PETITIONER: RAJ RAJENDRA MALOJIRAO SHITOLE Vs. RESPONDENT: THE STATE OF MADHYA BHARAT.RAJA BALBHADRA SINGHV.THE STATE O DATE OF JUDGMENT: 02/02/1954 BENCH: MAHAJAN, MEHAR CHAND (CJ) BENCH: MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN BOSE, VIVIAN HASAN, GHULAM CITATION: 1954 AIR 259 1954 SCR 748 CITATOR INFO : R 1955 SC 817 (16) ACT: Constitution of India, art. 385--Madhya Bharat Abolition of Jagirs Act (XXVIII of 1951)--Whether void as not passed by a validly constituted legislature. HEADNOTE: The decision of the Madhya Bharat High Court declaring section 4 (1) (g) and sub-cls. (iv) and (v) of cl. 4 of Schedule I of Madhya Bharat Abolition of Jagirs Act (XXVIII of 1951) as illegal and inoperative was not questioned by either of the parties. It was however, contended that the impugned Act (XXVIII of 1951) was void as it was not passed by a validly constituted legislature within the meaning of the covenant entered into by the Rulers of Madhya Bharat as the provisions of cl. 1(c) of Schedule IV of the covenant for the election of 20 members were not complied with. Held, that as the Madhya Bharat Legislative Assembly actually functioning on the 26th January, 1950, the validity of the Acts passed by it could not be questioned in view of art. 385 of the Constitution irrespective of the fact whether it had been proPerly constituted in accordance with the terms of the covenant or not Scope of articles 379, 382 and 385 discussed. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 4
and 6 of 1953.
Appeals under article 132(1) of the Constitution of
India from the judgment and Order dated the 4th December,
1952, of the High Court of Judicature of the State of Madhya
Bharat at Gwalior in Civil Miscellaneous Cases Nos. 614 of
1951 and 1 of 1952.
P.R. Das (B. Sen, with him) for the appellant in C.A.
No. 4 of 1953.
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Rameshwar Nath for the appellant in C.A. No. 6 of 1953.
M.C. Setalvad, Attorney-General for India, and K. A.
Chitale, Advocate-General of Madhya Bharat (Shiv Dayal,
with them) for the respondent.
1954. February 2. The Judgment of the Court was
delivered by
MAHAJAN C.J.–These appeals preferred on behalf of three
zamindars of the State of Madhya Bharat against the
judgment of the High Court of Judicature of that State dated
the 4th December, 1952, raise common constitutional
questions and can be disposed of by one judgment. The
State also preferred cross appeals against the same
judgment. During the pendency of these appeals, two
petitions under article 32 of the Constitution of India
were also made to this court to obtain the same relief as
was claimed by the appellants in their respective
appeals. During the course of the arguments, the counsel
appearing for the appellant in Civil Appeal No. 5 of 1953
asked leave to withdraw the appeal. This was granted
and the appeal was dismissed as having been withdrawn.
Petitioner. Nos. 116 and 117 of 1953 preferred under
article 3 were also withdrawn and were accordingly
dismissed. Civil Appeals Nos. 4 and 6 of 1953 were argued
before us and this judgment concerns them alone.
The appellant in Civil Appeal No. 4 of 1953, Rajendra
Maloji Rao Shitole, is the proprietor of extensive landed
properties in the State of Madhya Bharat comprising 260
villages under different Sanads granted to his ancestors by
the Rulers of Gwalior from time to time. It was alleged by
him that his income from these properties was in the sum
of Rs. 2,61,637 and that the State of Madhya Bharat,
under purported exercise of its powers under section 3 of
the Madhya Bharat Abolition of Jagirs Act, was about to
issue a Notification for resumption of all his land. By a
petition dated the 7th December, 1951, preferred to the
High Court he asked for a mandamus to restrain the State
from issuing any Notification under section 3(1) of the
Act in respect of his properties and from
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interfering with rights in the said property. The appellant
in Civil Appeal No. 6 of 1953 is another Jagirdar of the
same State. He preferred a similar petition to the High
Court praying for the same relief. These two petitions,
along with a number of other petitions preferred under
article 226 of the Constitution challenging the validity
of the Madhya Bharat Abolition of Jagirs Act and praying
for the issue of a mandamus restraining the State from
issuing the Notification under section 3(1) of the said
Act, were heard by a Bench of three Judges of the High
Court of Madhya Bharat. The ,court, by a majority
judgment, declared that the Madhya Bharat Abolition of
Jagirs Act No. XXVIII of 1951 was valid except as
regards section 4(1)(g) and sub-clauses (iv) and (v) of
clause 4 of Schedule I which were held illegal and
inoperative. A writ of mandamus was directed to be issued
to the State Government directing it not to give effect to
the procisions of the impugned Act stated above. Leave
to appeal to the Supreme Court was granted to the paries
and in pursuance of the leave the appellants referred
the appeal above mentioned and the State referred the two
cross appeals. The cross appeals were not pressed by the
learned Attorney-General and nothing more need be said
about them. They are therefore dismissed with costs.
As regards Civil Appeals . Nos. 4 and 6 of 1953, the
facts are: That in April, 1948, after the partition of
India, and the formation of two Dominions, India and
Pakistan, the Rulers of the States of Gwalior, Indore
and certain other States in Central India being
convinced that the welfare of the people of that region
could best be secured by the establishment of a State
comprising the territories of’ their respective
States with a common Executive, Legislature and
Judiciary entered into an agreement for the
formation of a United State of Gwalior, Indore and Malwa
(Madhya Bharat). It was resolved by them to entrust to a
Constituent Assembly consisting of elected
representatives of the people the drawing up of a
democratic Constitution for the State within the framework
of the Constitution of India to which the Rulers of these
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States had acceded. The covenant entered into by these
Rulers was published on the 7th October, 1948. The Rulers
agreed, under article III of the covenant, to elect a
Rajpramukh of the United State, and by article VI the
Ruler of each Covenanting State agreed to make over
the administration of the State to the Rajpramukh not later
than the first day of July, 1948, and it was agreed that
thereupon all rights, authority and jurisdiction
belonging to the Ruler which appertain, or are incidental
to, the Government of the Covenanting States shall vest in
the United State and were thereafter to be exercisable
only as provided by the covenant or by the Constitution to
be framed thereunder. By article X it was agreed that
as soon as practicable a Constituent Assembly, for the
purpose of framing a Constitution for the United State
within the framework of the covenant and the Constitution
of India, was to be formed and clause (2) of the said
article provided:
“The Rajpramukh shall constitute not later than the
first day of August, 1948, an interim Legislative Assembly
for the United State in the manner indicated in Schedule
IV.”
Schedule IV laid down the following procedure for the
constitution of the Legislative Assembly:
“1. The Legislative Assembly shall consist of–
(a) forty members elected by the members of the
Gwalior Legislative Assembly;
(b) fifteen members elected by the members of the
Indore Legislative Assembly; and
(c) twenty members elected by an electoral college
to be constituted by the Rajpramukh in consultation with
the Government of India to represent Covenanting States
other than Gwalior and Indore.
2. The election shall be by proportional representation
by means of the single transferable vote.
3. The Rajpramukh may make rules for carrying into
effect the foregoing provisions of this Schedule and
securing the due constitution of the interim Legislative
Assembly.”
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In pursuance of this covenant the Rajpramukh took the
oath of office on the 28th of May, 1948. In the meantime
40 members representing the Indore group were elected to
the interim legislative-assembly on the 8th and 9th of
May, 1948, respectively. As regards the election of 20
members that had to be elected by an electoral college,
what happened was this. The Ministry of States,
Government of India, on the 5th July, 1948, informed the
Rajpramukh that there were many practical difficulties in
setting up an electoral college consisting of elected
representatives of the various States, because in many
of the smaller States there were no elected bodies of any
kind. After considering the various difficulties it was
suggested to the Rajpramukh that the twenty seats may be
allocated between the different States in a certain manner
mentioned in the latter and out of these, fourteen may be
allotted to the nominees of the Praja Mandal and the
remaining six may be nominated by the Rajpramukh himself.
This suggestion was modified by a letter of the 19th of
November, 1948, and it was finally agreed upon that the
Madhya Bharat Provincial Congress Committee may be
asked to elect six persons ‘to represent the smaller
States in the Madhya Bharat interim legislative assembly.
This suggestion was not exactly in accord with what had
been indicated in clause 1 (c) of Schedule IV. These
representatives were elected in the manner suggested in the
two letters, on the 19th October, 1948, and they were
declared to be validly elected in terms of the covenant.
On the 30th of October, 1948, the Rajpramukh promulgated
an Ordinance entitled “The Interim Legislative
Assembly Ordinance Samvat 2005”, Ordinance No. 18
of 1948. In the preamble to the Ordinance it was
declared that in accordance with the provisions of the
covenant the legislative assembly had already been
duly constituted. The various sections of the Ordinance
provided for the working of the interim legislative
assembly, i.e., the manner in which it could be summoned
and dissolved or prorogued, how its President and Deputy
President were to be elected and how it was to exercise
the power of
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voting and what number of members would constitute the
quorum. On the 6th of December, 1948, the
Ordinance was repealed and Act XXIII of 1949 took
its place. The legislative assembly thus constituted
was actually functioning on the 26th of January, 1950,
when the Constitution of India: came into force. In the
meantime, by subsequent covenants, the Rulers of the
Covenanting States had agreed to accept the Constitution
of India as the Constitution of the United State of Madhya
Bharat and had abandoned their covenant of forming a
separate Constituent Assembly for framing a Constitution
for the United State of Madhya Bharat. After
the coming into force of the Constitution of India the
interim legislative assembly constituted by the
Rajpramukh and which was functioning on the 26th of
January, 1950, continued to function till some time in
the year 1952 when new elections took place and a
legislative assembly in conformity with the provisions of
the Constitution of India was duly constituted.
On the 30th of November, 1949, the Government of the
State of Madhya Bharat introduced a Bill entitled the
“Madhya Bharat Abolition of Jagirs Bill’ before the
interim legislative assembly and the Bill was passed
into an Act on the 28th of August, 1951, and having been
reserved for the consideration of the President
received his assent on the 27th November, 1951. It was
published in the Madhya Bharat Gazette Extraordinary on
the 7th of December, 1951. The said Act, by section 3,
provided for a date to-be appointed by the Government by
notification for resumption of all jagir lands in the- State
and by section 4 it provided that as from such a date, the
right, title and interest of every jagirdar and of every
other person claiming through him in his jagir lands
including forests, trees, fisheries, wells, tanks, ponds,
water-channels, ferries, pathways, village-sites, huts,
bazaars and mela grounds and mines and minerals whether
being worked or not, ‘shall stand resumed to the State
free from all encumbrances. The Act also provided a
scheme for assessment of compensation m respect of
jagirs thus resumed.
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The appellants contested the validity of this law on a
number of grounds, and, inter alia, on the following
:–
(1) That the so-called legislature which passed the
Act was not a legislature within the meaning of the
covenant entered into by the Rulers of Gwalior, Indore
and certain other States in Central India for the
formation of the United State of Gwalior, Indore and
Malwa (Madhya Bharat) or_within the meaning of Schedule IV
of the said covenant.
(2) That the legislature of Madhya Bharat was, not
competent to enact the said Act and the said acquisition
or resumption of jagirs was not for a public. purpose and
there was no provision for payment of compensation as
understood in law, the compensation provided for being
wholly illusory and the Act was a fraud on the
Constitution.
Before the High Court, Mr. P.R. Das who appeared for
most of the petitioners, confined his arguments some of
the grounds mentioned in clause (2)above. His first
contention that the impugned Act was passed by a legislature
not validly constituted, he reserved for arguing before
this court as the Madhya Bharat High Court by a Full
Bench decision in Shree Ram Dubey v. The State of Madhya
Bharat(1), had already repelled that contention. The two
points argued by him before the High Court were:
(1) That there was no public purpose behind the
acquisition for the resumption of jagir lands and
therefore the Act was unconstitutional and illegal.
(2) That some of the provisions of the impugned Act were
ultra vires in so far as they constituted a fraud on the
Constitution. Both these points which, were urged
before the High Court were not argued before us by the
learned counsel. The point that there was no public
purpose behind the acquisition was abandoned because it
was concluded by the decision of this court in the Orissa
Zamindari appeals, K.C. Gajapati Narayan Deo and Others v.
The State of Orissa(2).
A.I.R. 1952 M.B. 57-178.
A.I.R. 1953 S.C. 375; [1954] S.C.R. 1.
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As regards the second point, as already indicated,
three provisions of the impugned Act had been declared void
by the High Court and Mr. Das contented himself by
accepting that decision. The ‘State Government had
impugned the correctness of the decision of the High Court
declaring these three provisions of the Act to be void but
it also did not press that point. The result of these
concessions in this court is that the arguments in the
two appeals were limited to the first point urged in the
petition, namely, whether the impugned Act was passed by
a Legislature not validly constituted under the covenant
entered into by the Rulers of Madhya Bharat.
Mr. P.R. Das contended that as the Interim Legislative
Assembly was not constituted according to the provisions
of Schedule IV of the covenant it was a body of usurpers
and therefore any laws made by it were wholly void and of
no effect whatsoever. It was urged that the two bodies,
viz. Praja Mandal and the Provincial Congress Committee
who, in two separate divisions, elected fourteen and six
members, did not constitute’ an electoral college to fulfil
the requirement of clause 1 (c) of Schedule IV, and the
members elected could not be said to have been elected in
the manner prescribed by the Schedule and that the
Rajpramukh and the Government of India, in the absence of an
amending covenant, had no power to vary the provisions of
the Schedule. It was said that the object of clause 1
(c) of Schedule IV was that the election of 20 members
should be by an electoral college constituted by the
Rajpramukh in consultation with the Government of India to
represent the Covenanting States other than Gwalior and
Indore and that the election by the Praja Mandal and the
Congress Committee of 14 and 6 members was in clear breach
of the terms of the covenant and that in this manner no
representation was given to the minorities and full effect
was not given to the rule that the election should be by
proportional representation by means of single transferable
vote. The learned Attorney-General met these contentions by
urging, (1) that the question was not open having regard
to the provisions of article 385 of the Constitution of
India
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(2) that the election of 20 members representing the
eighteen States took place in literal compliance of the
covenant, (3) that in any event there was substantial
compliance with the covenant, and lastly (4) that the
declarations made in the Ordinance by the Rajpramukh and
the provisions contained in the Ordinance were conclusive
and were accepted by all the States concerned and could no
longer be challenged.
After a careful consideration of the respective
arguments addressed by Mr. P.R. Das and the learned
Attorney-General we have reached the conclusion that it
is not necessary to consider in detail all the points
discussed by the learned counsel, as in our judgment the
question seems to be concluded by the provisions of article
385 of the Constitution of India. There is no gainsaying the
fact that the election of 20 members to represent the 18
States was not made strictly in the manner indicated in
Schedule IV of the covenant, but it also cannot be
disputed, and in fact was not disputed before the High
Court, that the Legislative Assembly which passed the
impugned Act was on the 26th of January, 1950, in spite of
its defective constitution, in fact functioning as the
Legislature of the State of Madhya Bharat. It had been
declared to have come into existence by an Ordinance
promulgated by the Rajpramukh and its factual existence is
apparent from the laws that it made subsequent to its
formation.
Part XXI of the Constitution of India deals with
“Temporary and Transitional Provisions”. About two dozen
articles in this Part concern themselves with the solution
of the problems of their interval in between the repeal of
the Government of India Act and the coming into being of
bodies and authorities formed by the Constitution. Until
the House or Houses of Legislature or bodies and
authorities formed by the Constitution could be duly formed
it was necessary to say with certain definiteness as to
what bodies or authorities would exercise and perform
the duties conferred by the different provisions of the
Constitution in the meantime. When a silent revolution
was taking place and Princely kingdoms were fast
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disappearing and a new democratic Constitution was being
set up and a provision had to be made for the interval
between the switch-over from one Constitution to
another, there was hardly any time to enquire and
consider whether the bodies or authorities or House or
Houses of Legislature formed under the old Constitutions
which were being scrapped had been formed in strict
compliance with the provisions of those Constitutions or
whether there were any defects in their formation. The
Constitution-makers therefore took notice of their
factual existence and gave them recognition under the
Constitution and invested the bodies that were actually
functioning as such, whether regularly or irregularly,
with the authority to exercise the powers and perform the
duties conferred by the provisions of the
Constitution. That is clearly the scheme of all the
articles mentioned in Part XXI of the Constitution.
Particular reference may be made to articles 379, 382 and
to article 385 which specifically governs the present case.
Article 379 is in these terms:
“(1) Until both Houses of Parliament have been duly
constituted and summoned to meet for the first session under
the provisions of this Constitution, the body
functioning as the Constituent Assembly of the Dominion of
India immediately before the commencement of this
Constitution shall be the provisional Parliament and
shall exercise all the powers and perform all the duties
conferred by the provisions of this Constitution on
Parliament.
Explanation.–For the purposes of this clause.
the Constituent Assembly of the Dominion of India
includes–
(i) the members chosen to represent any State or other
territory for which representation is provided under
clause (2), and
(ii) the members chosen to fill casual vacancies in the said
Assembly.”
The provision made in this article in unambiguous terms
makes the body. functioning as the Constituent
Assembly, whether constituted perfectly or
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imperfectly and whatever its membership on the date
immediately before the commencement of the Constitution, as
the provisional Parliament and vests it with all the
functions and duties conferred by the provisions of
the Constitution on the Parliament. The President was
given power under the provisions of this article to add
members to this body to give representation to certain
States who were not previously represented, and it was
specifically prescribed that if there are any vacancies
then the vacancies could be filled up and the members
returned to fill these vacancies will be considered
members of the provisional Parliament. These specific
provisions are indicative of the fact that the
Constitution-makers, in enacting this article, took
notice of the factual existence of certain bodies without
concerning themselves with the question whether they
had been validly constituted under the Constitution that
brought them into being. Article 382 of the Constitution is
similarly worded. It provides that until the House or Houses
of the Legislature of each State specified in Part A of
the First Schedule has or have been duly constituted and
summoned to meet for the first session under the provisions
of this Constitution, the House or Houses of the
Legislature of the corresponding Province functioning
immediately before the commencement of this Constitution
shall exercise the powers and perform the duties conferred
by the provisions of this Constitution on the House or
Houses of the Legislature of such State. Article 385 is in
exact conformity with the two earlier articles. It provides
that-
“Until the House or Houses of the Legislature of a
State specified in Part B of the First Schedule has or have
been duly constituted and summoned to meet for the first
session under the provisions of this Constitution, the body
or authority functioning immediately before the commencement
of this Constitution as the Legislature of the
corresponding Indian State shall exercise the powers and
perform the duties conferred by the provisions of this
Constitution on the House or Houses of the Legislature of
the State so specified.”
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The whole intent and purpose of these articles was to
give recognition to those bodies or authorities or
House or Houses of Legislature which were actually
functioning before the 26th of January, 1950, and to
invest them with the powers conferred by the provisions of
this Constitution. The Constitution-makers wanted to
indicate the arrangements made by them for the interval
with certain amount of definiteness in order to avoid any
disputes during the interim period as to who the body or
authority was, to exercise the powers conferred by the
provisions of the Constitution. They therefore chose the
formula that whichever body or authority or House or Houses
of Legislature was actually functioning immediately
before the commencement of the Constitution would be the
body or authority or the House that would exercise the
powers and perform the duties conferred by the provisions
of this Constitution on the House, body or authority
specified in the Constitution. They did not take any
risk on this question and the bodies actually functioning
were, like persona designata, invested with powers
conferred by the Constitution. That being the scheme of this
Part and that being also the clear and unambiguous language
of article 385 it follows that the Madhya Bharat . Interim
Legislative Assembly that was actually functioning on
the 26h January, 1950, was invested by the Constitution of
India with powers conferred by the provisions of the
Constitution, irrespective of the fact whether it
had been properly constituted in accordance with
the terms of the covenant or not. The inquiry into this
question thus became barred by adopting this procedure.
Such a procedure was fully justified and was rounded
upon considerations of policy and necessity for, the
protection of the public and individuals whose interests
may be affected thereby. It is manifest that endless
confusion would have resulted if the Constitution had not
adopted that formula and had not barred an inquiry into all
questions as to the original formation of such bodies by
giving validity and recognition to those bodies or
authorities as were actually functioning on the 26th of
January, 1950. Not only did it give
760
validity and recognition to those bodies which were in fact
functioning. then but it also invested these designated
bodies and authorities with powers conferred by the
provisions of the Constitution itself. That being our view
as to the true meaning and ‘intent of the language employed
in article 385 of the Constitution it follows that the
contention raised by Mr. P.R. Das as to the defective
formation of the Interim Legislative Assembly of Madhya
Bharat has no validity. Even if that body was not formed
in strict compliance with the provisions indicated in
Schedule IV of the covenant its defective formation does
not affect the constitutionality of the impugned
statute. The impugned statute was passed in the year 1951
after the Constitution of India had given recognition to,
and conferred powers on, the Assembly under article 385 of
the Constitution. When it made this law it was exercising
its powers under the Constitution of India and not under the
covenant which brought it into existence. The result
therefore is that the only contention that Mr. P.R. Das
argued before us cannot be sustained and it must be held
that it is not well founded.
For the reasons given above we see no force in these two
appeals and they are therefore dismissed with costs.
Appeals dismissed.
Agent for the appellant in C.A. No. 4: 1. N. Shroff.
Agent for the appellant in C.A. No. 6 :Rajinder Narain.
Agent for the respondent: R.H.
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