 51 at 86, 87, not relied on.
Cook v. Sprigg. [1899] A.C. 572, referred to.
Maharaj Umeg Singh and Others v. The State of Bombay and Others, [1955] 2 S.C.R. 164, relied on.
(iii) An act of State may be spread over a period and does not arise merely an the point of acquisition of sovereign right. Nor is the new sovereign required to announce his decision when he assumes or accepts sovereignty over foreign territory, about the rights created by the quondam sovereign, on pain of being held bound by the right so created. There. fore till the right to property of the subjects of the former Indian State was recognized by the new sovereign there was no title capable of being enforced in the courts of the Dominion or the Union.
(iv) The functions of a State whether it contains a democratic set up or is administered by an autocratic sovereign fall into three broad categories--executive, legislative and judicial. The line of demarcation of these functions in an absolute or autocratic form of government may be thin and may in certain cases not easily discernible.
But on that account it is not possible to infer that every act of an autocratic sovereign has a legislative content or that every direction made by him must be regarded as law.
The legislative power is the power to make, alter, amend or repeal laws and within certain definite limits to delegate that power. Therefore It is power to lay down a binding rule of conduct. Executive power is the power to execute and enforce the laws, and judicial power is the power to ascertain, construe. and determine the rights and obligations of the parties before a tribunal. In the present case the order dated March 12, 1948, is expressly in the form of a grant of the rights which were not previously granted and does not either expressly or by implication seek to lay down any binding rule of conduct. The impugned order was not a law or an order made under any law within the meaning of cl. 4 of the Administration of the Indian States Order of 1948.
Promod Chandra Deb and Others v. The State of Orisa and Others, (1962] Suppl. 1 S.C.R. 405, Ameer-un-Nissa Begum and Others v. Mahboob Begwn and Others, A.I.R. (1955) S.C. 352, Director of Endow134-159 S.C.-30.
466 ments, Government of Hyderabad v. Akram Ali, A.I.R. (1956) S.C. 60, Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan and Others, A.I.R. (1963) S.C. 1638, distinguished, discussed.
Madhorao Phalke v. The State of Madhya Bharat, [1961] 1 S.C R 957 discussed.
Maharaja Shree Umaid Mills Ltd. v. Union of India, A.I.R. 1963 S.C. 953, relied on.
The Bengal Nagpur Cotton Mills Ltd. v. The Board of Revenue, Madhya Pradesh and Others, C.A. No. 416 of 1961 decided on July 30, 1963, relied on.
(v) To attract s. 299(1) of the Government of India Act, 1935, there must, exist a right to property which is sought to be protected. The subjects of the acceding State are entitled only to such rights as the new sovereign chooses to recognize, in the absence of the any recognition of the rights of the respondents or their predecessor Jagirdars, there was no right to property of which protection could be claimed. On the Sam* reasoning, grantees of the Ruler could not claim protection under Art 31(1) of the Constitution.
Per Mudholkar J. (i) The rule of international law on which the several Privy Council decisions as to the effect of conquest or cession on the private rights of the inhabitants of the conquered or coded territory are founded has become a part of the common law of this country. This being a "law in force" and at the commencement of the Constitution is saved by Art. 372 of the Constitution. The Courts in India are, therefore, bound to en. force that rule and not what according to Marshall C.J. is the rule at. International Law governing the same matter, though the latter has also, received the approval of several text book writers. The rule which has. been applied in this country is not inequitor nor can it be regarded to be an anachronism.
Virendra Singh v. The State of Uttar Pradesh, [1955] S.C.R. 415 United State v. Percheman, (1833) 32 U.S. 51.
disapproved.
Secretary of State for India v. Kamachee Boye Sahiba, (1859) is Moore P. C. 22, Asrar Ahmed v. Durgah Committee, Ajmer, A.I.R. 1947 P.C. 1, Dalmia Dadri Cement Co. Ltd. v. The Commissioner of Incometax, [1959] S.C.R. 729, State of Saurashtra v. Memon Haji Ismail [1960] 1 S.C.R. 537, State of Saurashtra v. Jamadar Mohamed Abdullah and Ors., (1962] 3 S.C.R. 970, Vajesinghji v. Secretary of State for India,, 51 I.A. 357 and Secretary of State for India v. Bai Rajbai, 42 I.A. 229 Promod Chandra Dev v. State of Orissa and Ors.
[1962] Supp. 1 S.C.R. 405, relied on (ii) Two concepts underlie our law. One is that the inhabitants of acquired territories bring with them no rights enforceable against the new sovereign. The other is that the Municipal Courts have no jurisdiction to enforce any rights claimed by them, against the sovereign despite the provisions of a treaty unless their rights have been recognised by the 467 new sovereign after cession or conquest. In other words a right which cannot on its own strength be enforced against a sovereign in the Courts of that sovereign must be deemed to have ceased to exist. It follows therefore that a right which has ceased to exist does not, require repudiation.
Municipal courts derive their jurisdiction from the Municipal law and not from the laws of nations and a change in the laws of nations brought about by the consent of the nations of the world cannot confer upon a Municipal Court a jurisdiction which it does not enjoy under the Municipal law.
(iii) The grantees of the Ruler could not claim the protection of s 299 of Government of India Act, 1935 or of Art. 31 of the Constitution of India as they possessed no right to property enforceable against the new sovereign.
(iv) The impugned Tharao was not law.
Madhorao Phalke v. The State of Madhya Pradesh [1961] 1 S.C.R. 957, referred to.
Per minority Sinha C.J. and Ayyangar J. (i) The juristic basis of the theory underlying the Privy Council decisions is that with the extinction of the previous sovereign the rights theretofore exerciseable by the subjects of that sovereign by virtue of grants for that sovereign were likewise extinguished and that without recognition which is really tantamount to a fresh grant by the new sovereign, no title enforceable in the municipal courts of the succeeding sovereign came into being. The doctrine of Act of State evolved by English courts is one purely of municipal law.
It denies to such a court jurisdiction to enquire into the consequences of acts which are inseparable from an extension of its sovereignty. That doctrine was, however. not intended to deny any rule of International Law.
The British practice that has prevailed in this country has not proved in actual practice to lead to injustice, but has proceeded on a just balance between the acquired rights of the Private individual and the economic interests of the community, and therefore there is nothing in it so out of tune with notions of propriety or justice to call for its rejection. Even in the case of Virendra Singh this Court did not express any decisive opinion in favour of accepting the observations in Percheman's case as proper to be applied by the municipal courts in India. This Court has in subsequent decisions followed the Privy Council decisions.
The view of the Supreme Court of the United States has not been accepted by this Court for the reason that the Constitutional position in regard to the recognition of treaties in both countries are different. In the United States a treaty has the force of law, which is not the position here. Besides, in India by virtue of Article 363 of the Constitution, Municipal Courts are deprived of jurisdiction to enforce any rights arising from treaties.
468 Vinrendra Singh v. The State of Uttar Pradesh, [1955] 1 S.C.R. 415, disapproved.
Vajesinghji v. Secretary of State for India, 51 I.A. 357, Cook v. Sprigg, [1899] A.C. 572, relied on.
walker v. Baird, [1892] A.C. 491, Johnstone v. Pedlar, [1921] 2 A.C. 262, referred to. United States v. Percheman, 32 U.S. 51, disapproved.
M/s, Dalmia Dadri Cement Co. Ltd. v. The Commissioner of Incometax, [1959] S.C.R. 729, Jagan Nath Agarwala v. The State of Orissa, [1962] 1 S.C.R. 205, Promodh Chandra Dev v.
The State of Orissa, [1962] 1 Supp. S.C.R. 405, The State of Saurarhtra v. Jamadar Mohamad Abdulla, [1962] 3 S.C.R.
970, Secretary of State for India v. Kanzachee Boye Sahiba [1859] 7 Moore, I.A. 476, Secretary of State for India in Council v. Bai Rai Bat, 42 I.A. 229 and Secretary of State v. Rustom Khan, 68 IA. 109. relied on.
Amodu Tijani v. Secretary Southern Nigeria, [1921] 2 A.C.
399, referred to.
West Rand Central Gold Mining Co., v. Rex, [1905] 2 K.B.
391. referred to.
Asrar Ahmed v. Durgha Committee, Ajmer, A.I.R. 1947 P.C. 1, relied on Attorney-General of Canada v. Attorney-General of Ontario, [1937] A.C. 326, referred to.
(ii) Where the new sovereign assumes jurisdiction and it does some act and there is ambiguity as to whether the same amounts to a recognition of a pre-existing right or not, the covenant and the treaty right be looked at in order to ascertain the intention and purpose of that equivocal act, but beyond This the covenant and the treaty cannot by themselves be used either as a recognition pure and simple or, as waiver of a right to repudiate the pre-excisting rights.
It is needless to point out that since the enforceability of the rights against the succeeding sovereign springs into existence only on recognition by the sovereign, there La no, question of a waiver or the right to repudiate.
In the present case the High Court erred in holding on the basis of cl. 7 of the letter of Shri V. P. Menon that the Government waived their right to repudiate the grant made by the previous ruler.
Bhola Nath v. The State of Saurashtra, A.I.R. (1954) S.C.
680. distinguished 469 (iii) Just previous to the Constitution the grantee had no right of property enforceable against the State. The coming into force of the Constitution could not, therefore, make any difference, for the Constitution, did,not create rights in property but only protected rights which otherwise existed.
(iv) In the present case the "Tharao" was not a grant to any individual but to the holders of 5 specified tenures in the State. The 'Tharao' is more consistent with its being a law effecting an alteration in the tenures of the 5 classes of Jagirdars by expanding the range of the beneficial enjoyment to the forests lying within the boundaries of the villages which had already been granted to them. In this light, the 'Tharao' would not 'be administrative order in any sense but would partake of the character of legislation by which an alteration was effected in the scope and content of tenures referred to. The "Tharao" dated March 12, 1918 satisfies the requirement of "a law" within Art. 366(10) of the Constitution and in consequence, the executive orders of the Government of Bombay by which the forests right% of the plaintiffs were sought to be denied were illegal and void.
The "Tharao" was in truth and substance a law which was continued by Art. 372 of !he Constitution and therefore it could be revoked by the appellant by legislative authority and not by an executive act.
Madhorao Phalke v. The State Madhya Bharat [1961] 1 S.C.R 957, Ameer-un-nissa Begum v. Mahboob Begum, A.I.R. 1955 Sup 4 Court, 352 and Director of Endowments, Government of Hyderabad Akram Ali, A.I.R. 1956 S.C. 60, relied on.
Per Subha Rao J. (i) The decision in Virendra Singh's case is not only correct, but. is also in accord with the progressive trend of modern international law. It may, therefore, be stated without contradiction that in none of the decisions of this Court that were given subsequent to Vires. dra Singh's ease the correctness of that decision was doubted. After all, an act of State is an arbitrary act not based on law, but on the modern version of 'Might is right'.
It is an act outside the law. There were two different lines of approach. One adopted by the imperialistic nations and the other by others who were not. That divergence was reflected in English and American Courts. All the jurists of International law recognise the continuity of title to immovable property of the erstwhile citizens of the ceding state after the sovereignty changed over to the absorbing state. It may, therefore, be held that so far as title to immovable property is concerned the doctrine of International law has become crystallized and thereunder the change of sovereignty does not affect the title of the erstwhile citizens of the ceding state to their property.
In America the said principle of International Law has been accepted without any qualification.
M/S. Dalmia Dadri Cement Co. Ltd. V. The Commissioner of Income-tax, [1959] S.C.R. 729, Jagannath Agarwala v. The State of Orissa, [1962] 1 S.C.R. 205, Promodh Chandra Dev.
v. The State of Orrissa 470 [1962] Supp. 1 S.C.R. 405, State of Saurashtra v. Jamadar Mohmed Abdulla, [1962] 3 S.C.R. 970, discussed and distinguished.
United States v. Percheman, (1833) 32 U.S. 51, relied on.
Foster v. Neilson, (1829) 2 P.E.T., 253, The American Insurance Co. and the Ocean Insurance Co. v. Bales of Cotton (1828) 7 L.Ed. 511, Charles Dehault v. United States, (1835) 9 Ed. 117, Vajeenngli Joravarsingji v. Secretary of State for India in Council, (1951) I.A. 357, referred to.
(ii) The law in England is that the municipal courts cannot enforce the acquired rights of the erstwhile citizens of the ceding state against the absorbing state unless the said state has recognized or acknowledged their title. This Court accepted the English doctrine of Act of State in a series of decisions.
The word "recognize" means "to admit, to acknowledge, something existing before". By recognition the absorbing state does not create or confer a new title, but only confirms a pre-existing one. Non-recognition by the absorbing does not divest the title, but only makes it unenforceable against the state in municipal courts.
Pramod Chandra Dev. v. The State of Orissa, [1962] Supp. 1 S.C.R. 503, relied on.
(iii) The doctrine of acquired rights, at any rate in regard to immovable property has become crystallized in International Law. Under the said law the title of a citizen of a ceding state is preserved and not lost by cession. The change of sovereignty does not affect his title. The municipal laws of different countries vary in the matter of its enforceability against the state. As the title exists, it must be held that even in those countries, which accepted the doctrine of act of State and the right of a sovereign to repudiate the title, the title is good against all except the State. Before the Constitution came into force the State did Dot repudiate the title. When the Constitution of India came into force the respondent and persons similarly situated who had title to immovable property in the Sant State had a title to the said property and were in actual possession thereof. They had title to the property except against the State and they had, at any rate, possessory title therein. The Constitution in Article 31(1) declares that no person shall be deprived of his property save by authority of law. That is, the Constitution recognised the title of the citizens of erstwhile State of Sant, and issued an injunction against the sovereign created by it not to interfere with that right except in accordance with law. A recognition by the Supreme Law of the land must be in a higher position than that of an executive authority of a conquering State. It was held that the title to immovable property of the respondent was recognised by the Constitution itself and, therefore, necessarily by the sovereign which Is bound by it.
471 In the present case the letter written by the Government of India dated 'October 1, 1948, clearly recognized the title of the respondents to their properties. The letter clearly contains a statement in paragraphs 5 and 7 thereof that enjoyment of Jagirs, grants etc., existing on April 1, 1948, were guaranteed and that any order passed or action taken by the Ruler before the said date would not be questioned.
This is a clear recognition of the property rights of the respondent and similar others.
Virendra Singh v. The State of Uttar Pradesh, [1955] 1 S.C.R. 415, relied on.
M/S. Dalmia Dadri Cement Co. Ltd. v. The Commissioner of Incometax [1959], S.C.R. 729, Jagan Nath Agarwala v. The State of Orissa [1962], 1 S.C.R. 205, Promodh Chandra Dev v. The State of Orissa' [1962], Supp. 1 S.C.R. 405 and State of Saurashtra v. Jamadar Mohamed Abdullah [1962], 3 S.C.R. 970, discussed and distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 182-186 of 1963.
Appeals by special leave from the judgment and order dated January 1961 of the Gujarat High Court in Second Appeals Nos. 105, 106, 107, 112 and 193 of 1960.
C. K. Daphtary, Attorney-General, R. Ganapathy Iyer, R. K. P. Shankardass and R. H. Dhebar, for the appellant (in all the appeals).
Purshottam Trikamdas, B. Parthasarathy, J. B. Dadachanji O. C. Mathur and Ravinder Narain, for the resdondents (in all the appeals).
January 30, 1964. Hidayatullah J., Shah J., and Mudholkar J. delivered separate Judgments allowing the appeal.
Raghubar Dayal J. agreed with the order proposed by Hidayatullah J. The dissenting opinion of Sinha C.J. and Rajagopala Ayyangar J. was delivered by Ayyangar J. Subba Rao J. delivered a separate dissenting opinion.
AYYANGAR J.-In this batch of five analogous appeals, by special leave, the main question for determination is whether the rights which were in controversy between the 472 parties in the courts below could be enforced by the Municipal courts; or in other words, whether or not "Act of State" pleaded by the State of Gujarat is an effective answer to the claims made by the respective respondents to the rights over forests claimed by them in the suits giving rise to these appeals.
Vora Fiddali Badruddin Mithibarwala is the respondent in Civil Appeals Nos. 182 and 184 of 1963. Vora Hakimuddin Tayabali Amthaniwala is the respondent in Civil Appeal No.
183 of 1963. Mehta Kantilal Chandulal is the respondent in Civil Appeal No. 185 of 1963, and Pathan Abbaskhan Ahmedkhan is the respondent in Civil Appeal No. 186 of 1963. In all these Appeals the State of Gujarat is the appellant.
The course these litigations have taken in the courts below may briefly be stated as follows: The respondent in Civil Appeal No. 182 of 1963, is the assignee of the rights of one Vora Hatimbhai Badruddin and was brought on a record as plaintiff during the pendency of the suit in the trial court, namely, the court of the Civil Judge (Senior Division) at Godhra, being Civil Suit No. 115 of 1950, for an injunction and ancillary reliefs to restrain the appellant and its officers from interfering with the plaintiffs alleged rights to cut and carry away timber etc., from the Gotimada jungle, rasing his rights under a contract dated August 21, 1948, for a period of three years on payment of a consideration of Rs. 9,501 to the Jagirdar of the village, Thakore Sardar Singh Gajesingh. Civil Suit No. 134 of 1950, giving rise to Civil Appeal No. 184 of 1963, was also instituted by the same plaintiff who claimed by virtue of an assignment of the rights under a similar contract in respect of another forest in village Nanirath for a period of four years, the consideration being the cash payment of Rs. 9,501. Civil Suit No. 106 of 1951, giving rise to Civil Appeal No. 183 of 1963. was instituted by Vora Hakimuddin Tayyabali Amthaniwalla. His claim was based on an agreement with the Jagirdar. dated December 7, 1948, for a period of four years for a consideration of Rs. 6,501 in respect of the forest in village Rathda. All these three suits, in which the reliefs claimed 473 were similar, were tried together and disposed of by a common judgment, delivered by the trial court on January 3, 1956. All the suits were dismissed. The Court took the view that the rights of the plaintiffs, such as they were, could not be enforced by the courts. Civil Appeal No. 185 of 1963 arises out of Suit No. 80 of 1953, filed by Mehta Kantilal Chandulal. He owned the Inami villages Lalekapur and Narsingpur and alleged that he had given a contract for cutting the trees in his villages for a consideration of Rs. 11,000 on May 29, 1948, for a period of four years, and that his transferee had been prevented by the State from exercising those rights. He also prayed for a similar injunction, as in the other suits. This suit was also dismissed by the trial court by its judgment, dated March 23, 1956. The last of the suits is Suit No. 90 of 1955, giving rise to Civil Appeal 186 of 1963. The plaintiff had claimed to have obtained similar right of felling trees in the forest belonging to the Jagirdar of Mayalapad on August 16, 1948 for Rs. 1,191 for a period of three years. This suit was decreed by a judgment dated August 6, 1956. The unsuccessful plaintiffs filed four appeals to the District Judge, Panch Mahals, at Godra, being appeals Nos. 17, 18, 19 and 48 of 1956. All the appeals were heard together and, by a common judgment, were dismissed on February 28, 1957, the judgment of the trial court being confirmed. The 5th appeal, being appeal No. 74 of 1956, was filed by the State.
Ile appeal was allowed by a separate judgment, dated September 30, 1957, dismissing the suit. The plaintiffsrespondents filed five second appeals, being Second Appeals Nos. 105, 106, 107, 112 and 193 of 1960 in the High Court of Gujarat. The appeals were heard together and were allowed on January 24, 1961 with the result that the suits were decreed and the appellant was restrained by an injunction from interfering with the plaintiffs' enjoyment of the rights in the forests, as claimed by them. As the State failed to obtain the necessary certificate of fitness from the High Court, it moved this Court and obtained special leave to appeal. And that is how these appeals have come up to this Court. These appeals were first heard by a Bench of five Judges, and it was directed that the matter be placed for hearing by a larger Bench, as the Bench was of the opinion that the decision of this Court in Virendra Singh v. The 474 State of Uttar Pradesh(1) required reconsideration. That is how these appeals have been placed before this special Bench.
Before dealing with the questions that arise for determination in these appeals, it is necessary and convenient at this stage to set out the course of events leading up to the institution of the suits aforesaid, giving rise to these appeals. The several villages, the forest rights in which are in dispute in these cases, formed part of the State of Sant. The steps in the transition of this State under its ruler who was designated the Maharana into an integral part of the territory of the Union of India conformed to the usual pattern. With the lapse of the paramountcy of the British Government on the enactment of the Indian Independence Act, the ruler achieved complete sovereignty.
Soon thereafter by an instrument of accession executed by the ruler, the State acceded to the Dominion of India so as to vest in the latter power in relation to 3 subjectsDefence, External Affairs and Communications. On March 19, 1948 the ruler entered into a merger agreement with the Governor-General of India by which "with a view to integrate the territory with the Province of Bombay at as early a date as possible", the full and exclusive authority and powers in relation to the administration of the State were ceded to the, Dominion Government. The agreement was to take effect from June 10, 1948. It is necessary to set out two of the Articles of this Agreement. Article 1 ran thus:
"1. The Maharana of Sant hereby cedes to the Dominion Government full exclusive authority, jurisdiction and powers for and in relation to the governance of the State and agrees to transfer the administration of the State to the Dominion Government on the 10th day of June, 1948 (hereinafter referred to as "the said day").
And from the said day the Dominion Government will be competent to exercise the said powers, (1) [1955] 1 S.C.R. 415.
475 authority and jurisdiction in such manner and through such agency as it may think fit." Under Article 3 of the agreement, the ruler agreed to furnish to the Dominion Government before October 1, 1948 a list of all his private properties over which he was, under the terms of the agreement, to retain full ownership and enjoyment.
After this agreement came in force on June 10, 1948, the Central Government delegated its functions to the Bombay Government by virtue of the powers vested in it by the Extra-Provincial Jurisdiction Act, 1947. Subsequently, Shri V. P. Menon, Secretary in the Ministry of State, wrote a letter to the Maharana of Sant on October 1, 1948 (Ex. 194).
This letter was entitled a "Letter of Guarantee" and was to be treated as supplementary to the Agreement of Merger dated March 19, 1948. Amongst other matters. it provided by cl. "No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned unless the order was passed or action taken after the 1st day of April, 1948, and it is considered by the Government of India to be palpably unjust or unreasonable. The decision of the Government of India in their respect will be final." In view of the forthcoming integration of (,lie territory of Indian States into the Dominion of India, the Government of India Act, 1935, was amended and s. 290-A was inserted. In exercise of the powers conferred by that section, the Governor-General of India promulgated the States Merger (Governor Provinces) Order, 1949, on July 27 1949 which came into force on August 1, 1949. As a result of that order the integration of Indian States, including the Sant State with that of the province of Bombay, was completed with effect from that date, namely August 1, 1949.
In the meantime, the ruler of the Sant State passed or issued "a resolution" or Tharao on March 12, 1948, which has given rise to the present series of litigations. Under this "'instrument" marked as Ex. 192, to use a neutral expression in view of the controversy as to its nature, called Tharao, an order was passed by the Maharana of Sant State whose terms will be referred to later and discussed in greater detail, granting forest rights to holders of certain specified tenures. The holders of such tenures in the Sant State entered into a number of agreements with the, parties, parting with their rights in the forest timber, e.tc., for a specified period, in consideration of cash payments made by those third parties to the holders of the tenures. It is not necessary to set out in detail all those agreements it is enough to mention, by way of a sample the agreement dated August 21, 1948 (Ex. 175) whereby the tenure-holder granted as briefly adverted to earlier to Vohra Hatimbhai Badruddin Mithiborwala the right to cut and remove timber and firewood from the forest of Mouja Gothimada for a consideration of Rs. 9,501 for a period of three years. The written agreement contains quite a number of clauses which it is not necessary to set out for the purposes of this case. After the aforesaid grants, correspondence started between the grantors and the grantees on the one hand, and the State Forest Department on the other. When the District Forest Officer was informed about the transactions aforesaid. and the grantees applied for authorisation to remove timber etc.. the Forest Authorities ordered that no export outside would be permitted, pending receipt of orders from Government. They also required an undertaking from the purchaser that he would abide by the decision and orders passed by the Government. Thereupon the grantor, Thakur Sardar Singh Gaje Singh gave an undertaking to abide by the decision and orders of the Government of Bombay in respect of the Gothimada forests "rights over which were conferred on me. by Santrampur State Government on March 12, 1948 in their resolution No. G. 371, dated March 12, 1948." The Divisional Forest Officer, by his order dated January 10, 1949, passed an order under the provisions of r. 4 of the Rules under s. 41 of the Indian Forest Act authorising the grantee to remove forest produce like timber firewood and charcoal from Gothimada forest.
This was followed by a memorandum by the Conservator of Forests North Western Circle of the Bombay State by which the Divisional Forest Officers were directed to continue to issue authorisations to contractors of Jagirdars who had obtained rights over the forests in the Sant State under the Tharao of the ruler, dated March 12, 1948. He, however, pointed out that until the question of the rights of the grantees over private forests was finally settled by the Government an undertaking should be taken from the, persons concerned that they would abide by the orders passed by the Government in respect of their rights. This, as stated already had been obtained by the District Officers even earlier. On July 8, 1949, the Government of Bombay passed an order in which they stated "Government considers that the order passed by the ruler of the Sant State under his No.
371, dated March 12, 1948, transferring forest rights to all the Jagirdars of the Jagir villages, are mala fide and that they should be cancelled........ This decision or order was, however, not communicated to the jagirdars or their contractors though effect was given to it by the Forest Authorities by stopping all further fellings. Some time thereafter the respondents issued notices under s. 80 of the Civil Procedure Code to the Government of Bombay seeking respect for their rights under the Tharao of March, 1948 and after waiting for two months filed the suits out of which these appeals arise. By the written statements which they filed, the Government of Bombay raised principally the defence that the act of the ruler in passing the Tharao was not binding on them as the successor State and that they in exercise of their sovereign authority, had cancelled the concession as unreasonable and mala fide by their order, dated July 8, 1949, already referred. It might be mentioned that after the suit was instituted and while it was pending before the trial judge a formal resolution of the Government of Bombay was passed and published on the 6th of February, 1953, in which they set out the legal position that the rights acquired under the Tharao were not enforceable as against the Bombay Government as the successor State unless those rights were recognised and that as on the other hand the same had been specifically repudiated, the Jagirdars and their contractors had no title which they could enforce against the Government.
We have already narrated the course of the litigations and this would be the convenient stage at which to indicate 478 the grounds on which the learned Judges of the High Court have upheld the claims of the plaintiffs who are the respondents in the several appeals before us. There were two, principle points that were urged on their behalf before the learned Judges. The first was that the Tharao of March 12, 1948, was in truth and substance a 'law', a legislative act of the ruler of Sant, which was continued under Art. 372 of the Constitution and that in consequence the rights obtained by the grantees thereunder could not be abrogated or set at naught by a mere executive order which the Government resolution of February, 1953, undoubtedly was.
This submission was rejected by the Court holding that the Tharao was merely a grant originating in an administrative or executive order of the ruler. The other contention was that through the agreement of merger by which the integration of the Sant State with the Dominion of India brought about an "act of state" and that accordingly, no rights based on the agreement of merger, dated March 19, 1948, or in the supplementary letter, dated October 1, 1948, could be, asserted or enforced in the Municipal Courts of the successor State unless the same were recognised by Government still cl. 7 of the letter of Shri V. P. Menon, dated October 1, 1948, to the ruler could be referred to and relied on for the purpose of drawing an inference that the right of the Government to repudiate the grant by the ruler had been waived. This submission was accepted and it was on this reasoning that the learned Judges have decreed the suits of the several plaintiffs.
It is the correctness of these two conclusions that are being challenged before us, the first by the respondente and the other by the appellant State. Arising from the submissions of the learned Attorney-General the points that require examination are as to the legal effect of the accession, integration and merger of the Sant State in the Indian Union, on the rights that the plaintiffs acquired under the Tharao, dated March 12, 1948 and secondly whether the provisions in s. 299 of the Government of India Act, 1935, or those contained in Part III of the Constitution affect the nature or enforceability of those rights. 'Me questions to be considered under the first head in particular are:(a) Whether the rights acquired under the previous 479 ruler are enforceable against the Governments of the Union and the States without those rights being recognised by the appropriate Government.
(b) What is the effect of the letter of the Government of India, dated October 1, 1948, on the right of the Government to refuse to recognise a grant under the Tharao.
(c) What is the effect of the Government's communication to the Chief Conservator of Forests dated July 8, 1949 and of the resolution of Government of February, 1953.
Under the second head, besides the constitutional guarantees protecting rights to property contained in the Government of India Act and the Constitution, the effect in the first instance of s. 5 of the Government of India Act, 1935, of the acceding States becoming part of the Dominion of India and later of the manner in which the Constitution of India was framed.
The other question that requires consideration is whether the Tharao dated March 12, 1948 is merely a grant originating in an executive order or is it a law which is continued in operation by Art. 372 of the Constitution.
In Virendra Singh's case(1) this Court held that even on the basis that the merger of the Indian States in the Indian Union and the treaties by which that was accomplished were acts of State, still by reason of the manner in which the Constitution of India was brought into being and because of the provisions which it contained, in particular those guaranteeing property rights of its citizens, the acquired rights of the inhabitants of the Indian States quoad their rulers could not, after the Constitution, be annulled or abrogated by arbitrary executive action on the part of the, Union or State Governments. The learned Judges thus assumed as correct the rule of Public International Law relevant to that context expounded by the Privy Council in a number of decisions rendered on appeals from the Indian (1) [1955] 1 S.C R. 41 480 High Courts. For this reason we consider that it would be convenient for a proper appreciation of the points now in controversy to premise the discussion by briefly setting out the principles underlying these decisions of the Privy Council, reserving their detailed examination to a later stage.
These principles have been tersely summarised and the ratio of the rule explained by Lord Dunedin in Vajesinghji v. Secretary of State for India etc.(1) in a passage which has been often quoted in later cases on the subject and we consider that it would be sufficient if we extract it. The learned Lord said:
"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, recognized. 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 could 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." (italics ours).
This has been accepted as expressing the constitutional law of the United Kingdom and the same has been.applied tot merely to claims or titles which were sought to be enforced against the Indian Government but also in other parts of the British Empire-See Cook v. Spring(2). This was the law laid down and given effect to by the Privy Council until India attained independence.
151 IA 357. (2) [1899] A.C. 572.
481 Virendra Singh v. State of Uttar Pradesh (1), however, struck a different note particularly as regards the matters covered by the sentences we have given in italics in Lord Dunedin's exposition of the law, and to this decision we shall immediately turn. The facts of the case were briefly these: On January 5, 1948, the ruler of Sarila granted the village Rigwara to the petitioners who moved this Court while on the 28th of January, 1948, the ruler of Charkari granted certain other villages to the same petitioners. As the rights of the petitioners were sought to be nullified by an order of the Government of Uttar Pradesh they filed a petition under Art. 32 of the Constitution praying that the order of the Government of Uttar Pradesh revoking the grants in their favour be declared void and for consequential reliefs.
A few more facts in regard to the constitutional history of these two States is necessary to be stated to appreciate some of the matters which figured in the decision in Virendra Singh's case(2). After the date of the grant in favour of the petitioners 35 States in Bundelkhand and Bhagalkhand, including Charkari and Sarila agreed to unite themselves into a State to be called the United State of Vindhya Pradesh. While this Union was in existence, certain officials of this Government interfered with the rights of the petitioners but the Government of the United State of Vindhya Pradesh issued orders directing the officers to abstain from such interference. Subsequently the rulers of the 35 States dissolved their Union and ceded to the Government of Indian Dominion all their powers and jurisdiction and the Dominion constituted the area into a Chief Commissioner's province for the purpose of administration, but the four villages granted to the petitioners were, however, detached from the centrally administered State and absorbed into Uttar Pradesh. On August 29, 1952, the Governor of Uttar Pradesh revoked the grants made in favour of the petitioners. The question before the Court was whether this order of revocation of the grants made by the former rulers was justiciable in courts and if justiciable, valid.
(1) [1955] 1 S. C. R. 415.
S.C.-31 482 The judgment of the Court was delivered by Bose J. The learned Judge after stating the question arising for decision as being "whether the Union Government had the right and the power to revoke these grants as an act of State?", pointed out that jurists had held divergent views on this matter. At one extreme, he said, was the view expressed by the Privy Council in a series of cases to which reference was made and as summarising their effect the passage from the judgment of Lord Dunedin we have extracted already was cited. At the other extreme was the view of Marshall C.J., in United States v. Percheman(1) from which he quoted the following:
"It may not be, unworthy of remark that it is very unusual, even in case 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; by their relations to each other, and their rights of property, remain undisturbed. If this be the modem rule even in cases of conquest, 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 the inhabitants. The King cedes that only which belonged to him.
Lands he had previously granted were not his to cede. 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 (1) 32 U.S. 51 at pp. 86-87.
483 necessarily understood to pass the sovereignty only, and not to interfere with private property After referring to a few other decisions of the English Courts the learned Judge proceeded:
"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........
Now it is undoubted that the accessions and the acceptance of them by the Dominion of India were acts of State into whose competency no municipal court could enquire; nor 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............ But what then; Whether the Privy Council view is correct or that put forward by Chief Justice Marshall in its broadest outlines is more proper, all authorities are 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." The learned Judge then went on to point out that the title of the petitioners to the disputed villages had not been repudiated upto January 26, 1950. Because of the non exercise of the right to repudiate till that date, the petitioners were admittedly in de facto possession of the villages and the learned Judge adverted to the circumstance that those possessory rights could have been asserted and enforced against all persons except the rulers who granted the lands, and 484 except possibly the succeeding State. Considering it unnecessary to pronounce whether these rights could be enforced against the rulers as well as the Dominion of India as the succeeding sovereign, he observed that as these rights were factually in existence at the date of the Constitution and as by that date the subjects of the rulers of Charkari and Sarila had become the subjects of the Union, there could be no question of the Union Government claiming to exercise an " act of State" operating to deprive the petitioners of their property following in this respect the well-known decisions of Walker v. Baird(1) and Johnstone v. Pedlar(2). He further explained that "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." The passage extracted and indeed the entire judgment is replete with a description of the poetry of India's constitutional evolution as an unified State during the most momentous period of her history from the Declaration of Independence on August 15, 1947, to the coming into force of the Constitution on January 26, 1950 and of the saga of the march of the subjects of the former Indian princes from being subjects of an autocratic ruler to a modern democatic set up in which they are full-fledged citizens of India, in language at once picturesque and of authentic eloquence. We should not be understood to minimise in any manner the political significance of the events described or underrate their importance, content or meaning if we differ somewhat from certain of the conclusions drawn on matters which are relevant for the purposes of the points arising for decision in these appeals.
Pausing here we ought to point out that several decisions of this Court subsequent to Virendra Singh's case(4) of which it is sufficient to refer to Mls. Dalmia Dadri Cement Co.
Ltd. v. The Commissioner of Income Tax(4), Jagan(1) (1892) A.C. 491. (2) (1921) 2 A.C. 262.
(3) [1955] 1 S.C.R. 415. (4) [1959] S.C.R. 729.
485 nath Agrawala v. State of Orissa(1), Promod Chandra Deb v. The State of orissa(2) and State of Saurashtra v. Jamadar Mohamad Abdulla(3) have proceeded on the acceptance of the constitutional doctrine enunciated by the Privy Council. We shall be referring to them later, but before doing so it is necessary to set out certain matters which are not in controversy.
The native Indian rulers were undoubtedly sovereign in the territories under their jurisdiction and they parted with their sovereignty in stages, firstly on accession, then on integration and finally by what has been felicitously termed in the White Paper on Indian States as 'unionization' i.e., by State territory becoming part and parcel of the territory of the Union of India which meant the complete extinction of their separate existence and individual sovereignty and of their States as separate political units. Proceeding next to deal with Virendra Singh's case(4) a close analysis of the reasoning underlying the decision discloses the following as its ratio:
(1) There were two schools of thought as regards the effect of a change in sovereignty in respect of the enforceability of the rights of private individuals against the succeeding sovereign. At one end of the scale were the decisions of the Privy Council which proceeded on the acceptance of the principle, that rights enforceable against the previous ruler or sovereign ceased to be enforceable by the Municipal Courts of the succeeding sovereign unless and until a competent authority or organ of the succeeding sovereign recognised those rights. The passage in the judgment of Lord Dunedin in Vajesingjis case(5) was typical of this view. On the other hand, there was another and, if one might say so, an opposite view expressed in the decisions of the Supreme Court of the United States of which the classic exposition by (1) [1962] 1 S.C.R. 205. (2) [1962] 1 Supp. S.C.R. 405.
(3) [1962] 3 S.C.R. 570. (4) (1955] 1 S.C.R. 415.
(5) 51 I. A. 357.
486 Chief Justice Marshall in Percheman's case(1) was typical, that the proper and just rule of Public International Law which should be given effect to by municipal courts was that the changes in sovereignty over a territory did not or should not have any effect on the rights of the private individuals even as regards the enforceability of their claims as against the State and that it was the obligation certainly moral, if not also legal, of the succeeding sovereign to give effect to such rights previously acquired by gants from the previous sovereign. After pointing out these divergent views the learned Judges, in Virendra Singh's case(2), considered it unnecessary to express their opinion as regards the correctness or acceptability of either view, but proceeded, however, on the assumption that the constitutional doctrine as enunciated by the Privy Council appealed to the facts of the case before them.
(2) Starting from the position that the petitioners obtained a good title to the villages granted to them by the rulers of Sarila and Charkari, they proceeded to analyse the nature of the title which they had under the grants. As a result of this examination they arrived at the conclusion that even on the basis of the decisions of the Privy Council, their title was only voidable at the option of the succeeding sovereign. They recognised that the changes that took place in the constitutional position of the State of Charkari and Sarila undoubtedly brought in a change in the sovereignty of that territory and hold that the changes thus brought about including the treaties which marked the transition were "Acts of State" and that the interpretation or enforcement of rights under the treaties was outside the jurisdiction of municipal courts. The petitioners, they held, could not, therefore obtain any advantage by reliance on any provision in the (1) 32 U.S. 51 at pp. 86-87.
(2) [1955] 1 S.C.R. 415.
487 treaty safeguarding their rights, for apart from the treaties being "Acts of State" they were engagements between two sovereign States and enforceable between them at the instance of the high contracting parties through diplomatic channels and not by recourse to municipal courts, and the petitioners not even being parties to the treaties could not obviously claim any right to enforce them. In this connection the terms of Art. 363 of the Constitution which contained an express embargo on the enforcement by the municipal courts of the, provisions of these treaties were adverted to as reinforcing this position.
(3) If guarantees contained in the treaties be put aside, the next question to be considered was whether the Governments which emerged as a result of the Constitution, were competent to avoid or repudiate the titles obtained by the petitioners under the previous ruler by an "Act of State". They answered this question in the negative for four reasons:
(i) The constitution emerged as a result of the conjoint action of the subjects of the former Indian rulers and the people of former British India. When as a result of this joint effort the Constitution was brought into existence there was no question of conquest or cession so as to attract those doctrines of Public International Law relating to the effects of rights arising out of changes in sovereignty brought about by conquest, cession, treaty etc.
(ii) The subjects of the former Indian rulers became, when the Constitution emerged, Indian citizens, and as against its own subjects or citizens there was no question of any "Act of State" by any Indian Government.
(iii) Even if the previous rulers had vested in them autocratic powers to revoke grants 488 made by them in favour of their subjects, the Government of the Union and the States which were functioning under a Constitution which contained fundamental rights guaranteeing protection of property rights against arbitrary executive action could' not claim to exercise those arbitrary powers which they might have inherited from the previous rulers, and (iv) The petitioners had at the commencement of the Constitution a posses
