{"id":251299,"date":"1986-11-12T00:00:00","date_gmt":"1986-11-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/maharaj-dhiraj-himmatsinghji-vs-state-of-rajasthan-anr-on-12-november-1986"},"modified":"2018-08-28T07:09:33","modified_gmt":"2018-08-28T01:39:33","slug":"maharaj-dhiraj-himmatsinghji-vs-state-of-rajasthan-anr-on-12-november-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/maharaj-dhiraj-himmatsinghji-vs-state-of-rajasthan-anr-on-12-november-1986","title":{"rendered":"Maharaj Dhiraj Himmatsinghji & … vs State Of Rajasthan & Anr on 12 November, 1986"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Maharaj Dhiraj Himmatsinghji & … vs State Of Rajasthan & Anr on 12 November, 1986<\/div>\n
Equivalent citations: 1987 AIR 82, 1987 SCR (1) 208<\/div>\n
Author: M Thakkar<\/div>\n
Bench: Thakkar, M.P. (J)<\/div>\n
           PETITIONER:\nMAHARAJ DHIRAJ HIMMATSINGHJI & ORS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF RAJASTHAN & ANR.\n\nDATE OF JUDGMENT12\/11\/1986\n\nBENCH:\nTHAKKAR, M.P. (J)\nBENCH:\nTHAKKAR, M.P. (J)\nKHALID, V. (J)\n\nCITATION:\n 1987 AIR   82\t\t  1987 SCR  (1) 208\n 1987 SCC  (1)\t52\t  JT 1986   851\n 1986 SCALE  (2)762\n\n\nACT:\n    United  State of Rajasthan Ordinance I of 1949,  section\n3(ii)-Meaning  of the 'Law' explained  therein--Whether\t the\norder (Ex. 1) dated 13.9.1946 passed by the Maharaja  grant-\ning  an\t annual allowance of Rs.30,000 to each of  his\tfour\nMaharaj Kumars with respective effect from the date of their\nbirth,\ta \"law\" within the meaning of section 3(ii)<\/a>  of\t the\nOrdinance, so as to bind the State of Rajasthan.\n\n\n\nHEADNOTE:\n    Jodhpur  was a sovereign State till April 6,  1949.\t The\nsaid Jodhpur State merged with the other sovereign States to\nform  the  United State of Rajasthan on April  7,  1949.  On\nApril 7, 1949, Ordinance No. 1 of 1949 was promulgated which\nprovided for the continuance of the laws of the\t covenenting\nStates\t(which\tincluded the Jodhpur State)  in\t the  United\nState  of Rajasthan, by virtue of section 3<\/a> which  provided,\ninter  alia, that all laws in force in the  aforesaid  cove-\nnanting\t States immediately before the commencement  of\t the\nOrdinance shall continue to be in force.\n    On\tSeptember 13, 1946, some two and a half years  prior\nto  the merger of the then State of Jodhpur with the  United\nStates\tof  Rajasthan, the then Ruler of Jodhpur  passed  an\norder  CB\/7114\t(Ex.  1) granting  an  annual  allowance  of\nRs.30,000  per annum to each of the four Maharajkumars\tfrom\nthe dates of their birth and for the period of their minori-\nty. The amounts claimed by the sons by filing our  different\nsuits  in 1955 were decreed by the Trial Court. The  appeals\npreferred by the State were allowed by the High Court  hold-\ning that the order dated 13.9.49 granting the annual  allow-\nance was not a 'law' within the meaning of section 3<\/a> of\t the\nOrdinance.  Hence the appeals by certificate  granted  under\nArticle 133(1)(a)<\/a> of the Constitution.\nDismissing the appeal, the Court,\n    HELD:  1.1\tIn substance the amount directed to be\tpaid\nas per Order Ex. I was nothing else but \"a gift\" by the then\nRuler to his.sons, unrelated to any legal rights of the said\nsons  (appellants). It did not create any  legal  obligation\nenforceable  against the State of Rajasthan inasmuch as\t the\norder  in  question was not a 'law' obtaining  in  the\tthen\nState of Jodhpur. And accordingly it cannot be held that the\nsaid order\n210\ncontinued  to prevail as a 'law' in the State  of  Rajasthan\nunder the 1949 ordinance or any other law. The order  cannot\ntherefore be enforced against the State of Rajasthan  treat-\ning it as a 'law' creating a legally enforceable obligation.\n[216C-D, H-217B]\n    1.2\t Having regard to the language of the order  itself,\nit appeared to be an executive order conferring a grant\t (or\na  gift)  on the appellantsplaintiff. It did  not  have\t the\ncharacteristics of a legislative measure and did not consti-\ntute a law inasmuch as it failed to pass the tests laid down\nby the Supreme Court. [215C-D]\n    State  of  Gujarat v. Vora Fiddali<\/a>, AIR 1964 SC  1043  =\n[1964]\t6  SCR\t461; Narsingh Pratap Singh Deo\tv.  Sate  of\nOrissa<\/a>,\t AIR  [1964] SC 1793 = [1964] 7 SCR  112;  State  of\nMadhya\tPradesh\t v. Bhargavendra Singh<\/a>, AIR 1966  SC  704  =\n[1966] 2 SCR 56; and State of Madhya Pradesh v. Lal  Rampal<\/a>,\nAIR 1966 SC 821 = [1966] 2 SCR 53, referred to.\n    1.3\t In so far as it relates to the period\tanterior  to\nthe passing of the order (stretching from 8 to 21 years) the\norder  cannot  be said to be an order passed  in  connection\nwith  his maintenance of the junior members of\tthe  Ruler's\nfamily\tfor they had already been maintained at the  expense\nof the State exchequer as revealed by the evidence,  includ-\ning the budget estimates. [217D]\n    1.4\t \"Jagir\" has been associated with the grant  in\t re-\nspect  of land revenue. In Thakur Amar Singhji's  case,\t the\nSupreme Court construed the term \"jagir\" in that sense only.\nThough\tthe expression \"Jagir\" would also be  applicable  to\nmaintenance grants in favour of persons who were not  culti-\nvators, such as the members of the Ruling family, the  grant\nhas been construed in relation to rights in respect of\tland\nrevenue\t recoverable from the actual tillers  by  intermedi-\naries  known  as Jagirdars. Testing the grunt said  to\thave\nbeen made under the order in question by the Ruler of  Jodh-\npur  in favour of the appellants, it cannot be said that  it\nis  a grunt of a 'Jagir' in this sense, for, no question  of\nalienation  of land revenue in favour of the  appellants  is\ninvolved.  All\tthat the Ruler has done is to order  that  a\nparticular amount of money be paid in respect of a specified\nperiod\tanterior to the date of the order at  the  specified\nrate. Further the order in question providing for payment of\nannual allowance for the past years during which the  appel-\nlants  had  already been maintained by the  State  exchequer\nlacks  in  the\tessential ingredients  which  would  justify\ncharacterising\tthe order as a rule or a regulation. To\t put\nit somewhat crudely, divesting of refinement, the\n211\norder  merely  directs\tpayment of a specified\tsum  to\t the\nappellants  which  payment has no nexus\t with  any  services\nrendered  by them or any customary right enjoyed by them  by\nvirtue of their status as junior members of the family,\t but\nmerely\tby reason of the fact that the appellants  were\t the\nsons of the Ruler on whom the Ruler intended to confer\tcash\nbenefit. [217F-G, 218B-D, 219H-220B]\n    Thakur  Amarsinghji v. State of Rajasthan, [1955] 2\t SCR\np. 303; and Madhaorao Phalke v. The State of Madhya  Bharat<\/a>,\n[1961] 1 SCR p. 957. distinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL APPELLATE JURISDICTION: Civil Appeals No. 2290 (N)
\nof 1970 and 97 to 99 of 1972.\n<\/p>\n
    From the Judgment and Order dated 6.5.1970 of the Rajas-
\nthan  High Court in First Appeal Nos. 134, 119, 120, 121  of
\n1960.\n<\/p>\n
Harish Salve. Mrs. A.K. Verma and D.N. Mishra for the
\nAppellants.\n<\/p>\n
    V.M. Tarkunde, V.C. Mahajan, S.K. Jain, S, Atreya,\tE.K.
\nGupta and C.V. Subba Rao for the Respondents.
\nThe Judgment of the Court was delivered by
\n     THAKKAR,  J.  Whether the High Court was  justified  in
\nreversing the judgment and decree passed by the trial  court
\nin  favour  of the four sons of the Sovereign Ruler  of\t the
\nthen  State of Jodhpur in the context of an order Passed  by
\nthe  said Ruler, and in dismissing the suits  instituted  by
\nthem  against  the State of Rajasthan for  the\trecovery  of
\nvarious\t amounts  under the said order, it  the\t problem  in
\nthese  appeals2 by the unsuccessful plaintiffs.\t That  order
\nissued\tby the Ruler inter alia provided that an annual\t sum
\nof  Rs.30,000  be paid to each of his  aforesaid  sons\t(de-
\nscribed as Maharajkumars) by way of an annual allowance with
\nretrospective  effect from the date of their birth till\t the
\ndate of their attaining majority.\n<\/p>\n
     On September 13, 1946, some two-and-a-half years  prior
\nto  the merger of the then State of Jodhpur with the  United
\nStates of Rajasthan (which event occurred on April 7, 1949),
\nthe then Ruler of\n<\/p>\n
1. Order No. C.B.\/7114 dated 13th September, 1946. (Ex. 1).\n<\/p>\n
2.  By\tcertificate granted under Article 133(1)(a)<\/a>  of\t the
\nConstitution of India.\n<\/p>\n
212<\/span><\/p>\n
the said State passed order Ex. 1 which is the foundation of
\nthe suits giving rise to the present group of appeals.\n<\/p>\n
\t      The said order in so far as material reads  as
\n\t      under:–\n<\/p>\n
\t      “His  Highness the Maharaja Sahib Bahadur\t has
\n\t      been  pleased  to order that with\t a  view  to
\n\t      making suitable provision for the\t maintenance
\n\t      of  younger  Maharajkumar and Shri  Baiji\t Lal
\n\t      Sahiba:\n<\/p>\n
\t      (i) XXXXX\n<\/p>\n
\t      (ii) xxxxx\n<\/p>\n
\t\t    (iii)  An annual allowance of  Rs.30,000
\n\t      per  annum  each\tbe granted  to\tall  younger
\n\t      Maharajkumars  from the dates of\ttheir  birth
\n\t      for the period of their minority.\n<\/p>\n
\t      (iv) XXXXXX\n<\/p>\n
\t      (v) xxxxxxx.”\n<\/p>\n
    The\t amounts  claimed by each of the four  sons  in\t the
\nsuits instituted by them in 1955 was in respect of the claim
\nfor annual allowance by way of grant at Rs.30,000 per  annum
\ncomputed retrospectively from the dates of their birth\ttill
\nthe  date of the passing of the order, that is to say,\ttill
\nSeptember  13, 1946. The particulars relating to  the  claim
\nmay be tabularized as under:–<\/p>\n
\nAppeal No.    Name of the Date of    Period or\t  Amount\nbefore the    appellant.  Birth\t     which\t  claimed\nSupreme\t\t\t\t     allowance\t  Rs.\nCourt\t\t\t\t     is claimed\n<\/pre>\n
C.A. 97(N)   Devisinghji 20.9.1933  20.9.1933
\nof 1972\t\t\t\t    to\t\t    2,34,550
\n\t\t\t\t    13.9.1946
\n\t\t\t\t    (13 years &
\n\t\t\t\t    7 days).\n<\/p>\n
213<\/span><\/p>\n
C.A. 98(N)   Dalipsinghji 20.10.1937  20.10.1937
\nof 1972\t\t\t\t      to\t    1,61,050
\n\t\t\t\t      13.9.1946
\n\t\t\t\t      (8 years, 11
\n\t\t\t\t      months &
\n\t\t\t\t      11days).\n<\/p>\n
C.A.99(N)  Harisinghji\t21.9.1929  21.9.1929
\nof 1972\t\t\t\t   to\t\t    3,06,500
\n\t\t\t\t   ( 17 years
\n\t\t\t\t   & 10 days)
\nC.A. 2290(1)  Himmat-\t 21.6.1925  21.6.1925
\nof 1970\t      singhji\t\t    to\t\t    4,42,000
\n\t\t\t\t    13.9.1946
\n\t\t\t\t    ( 17 years &
\n\t\t\t\t    10days)
\n\t      The following facts have been established:–
\n\t      (1)  Jodhpur was a sovereign State till  April
\n\t      6, 1949.\n<\/p>\n
\t\t    (2)\t The said Jodhpur State merged\twith
\n\t      the other Sovereign States to form the  United
\n\t      State of Rajasthan on April 7, 1949.\n<\/p>\n
\t\t    (3)\t On April 7, 1949, an ordinance\t was
\n\t      promulgated which provided for the continuance
\n\t      of  the laws of the covenanting States  (which
\n\t      included Jodhpur State) in the United State of
\n\t      Rajasthan by virtue of Section 3<\/a> which provid-
\n\t      ed  inter alia, that all laws in force in\t the
\n\t      aforesaid\t  covenanting\tStates\t immediately
\n\t      before the commencement of the Ordinance shall
\n\t      continue to be in force.\n<\/p>\n
\t\t    (4)\t On  April 7,  1949,  administrators
\n\t      were appointed in respect of different  States
\n\t      which had merged in the State of Rajasthan.
\n    The\t High  Court allowed the appeals  preferred  by\t the
\nState and dismissed the suits instituted by the sons of\t the
\nlate Ruler of Jodhpur on the following reasoning:–\n<\/p>\n
\t      (1)  The Order(Ex. 1), on the basis  of  which
\n\t      the claim of
\n\t      214<\/span>
\n\t      the  plaintiffs was founded was not passed  by
\n\t      the then Ruler in his capacity as the Head  of
\n\t      the  State in the discharge of any  legal\t li-
\n\t      ability or obligation subsisting in favour  of
\n\t      his  four\t sons. It was an  ex-gratia  payment
\n\t      ordered  to  be made by him  in  his  personal
\n\t      capacity as the father of the four  plaintiffs
\n\t      and not in his capacity as the Sovereign Ruler
\n\t      of the State inasmuch as the order for payment
\n\t      was not supported by any law or custom  having
\n\t      the force of law in the then State of Jodhpur.
\n\t\t    (2).  The cash allowance ordered  to  be
\n\t      paid to the four plaintiffs as per Order\t(Ex.\n<\/p><\/blockquote>\n
\t      1) retrospectively for the past period preced-
\n\t      ing  the\tdate of making of the order  was  in
\n\t      substance a gift by the ruler in his  personal
\n\t      capacity\tto his children and not an  enforce-
\n\t      able  obligation\tincurred  by  the  Sovereign
\n\t      Ruler vis-a-vis the plaintiffs.
\n\t\t    (3) On the aforesaid premises the amount
\n\t      which had not yet been recovered in respect of
\n\t      the  past period could not be  recovered\tfrom
\n\t      the  State of Rajasthan as there was no  legal
\n\t      and  enforceable obligation against  the\tsaid
\n\t      State.<\/p><\/blockquote>\n
    It\twas contended before the High Court that  on  taking
\ninto  account the true nature of the order (Ex. 1) it was  a
\nlaw within the meaning of Section 3<\/a> (ii) of Ordinance No.  1
\nof 1949,  the order had all the characteristics of law\tthat
\nis to say, of a binding rule of conduct “of the will of\t the
\nSovereign”.  Since this was a law in the Sovereign State  of
\nJodhpur, its operation continued on the formation  initially
\nof  the\t United State of Rajasthan and subsequently  of\t the
\nState of Rajasthan. The High Court negatived this contention
\nrelying\t on the law enunciated by this Court in a catena  of
\ndecisions. 2 The view taken in the\n<\/p>\n
1.  In this section “Law” means any Act. Ordinance,  regula-
\ntion,  rule,  order or bye-law which having been made  by  a
\ncompetent  Legislature\tor other competent  authority  in  a
\nCovenanting State. has the force of law in that State.”\n<\/p>\n
2.  A.I.R.  1964  S.C. 1043 = [1964] 6 SCR  461.  (State  of
\nGujarat v. Vora Fiddali<\/a> ).\n<\/p>\n
A.I.R. 1964 S.C. 1793 = [1964] 7 SCR 112.\n<\/p>\n
(Narsingh Pratap Singh Deo v State of Orissa)
\nA.I.R. 1966 S.C. 704 = [1966] 2 SCR 56.\n<\/p>\n
(State of Madhya Pradesh v. Bhargavendra Singh<\/a>).
\nA.I.R. 1966 S.C. 820 = [1966] 2 SCR 53.\n<\/p>\n
(State of Madhya Pradesh v. Lal Rampal<\/a>).\n<\/p>\n
215<\/span><\/p>\n
aforesaid decisions in substance was that every order passed
\nby  a Sovereign Ruler was not ‘law’ inasmuch as it  was\t not
\nnecessarily an order passed in the discharge of its legisla-
\ntive  function.\t The Ruler of the Sovereign State,  when  he
\npasses\tan  order,  may be acting in any one  of  the  three
\nspheres namely, legislative sphere, executive sphere or\t the
\njudicial  sphere, though all the three capacities were\tcom-
\nbined in him. All the same, only that order would constitute
\n‘law’,\twhich  was passed in exercise of the powers  of\t the
\nSovereign  in  the legislative. sphere, and none  other.  An
\norder passed by the Sovereign in his executive capacity,  if
\nit is not the result of a legislative process, and if it  is
\nnot  calculated\t or designed to bind as a rule\tof  conduct,
\ncannot\tbe  characterized as a ‘law’. If the result  of\t the
\norder was no more then to bring about a contract, or a grant
\nor a gift, it would not constitute ‘law’. The High Court was
\nright in taking the view that having regard to the  language
\nof  the order itself, it appeared to be an  executive  order
\nconferring a grant (or a gift) on the plaintiffs appellants.
\nIt did not have the characteristics of a legislative measure
\nand  did not constitute a law inasmuch as it failed to\tpass
\nthe  earlier  mentioned tests evolved by this Court  in\t the
\nmatter\tof  State of Gujarat v. Vora  Fiddali<\/a>,\t(supra)\t and
\nNarsingh Pratap Singh Deo v. State of Orissa<\/a> (supra).
\n    It appears to us that in fact the then Ruler of  Jodhpur
\nwas making a gift in favour of the appellants. It is evident
\nfrom the fact that the amount ordered to be paid at the rate
\nof Rs.30,000 per annum is in respect of the preceding years.
\nThe  four sons had. admittedly, already been maintained\t and
\nbrought up with due dignity and decorum, prior to the  pass-
\ning  of the order in question. Since they had  already\tbeen
\nmaintained in a manner and style befitting their status\t and
\ndignity, at the expense of the State, there was no  question
\nof  granting any allowance in respect of the  (past)  period
\nduring\twhich  they had already been  maintained.  There  is
\ntherefore  no escape from the conclusion that it was by\t way
\nof  a gift albeit. without saying so in so many\t words.\t The
\nfact  that the expression ‘gift’ has not been  employed\t did
\nnot  detract from this obvious conclusion. It was an  amount
\nordered to be paid by the Ruler to his sons. It was  clearly
\na  gift, inasmuch as it is not shown that till the  date  of
\nthe order any obligation had been incurred by the grantor in
\nfavour of the grantees either under any law or under\n<\/p>\n
1. As per order Ex.1 dated 13th September.1946.\n<\/p>\n
2.  As\tdisclosed  by the Budget Estimate of  the  State  of
\nJodhpur recorded at Ex. A-10 to Ex. A-12.\n<\/p>\n
216<\/span><\/p>\n
any  custom. It has of course been argued on behalf  of\t the
\nappellants  that under the ‘custom’ of the State, the  Ruler
\nwas  bound to maintain his sons. To say that the  Ruler\t was
\nbound  to  maintain the appellants is not to  say  that\t the
\nRuler  was  obliged to make a gift in respect  of  the\tpast
\nperiod\t during\t which the  appellants had  ‘already’\tbeen
\nmaintained. It is not the case of the appellants, and  there
\nis  no evidence to that effect, that there was a  custom  of
\nmaking\tany  cash allowance every year besides\tbeing  main-
\ntained with due dignity and decorum at the cost of the State
\nexchequer. No such allowance was shown to have been made  in
\nthe  past.  What, it may be wondered, was the  occasion\t for
\nmaking a retrospective allowance for a period ranging from 8
\nyears  to 17 years by the Order (Ex. 1) at a point of  time,
\njust  two-and-a-half years before the merger’? In  fact\t the
\ncircumstances  might well give rise to an inference that  it
\nwas  ‘gift’  being made in anticipation of  the\t forthcoming
\nmerger.\t Be that as it may, at best it is a gift  which\t has
\nnothing to do with any customery obligation of the Ruler  to
\nmaintain the sons, which obligation was already fulfilled by
\nthe Ruler in bringing up the appellants with due dignity and
\ndecorum at the cost of the State for all the past years till
\nthe passing of the said order. A communication addressed  by
\nthe  Chief  Minister  of the then State of  Jodhpur  to\t the
\nFinance\t Minister  prior  to the passing  of  the  aforesaid
\norder:\tsupports  and strengthens the  conclusion  that\t the
\nallowance  which  was ordered to be paid had nothing  to  do
\nwith  the past maintenance as will be evident from the\tfol-
\nlowing extract the refrom:–\n<\/p>\n
\t      “His  Highness has expressed a wish that\t‘his
\n\t      two  sons\t Maharaj Kumars Himmat\tSinghji\t and
\n\t      Hari Singhji should now be placed on an allow-
\n\t      ance to be granted by the State as a  prelimi-
\n\t      nary to their being given Jagirs later on. His
\n\t      Highness’\t idea  is that if  they\t receive  an
\n\t      allowance\t and it is carefully husbanded\tthey
\n\t      should  accumulate some surplus to  help\tthem
\n\t      when  they  become  Jagirdars.  His   Highness
\n\t      considers\t that an allowance of  Rs.5,000\t per
\n\t      mensem in each case is the correct figure.”\n<\/p><\/blockquote>\n
We are therefore satisfied that the High Court was right  in
\ntaking\tthe view that the order for paying annual  allowance
\nat  Rs.30,000  for the past years was not made in  the\tdis-
\ncharge\tof  any legal liability or obligation of  the  Ruler
\nunder  any  law or custom having the force of  law.  It\t was
\nmerely\tan ex-gratia payment in the nature of a\t gift  which
\ncould not\n<\/p>\n
1. Ex. A.6 dated\n<\/p>\n
2. Ex.1
\n217<\/span>
\nbe  enforced  against the State. The relevant  part  of\t the
\norder  cannot be construed as a ‘law’ obtaining in the\tthen
\nState of Jodhpur. And accordingly it cannot be held that the
\nsaid  order continued to prevail as a ‘law’ in the State  of
\nRajasthan  under  the 1949 ordinance or any other  law.\t The
\norder  cannot  therefore be enforced against  the  State  of
\nRajasthan treating it as a ‘law’ creating a legally enforce-
\nable obligation.\n<\/p>\n
    It\twas contended that the purpose of  granting  mainte-
\nnance  allowance  in cash to meet the expenditure  from\t the
\ncivil  list was to enable the junior members of the  Ruler’s
\nfamily\tto  accumulate some surplus to help them  when\tthey
\nbecome jagirdars in due course on attaining majority. It was
\nargued\tthat if the allowance had been granted earlier,\t the
\nallowance  could have been accumulated by the  beneficiaries
\nand  since it was not granted earlier, it was  granted\twith
\nretrospective  effect. We cannot accede to this\t submission.
\nIn so far as it relates to the period anterior to the  pass-
\ning  of the order (stretching from 8 to 21 years) it  cannot
\nbe said to be an order passed in connection with the mainte-
\nnance  of the junior members of the Ruler’s family for\tthey
\nhad  already  been maintained at the expense  of  the  State
\nexchequer as revealed by the evidence, including the  budget
\nestimates.1
\n    Another argument addressed by counsel for the appellants
\nwas  that  the annual allowance ordered to be  paid  to\t the
\njunior members of the family of the Ruler has the same legal
\nstatus\tas  a ‘Jagir’, and that the order granting  such  an
\nallowance  would  have the force of law. The  submission  is
\nsought\tto be buttressed by two decisions of this Court.  In
\nthe first instance support is sought from Thakur Amarsinghji
\nv. State of Rajasthan, [1955] 2 S.C.R.p. 303. This Court was
\nconcerned with the constitutional validity of Rajasthan Land
\nReforms and Resumption of Jagirs Act in Thakur Amarsinghji’s
\ncase.  In  the course of the discussion, the  Court  had  an
\noccasion  to consider the import of the expression  ‘Jagir’.
\nWhat  emerges from the discussion is that the  term  ‘Jagir’
\noriginally  connoted grants made by Rajput Rulers  to  their
\nclansmen  in  lieu of services rendered or to  be  rendered.
\nWith passage of time, the term ‘Jagir’ came to be applied to
\ngrants\tmade for religious and charitable purposes and\teven
\nto  non-Rajputs.  The Court has then proceeded\tto  make  it
\nclear  that  both in its popular sense\tand  in\t legislative
\npractice  the word ‘Jagir’ has come to be used as  connoting
\nall grants which conferred on the grantees rights in respect
\nof  land  revenue. And it was in this sense  that  the\tterm
\n‘Jagir’ was construed under Article 31A<\/a> of the\tConstitution
\nof India. What is of significance is that jagir has been\n<\/p>\n
1. Ex. A-11
\n218<\/span>
\nassociated  with the grant in respect of land  revenue.\t Ac-
\ncordingly  the Court proceeded to observe  that\t considering
\nthe  world jagir in that sense it must be held that a  jagir
\nwas meant to cover all grants in which the grantees had only
\nrights\tin respect of land revenue and were not\t tillers  of
\nthe soil. The expression ‘Jagir’ would also be applicable to
\nmaintenance grants in favour of persons who were not  culti-
\nvators\tsuch as the members of the ruling  family.  However,
\nthe  grant has been construed in relation to rights  in\t re-
\nspect of land revenue recoverable from the actual tillers by
\nintermediaries known as Jagirdars. Testing the grant said to
\nhave  been made under the order in question by the Ruler  of
\nJodhpur in favour of the appellants, it is futile to contend
\nthat  it is a grant of a ‘jagir’ in this sense for no  ques-
\ntion  of alienation of land revenue in favour of the  appel-
\nlants  is involved. All that the Ruler has done is to  order
\nthat  a particular amount of money be paid in respect  of  a
\nspecified  period anterior to the date of the order  at\t the
\nspecified  rate.  There is nothing in  Thakur  Amarsinghji’s
\ncase  which  could come to the rescue of the  appellants  in
\nsupport\t of  the contention that the allowance\tin  question
\nwould  constitute  a ‘Jagir’. It was argued as a  matter  of
\nlogical\t corrollary  that since it was a  jagir,  the  order
\nconfering the jagir could be construed as a ‘law’ even if it
\nwas  not  a legislative measure promulgated  by\t the  Ruler.
\nSince  the  first  premise that\t the  allowance\t constitutes
\n‘Jagir’\t is found to be lacking in substance the  submission
\nurged as a corrollary of this premise must also fail to\t the
\ngrounds as a-matter of logical necessity.
\n    Reliance  was  also placed on Madhaorao  Phalke  v.\t The
\nState of Madhya Bharat<\/a>, [1961] 1 S.C.R.p. 957 in support  of
\nthe  contention that the grant made in favour of the  appel-
\nlants would constitute ‘law’ and that the State of Rajasthan
\nwould therefore be under a legal obligation to make  payment
\nof the annual allowance to the appellants as provided in the
\norder. The submission, in our opinion, is not well  founded.
\nMadhaorao’s  case  is not an authority for  the\t proposition
\nthat any order passed by the sovereign directing payment  of
\nan  allowance  would constitute law of the  State  concerned
\nwhich  would  have  the force of ‘law’\tin  the\t covenanting
\nStates\tby virtue of the provision made for  continuing\t the
\nexisting laws in the covenanting States. The question  which
\nhad  arisen  before this Court in Madhaorao’s  case  was  as
\nregards the kalambandis’ issued by the then Ruler of Gwalior
\nconferring a right to receive Rs.21 and annas 8 per month in
\nfavour of an Ekkan. It may be mentioned that the Ekkans were
\na class of horsemen who formed part of the Peshwa’s Cavalry.
\nThey  were foreigners and they brought with them  their\t own
\nhorses and accountrements. After making an allowance for the
\nfact that they would have to pay for the
\n219<\/span>
\nmaintenance of the horses, a provision for payment of  Rs.21
\nand annas 8 per month was made, by way of ‘Bachat’.  Whether
\nthe  right to receive this amount was a statutory right,  in
\nother  words,  whether the kalambandis on which\t the  rights
\nwere  founded, constituted rules and regulations having\t the
\nforce  of  law\twas the problem posed before  the  Court  in
\nMadhaorao’s  case.  The Court considered the nature  of\t the
\nprovisions  contained in the documents and came to the\tcon-
\nclusion that the documents unambiguously bore the imprint of
\nthe character of a statute or regulation having the force of
\na statute inasmuch as it recognised and conferred:\n<\/p>\n
\t      (i) hereditary rights;\n<\/p><\/blockquote>\n
\t\t    (ii)  it provided for the adoption of  a
\n\t      son by a widow of the deceased holder;\n<\/p><\/blockquote>\n
\t\t    (iii) it provided for the maintenance of
\n\t      widows  out of the funds specially  set  apart
\n\t      for that purpose;\n<\/p><\/blockquote>\n
\t\t    (iv)  it provided for the offering of  a
\n\t      substitute  when\tthe  holder  became  old  or
\n\t      otherwise became unfit to render services; and\n<\/p><\/blockquote>\n
\t\t    (v)\t it also provided for protection  in
\n\t      respect of the execution of decree against the
\n\t      amount payable under the kalambandi.\n<\/p><\/blockquote>\n
Having\ttaken into account all these features of the  grant,
\nthe Court proceeded to observe:\n<\/p>\n
\t      “In our opinion, having regard to the contents
\n\t      of  the  two orders and the character  of\t the
\n\t      provisions  made\tby them in such\t a  detailed
\n\t      manner  it  is difficult to  distinguish\tthem
\n\t      from statutes or laws; in any event they\tmust
\n\t      be treated as rules or regulations having\t the
\n\t      force of law…”\n<\/p><\/blockquote>\n
Far  from supporting the claim of the appellants, the  deci-
\nsion in Madhaorao’s case highlights the fact that the  order
\nin  question providing for payment of annual  allowance\t for
\nthe past years during which the appellants had already\tbeen
\nmaintained  by\tthe State exchequer lacks in  the  essential
\ningredients which would justify characterising the order  as
\na rule or a regulation. To put it somewhat crudely,  divest-
\ning  of\t refinement, the order merely directs payment  of  a
\nspecified sum to
\n220<\/span>
\nthe appellants which payment has no nexus with any  services
\nrendered  by them or any customary right enjoyed by them  by
\nvirtue of their status as junior members of the family,\t but
\n‘merely\t by reason of the fact that the appellants were\t the
\nsons of the Ruler on whom the Ruler intended to confer\tcash
\nbenefit.  In  our opinion, what has been granted  under\t the
\naforesaid  order  is nothing but an ex-gratia payment  or  a
\ngift.\n<\/p>\n
    Lastly  it was contended that the junior members of\t the
\nfamily of the Ruler were entitled to a maintenance allowance
\nduring\ttheir  minority as per the custom in the  State\t and
\nthat they were entitled to grant of Jagir Upon their attain-
\ning  majority as per the same custom. The allowance made  to
\nthe junior members during their minority was treated under a
\nseparate head of the State Budget. On these premises it ,was
\nargued\tthat  the  order in question must  of  necessity  be
\nconstrued as legislative in character. We are not  impressed
\nby  this submission. The allowance made under the order\t had
\nno nexus with any right to a jagir. All the appellants\twere
\nminors\tat the relevant point of time and they had not\teven
\nbecome entitled to jagirs. As discussed earlier the  expres-
\nsion ‘Jagir’ is apposite only in the context of\t alientation
\nof  land  revenue  recoverable from the\t tillers.  What\t was
\ngranted\t by  the Ruler to the appellants had nothing  to  do
\nwith  a jagir. Even according to the custom pleaded  by\t the
\nappellants  the\t question  of granting a  jagir\t would\thave
\narisen\tonly after they had attained majority.\tThe  payment
\nwhich  was  directed to be made to them\t was  not  referable
\neither\tto a jagir or to any other customary right.  It\t was
\nmerely a direction to pay a particular amount computed on  a
\nparticular basis referable to a past period commencing\tfrom
\nthe  date of their birth. We are therefore fully  convinced,
\nand firmly of the view, that in substance the amount direct-
\ned  to\tbe paid as per Order Ex. 1 was nothing\telse  but  a
\n‘gift’ by the then Ruler to his sons, unrelated to any legal
\nrights\tof  the appellants. And that it did not\t create\t any
\nlegal obligation enforceable against the State of  Rajasthan
\ninasmuch as the order in question was not a ‘law’. There  is
\nthus no substance in any of the submissions urged on  behalf
\nof  the\t appellants.  The view taken by the  High  Court  is
\nunexceptionable\t and  the appeals are devoid  of  merit.  We
\naccordingly  dismiss the appeals. There will be no order  as
\nto costs.\n<\/p>\n
S.R.\t\t\t\t\tAppeals dismissed.\n221<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Maharaj Dhiraj Himmatsinghji & … vs State Of Rajasthan & Anr on 12 November, 1986 Equivalent citations: 1987 AIR 82, 1987 SCR (1) 208 Author: M Thakkar Bench: Thakkar, M.P. (J) PETITIONER: MAHARAJ DHIRAJ HIMMATSINGHJI & ORS. Vs. RESPONDENT: STATE OF RAJASTHAN & ANR. DATE OF JUDGMENT12\/11\/1986 BENCH: THAKKAR, M.P. (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-251299","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMaharaj Dhiraj Himmatsinghji & ... vs State Of Rajasthan & Anr on 12 November, 1986 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/maharaj-dhiraj-himmatsinghji-vs-state-of-rajasthan-anr-on-12-november-1986\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Maharaj Dhiraj Himmatsinghji & ... vs State Of Rajasthan & Anr on 12 November, 1986 - 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