{"id":26759,"date":"1964-01-30T00:00:00","date_gmt":"1964-01-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-gujarat-vs-vora-fiddali-badruddin-on-30-january-1964"},"modified":"2017-01-08T17:12:01","modified_gmt":"2017-01-08T11:42:01","slug":"state-of-gujarat-vs-vora-fiddali-badruddin-on-30-january-1964","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-gujarat-vs-vora-fiddali-badruddin-on-30-january-1964","title":{"rendered":"State Of Gujarat vs Vora Fiddali Badruddin … on 30 January, 1964"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Gujarat vs Vora Fiddali Badruddin … on 30 January, 1964<\/div>\n
Equivalent citations: 1964 AIR 1043, \t\t 1964 SCR (6) 461<\/div>\n
Author: N R Ayyangar<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Subbarao, K., Hidayatullah, M., Shah, J.C. & Dayal, Raghubar, Ayyangar, N.R. & Mudholkar, J.R.<\/div>\n
           PETITIONER:\nSTATE OF GUJARAT\n\n\tVs.\n\nRESPONDENT:\nVORA FIDDALI BADRUDDIN MITHIBARWALA\n\nDATE OF JUDGMENT:\n30\/01\/1964\n\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nBENCH:\nAYYANGAR, N. RAJAGOPALA\nDAYAL, RAGHUBAR\nMUDHOLKAR, J.R.\nSINHA, BHUVNESHWAR P.(CJ)\nSUBBARAO, K.\nHIDAYATULLAH, M.\nSHAH, J.C.\n\nCITATION:\n 1964 AIR 1043\t\t  1964 SCR  (6) 461\n CITATOR INFO :\n R\t    1964 SC1793\t (15)\n RF\t    1964 SC1903\t (17)\n R\t    1966 SC 442\t (4)\n R\t    1966 SC 704\t (10)\n R\t    1967 SC  40\t (5)\n R\t    1971 SC 530\t (129,322,364,365,370)\n F\t    1971 SC 744\t (6)\n R\t    1971 SC 846\t (7,8,9)\n D\t    1971 SC 910\t (6)\n RF\t    1971 SC1594\t (8)\n RF\t    1975 SC1518\t (33)\n RF\t    1981 SC1946\t (18)\n RF\t    1986 SC1272\t (75,76)\n R\t    1987 SC  82\t (7)\n\n\nACT:\nAct  of State-Ruler of a native state granted certain rights\nin  forest to grantees-State merged with Dominion of  India-\nDominion of India did not recognise the grant-Effect of non-\nrecognition  before Constitution and  after  Constitution-If\nnon-recognition\t of  the grant amounts to an act  of  State-\nGovernment of India Act 1935-Constitution of India, Art. 32.\n\n\n\nHEADNOTE:\nThe  Ruler  of the State of Sant had issued a  Tharao  dated\n12th  March 1948, granting full right and authority  to\t the\njagirdars  over\t the forests in their  respective  villages.\nPursuant to the agreement dated March 19, 1948, the State of\nSant merged with the Dominion of India.\t On October 1, 1948,\nShree  V.  P. Menon, Secretary to the Government  of  India,\nwrote  a  letter  to the Maharana of  Sant  State  expressly\ndeclaring  that\t no  order passed or  action  taken  by\t the\nMaharana  before  the  day  of\tApril  1st  1948,  would  be\nquestioned.   After  merger  there was\tobstruction  by\t the\nforest\tofficers  when\tthe  respondents  were\tcutting\t the\nforests,  but after some correspondence they were  permitted\nto  cut\t the trees on furnishing an  undertaking  that\tthey\nwould  abide  by  the  decision\t of  the  government.\t The\nGovernment of Bombay, after considering the implications  of\nthe  Tharao,  decided  that  the order\twas  mala  fide\t and\ncancelled  it  on  8th\tJuly  1949  In\tthe  meantime  these\nrespondents  were  stopped from working the forests  by\t the\nGovernment of Bombay.\n462\nThereupon  these respondents filed suits for declaration  of\nrights in the forests and for a permanent injunction against\ninterference   with   those  rights  by\t the   State.\t The\nrespondents  claimed in these suits that the rights  of\t the\ngrantees  to the forests were not liable to be cancelled  by\nthe Dominion of India after the merger of the State of\tSant\nin June, 1948, by executive action, and that the  Government\nof Bombay was not competent to obstruct them in the exercise\nof those rights.  Their claims were opposed by the State  of\nBombay\tmainly\ton  the\t ground\t that  in  the\tabsence\t  of\nrecognition,  express or implied, by the successor State  of\nthe  rights conferred by the former ruler on  the  jagirdars\nthe  respondents  could not enforce them  in  the  Municipal\nCourts.\t  These\t respondents filed five\t suits\tagainst\t the\nState  of Gujarat.  All suits except one were  dismissed  by\nthe  Trial Court.  The District Judge on appeal ordered\t the\ndismissal of that suit also and dismissed the appeals of the\nplaintiffs in the other suits.\tThe plaintiffs then appealed\nto the High Court and the High Court allowed all appeals and\nthe suits were decreed.' The High Court held on the basis of\nthe  letter written by Shri V. P. Menon, Secretary that\t the\nsucceeding sovereign had waived or relinquished its right to\nrepudiate the Tharao.  The High Court further held that\t the\nTharao\twas  not a legislative action of the Ruler  of\tSant\nState.\t The  State  Government appealed to  this  Court  by\nspecial leave.\tHence the appeal.\nPer majority:\nHidayatullah  J. (i) The Act of State comes to an  end\tonly\nwhen  the  new\tsovereign  recognises  either  expressly  or\nimpliedly the rights of the aliens.  It does not come to  an\nend  by\t an  action  of subordinate  officers  who  have  no\nauthority  to  bind the new  sovereign.\t  Till\trecognition,\neither express or implied, is granted by the new  sovereign,\nthe  Act of the State continues.  In the present  case,\t the\nAct  of\t State\tcould  only come to  an\t end  if  Government\nrecognised the rights flowing from Tharao.  That  Government\nnever  did.  There was thus no recognition of the Tharao  or\nthe  rights  flowing from it at any time.   In\tthe  present\ncase,  the  subordinate officers of  the  Forest  Department\nallowed\t each respondent to cut the trees on  furnishing  an\nundertaking  that  he  would abide by the  decision  of\t the\nGovernment  and so the question of waiver or  relinquishment\ndoes not arise.\nSecretary  of  State in Council for India v.  Kamachee\tBoye\nSahaba,\t (1859)\t 13 Moore P. C. 22, Secretary  of  State  v.\nSardar Rustom Khan and Others,<\/a> (68) I. A. 109, MIS.   Dalmia\nDadri Cement Co. Ltd. v. Commissioner of Income-tax,<\/a>  [1959]\nS.C.R.\t729,  The State of Saurashtra v. Memon\tHaji  Ismale\nHaji,<\/a>  [1960] 1 S.C.R. 537, Jagan Nath Agarwala v. State  of\nOrissa,<\/a> [1962] 1 S.C.R. 205, State of Saurashtra V.  Jamadar\nMohamed\t Abdulla  and  Ors.,<\/a> [1961] 3 S.C.R.  970  and\tVaje\nSinghji Jorwar Singh v. Secretary of State for India, (1924)\nL.R. 51 I.A. 357, relied on.\nVirendra Singh and Ors. v. The State of Uttar Pradesh<\/a> [1955]\n1 S.C.R. 415, disapproved.\nBhola  Nath  v. State of Saurashtra, A.I.R. 1954  S.C.\t680,\nBhojrajji  v.  The State of Saurashtra, 61  Bom.   L.R.\t 20,\nreferred to.\n463\n(ii) The  Act of State did not come to an end by  virtue  of\nArticle\t 299(1) of Government of India Act, 1935 and so\t the\nrespondents could not claim the protection of that  section.\nSection 299(1) did not come into play because it could\tonly\ncome  into  play after the rights were recognised.   In\t the\npresent\t case  the  rights  were  never\t recognised  by\t the\nGovernment.\n(iii)\t  The  original\t Act of State continued\t even  after\nJanuary\t 26, 1950, because there was no state succession  on\nJanuary 26, 1950 in so far as the people of Sant State\twere\nconcerned.  For them state succession was over some time  in\n1948.  The Act of State which began in' 1948 could  continue\nuninterrupted  even beyond 1950 and it did not lapse or\t get\nreplaced by another Act of State.  These rights in  question\ncannot\tbe  protected under the Constitution  because  these\nrights were not recognised even before 1950.\n(iv) That  the impugned Tharao was not a law as it  did\t not\nlay  down any rule of conduct.\tIt was a grant made  to\t the\nJagirdars mentioned in the Tharao.. The fact that Maharana's\nTharao\twas passed to benefit a larger number of persons  en\nbloc  does  not\t make it any the more a law if\tit  did\t not\npossess\t any of the indicia of a law.  The Tharao  did\tgive\nrights\tto  the grantees but did not lay down  any  rule  of\nconduct.   It is a grant and as a grant it was open  to\t the\nnew sovereign not to recognise it.\nMadhorao  Phalke  v. The State of Madhya  Bharat,<\/a>  [1961]  1\nS.C.R. 957, distinguished.\nAmeer-unnissa  Begum  and  Ors. v. Mahboob  Begum  and\tOrs.\nA.I.R.<\/a> 1955 S.C. 352. distinguished.\nMaharaja Shri Umaid Mills Ltd. v. Union of India and Others.\nA.I.R.<\/a> 1963 S.C. 953 and The Bengal Nagpur Cotton Mill\tLtd.\nv.  The Board of Revenue, Madhya Pradesh and Others,  A.I.R.<\/a>\n1964 S.C. 888 relied on.\n(v)  The  right\t claimed here is not  even  a  concessionary\nright such as has received the support of the  International\nwriters.  It is more of the nature of a gift by the Ruler at\nthe expense of the State.  It lacks bona fides which is\t one\nof the things to look for.  There is no treaty involved\t and\nwhatever  guarantee there is, Art. 363 of  the\tConstitution\nprecludes  the\tMunicipal  Courts  from\t considering.\tThis\ndistinguishes  the  jurisdiction and power  of\tthe  Supreme\nCourt  of  the\tUnited\tStates\tin  which  consideration  of\ntreaties is included.  In the United States the Constitution\ndeclares  a treaty to be the law of the land.  In India\t the\nposition  is different.\t Article 253 enables legislation  to\nbe made to implement international treaties.  This Court has\naccepted  the principles laid down by the Courts in  England\nin  regard  to the limits of the jurisdiction  of  Municipal\nCourts.\t  The view of the Supreme Court of United States  or\nthe view taken in international law has not been accepted by\nthis Court.  Politically and\n464\nethically  there might have been some reason to\t accept\t and\nrespect\t such  concessions but neither is a reason  for\t the\nMunicipal Courts to intervene.\tThe Rule that the Act of the\nState can be questioned in a Municipal Court has never\tbeen\nadopted\t and it has been considered that it is a matter\t for\nthe  political departments of the State.  However  desirable\nit  may be that solemn guarantees should be respected,\tthis\nCourt  should  not impose its will upon the  State,  because\nthis is outside its jurisdiction.\nIn  this case, the present respondents who were not  parties\nto  the\t merger agreement or to the letter  written  by\t Mr.\nMenon  which  was  made expressly a part  of  the  Agreement\ncannot\ttake  advantage\t of cl. 7.  If\tthey  were  parties,\nArticle 363 would bar such plea.\nMaharaj\t Umeg  Singh and Others v. The State of\t Bombay\t and\nOthers.<\/a> [1955] 2 S.C.R. 164, relied on.\nU.S. v. Percheman, 32 U.S. 51 at 86, disapproved:\nShapleigh v. Miar, 299 U.S. 468, referred to.\nSalaman v. Secretary of State for India, [1906] 1 K. B. 613,\nreferred to.\nCook v. Sprigg. [1899] A.C. 572, referred to.\nFoster v. Nielson. (1829) 2 Pet. 253, referred to.\nBirma  v. The State, A.I.R. 1951 Rajasthan 1 to 7,  referred\nto.\nAmodutijani  v.\t Secretary Southern Nigeria, [1921]  2\tA.C.\n399, referred to.\nClark V. Allen, 331 U.S. 503. referred to.\nWest  Rand Central Gold Minning Co. v. Regem, [1905] 2\tK.B.\n391, referred to.\nSecretary of State v. Bai Raj Bai, (1915) L.R. 42 I.A.\t229,\nrelied on.\nPer  Shah J. (1) The rule that cession of territory  by\t one\nState to another is an act of State and the subjects of\t the\nformer\tState  may enforce only those  rights  in  Municipal\nCourts which the new sovereign recognises has been  accepted\nby this Court.\nM\/s.   Dalmia  Dadri Cement Co., Ltd.\tV.  Commissioner  of\nincomeTax, [1959] S.C.R. 729, jagannath Agarwala v. State of\nOrissa,<\/a> [1962] 1 S.C.R. 205, Promod Chandra Dev v. State  of\nOrissa,<\/a>\t [1962]\t Suppl.\t  1  S.C.R. 405\t and  the  State  of\nSaurashtra v. Jamadar<\/a> mohd.  Abdullah, [1962] 3 S.C.R.\t970,\nrelied on.\nThe Secretary of State In Council of India v. Kamachee\tBoye\nSahaba,\t 7 Moore's I.A. 476, Vajesinghji  Joravarsinghji  v.\nSecretary  of State for India in Council, L.R. 51  I.A.\t 357\nand  Secretary\tof State v. Sardar Rustam Khan\tand  Others,\nL.R.<\/a> 68 I.A. 109, relied on.\n465\n(ii) The Constitutional provisions in the United States\t are\nsomewhat  different.  Under the Constitution of\t the  United\nStates\teach treaty becomes a part of the law of  the  land;\nthe  provisions\t thereof are justiciable and  the  covenants\nenforceable  by the Courts.  In India the treaties have\t not\nthe  force  of\tlaw  and  do not  give\trise  to  rights  or\nobligations enforceable by the Municipal Courts.\nIn   the  present  case\t by  virtue  of\t Art.  363  of\t the\nConstitution,  it is not open to the respondents to  enforce\nthe  covenants of the agreement as stated in the  letter  of\nguarantee  written  by\tMr. V. P.  Menon  in  the  Municipal\nCourts.\nUnited States v. Parcheman, [1833] 32 U.S. 51 at 86, 87, not\nrelied on.\nCook v. Sprigg. [1899] A.C. 572, referred to.\nMaharaj\t Umeg  Singh and Others v. The State of\t Bombay\t and\nOthers,<\/a> [1955] 2 S.C.R. 164, relied on.\n(iii)\t  An  act of State may be spread over a\t period\t and\ndoes  not  arise  merely  an the  point\t of  acquisition  of\nsovereign  right.   Nor\t is the new  sovereign\trequired  to\nannounce his decision when he assumes or accepts sovereignty\nover  foreign  territory, about the rights  created  by\t the\nquondam sovereign, on pain of being held bound by the  right\nso  created.  There. fore till the right to property of\t the\nsubjects  of the former Indian State was recognized  by\t the\nnew  sovereign there was no title capable of being  enforced\nin the courts of the Dominion or the Union.\n(iv) The  functions  of\t a  State  whether  it\tcontains   a\ndemocratic  set\t up  or is  administered  by  an  autocratic\nsovereign  fall\t into  three  broad   categories--executive,\nlegislative and judicial.  The line of demarcation of  these\nfunctions  in an absolute or autocratic form  of  government\nmay be thin and may in certain cases not easily discernible.\nBut  on that account it is not possible to infer that  every\nact of an autocratic sovereign has a legislative content  or\nthat every direction made by him must be regarded as law.\nThe legislative power is the power to make, alter, amend  or\nrepeal\tlaws and within certain definite limits to  delegate\nthat  power.   Therefore It is power to lay down  a  binding\nrule  of conduct.  Executive power is the power\t to  execute\nand  enforce  the laws, and judicial power is the  power  to\nascertain,   construe.\t and  determine\t  the\trights\t and\nobligations  of\t the  parties before  a\t tribunal.   In\t the\npresent case the order dated March 12, 1948, is expressly in\nthe form of a grant of the rights which were not  previously\ngranted and does not either expressly or by implication seek\nto lay down any binding rule of conduct.  The impugned order\nwas  not  a law or an order made under any  law\t within\t the\nmeaning of cl. 4 of the Administration of the Indian  States\nOrder of 1948.\nPromod\tChandra\t Deb and Others v. The State  of  Orisa\t and\nOthers,\t (1962] Suppl.\t1 S.C.R. 405,  Ameer-un-Nissa  Begum\nand  Others v. Mahboob Begwn and Others, A.I.R.<\/a> (1955)\tS.C.\n352, Director of Endow-\n134-159 S.C.-30.\n466\nments,\tGovernment of Hyderabad v. Akram Ali, A.I.R.<\/a>  (1956)\nS.C. 60, Tilkayat Shri Govindlalji Maharaj etc. v. State  of\nRajasthan    and   Others,   A.I.R.   (1963)   S.C.    1638,\ndistinguished, discussed.\nMadhorao Phalke v. The State of Madhya Bharat,<\/a> [1961] 1\t S.C\nR 957 discussed.\nMaharaja  Shree Umaid Mills Ltd. v. Union of  India,  A.I.R.<\/a>\n1963 S.C. 953, relied on.\nThe Bengal Nagpur Cotton Mills Ltd. v. The Board of Revenue,\nMadhya\tPradesh and Others, C.A. No.<\/a> 416 of 1961 decided  on\nJuly 30, 1963, relied on.\n (v)  To attract s. 299(1) of the Government of\t India\tAct,\n1935, there must, exist a right to property which is  sought\nto  be\tprotected.  The subjects of the acceding  State\t are\nentitled only to such rights as the new sovereign chooses to\nrecognize,  in\tthe absence of the any\trecognition  of\t the\nrights\tof the respondents or their  predecessor  Jagirdars,\nthere was no right to property of which protection could  be\nclaimed.  On the Sam* reasoning, grantees of the Ruler could\nnot claim protection under Art 31(1) of the Constitution.\nPer Mudholkar J. (i) The rule of international law on  which\nthe  several  Privy Council decisions as to  the  effect  of\nconquest or cession on the private rights of the inhabitants\nof the conquered or coded territory are founded has become a\npart  of the common law of this country.  This being a\t\"law\nin  force\"  and at the commencement of the  Constitution  is\nsaved by Art. 372 of the Constitution.\tThe Courts in  India\nare,  therefore, bound to en. force that rule and  not\twhat\naccording  to Marshall C.J. is the rule\t at.   International\nLaw  governing the same matter, though the latter has  also,\nreceived  the  approval of several text book  writers.\t The\nrule  which  has.  been\t applied  in  this  country  is\t not\ninequitor nor can it be regarded to be an anachronism.\nVirendra Singh v. The State of Uttar Pradesh,<\/a> [1955]  S.C.R.\n415   United  State  v.\t Percheman,  (1833)  32\t  U.S.\t 51.\ndisapproved.\nSecretary of State for India v. Kamachee Boye Sahiba, (1859)\nis  Moore P. C. 22, Asrar Ahmed v. Durgah Committee,  Ajmer,\nA.I.R.\t1947  P.C. 1, Dalmia Dadri Cement Co.  Ltd.  v.\t The\nCommissioner  of  Incometax,  [1959] S.C.R.  729,  State  of\nSaurashtra  v. Memon Haji Ismail<\/a> [1960] 1 S.C.R. 537,  State\nof Saurashtra v. Jamadar Mohamed Abdullah and Ors.,<\/a> (1962] 3\nS.C.R. 970, Vajesinghji v. Secretary of State for India,, 51\nI.A. 357 and Secretary of State for India v. Bai Rajbai,  42\nI.A.  229  Promod Chandra Dev v. State of  Orissa  and\tOrs.<\/a>\n[1962] Supp.  1 S.C.R. 405, relied on\n(ii)  Two  concepts  underlie  our law.\t  One  is  that\t the\ninhabitants  of\t acquired  territories bring  with  them  no\nrights enforceable against the new sovereign.  The other  is\nthat  the Municipal Courts have no jurisdiction\t to  enforce\nany  rights claimed by them, against the  sovereign  despite\nthe  provisions\t of a treaty unless their rights  have\tbeen\nrecognised by the\n467\nnew  sovereign after cession or conquest.  In other words  a\nright which cannot on its own strength be enforced against a\nsovereign in the Courts of that sovereign must be deemed  to\nhave  ceased  to exist.\t It follows therefore that  a  right\nwhich has ceased to exist does not, require repudiation.\nMunicipal   courts  derive  their  jurisdiction\t  from\t the\nMunicipal law and not from the laws of nations and a  change\nin  the laws of nations brought about by the consent of\t the\nnations of the world cannot confer upon a Municipal Court  a\njurisdiction  which  it does not enjoy under  the  Municipal\nlaw.\n(iii)\t  The  grantees\t of the Ruler could  not  claim\t the\nprotection  of s 299 of Government of India Act, 1935 or  of\nArt.  31 of the Constitution of India as they  possessed  no\nright to property enforceable against the new sovereign.\n(iv) The impugned Tharao was not law.\nMadhorao  Phalke  v. The State of Madhya  Pradesh<\/a>  [1961]  1\nS.C.R. 957, referred to.\nPer  minority  Sinha C.J. and Ayyangar J. (i)  The  juristic\nbasis  of the theory underlying the Privy Council  decisions\nis  that with the extinction of the previous  sovereign\t the\nrights\ttheretofore  exerciseable by the  subjects  of\tthat\nsovereign  by  virtue  of grants  for  that  sovereign\twere\nlikewise extinguished and that without recognition which  is\nreally tantamount to a fresh grant by the new sovereign,  no\ntitle enforceable in the municipal courts of the  succeeding\nsovereign  came\t into being.  The doctrine of Act  of  State\nevolved\t by English courts is one purely of  municipal\tlaw.\nIt  denies to such a court jurisdiction to enquire into\t the\nconsequences of acts which are inseparable from an extension\nof  its\t sovereignty.\tThat  doctrine\twas,  however.\t not\nintended to deny any rule of International Law.\nThe British practice that has prevailed in this country\t has\nnot proved in actual practice to lead to injustice, but\t has\nproceeded  on a just balance between the acquired rights  of\nthe  Private  individual and the economic interests  of\t the\ncommunity,  and therefore there is nothing in it so  out  of\ntune  with notions of propriety or justice to call  for\t its\nrejection.   Even in the case of Virendra Singh\t this  Court\ndid not express any decisive opinion in favour of  accepting\nthe observations in Percheman's case as proper to be applied\nby  the\t municipal  courts  in India.\tThis  Court  has  in\nsubsequent  decisions followed the Privy Council  decisions.\nThe  view of the Supreme Court of the United States has\t not\nbeen  accepted\tby  this  Court\t for  the  reason  that\t the\nConstitutional\tposition  in regard to\tthe  recognition  of\ntreaties  in  both countries are different.  In\t the  United\nStates\ta  treaty  has the force of law, which\tis  not\t the\nposition  here.\t Besides, in India by virtue of Article\t 363\nof  the\t Constitution,\tMunicipal  Courts  are\tdeprived  of\njurisdiction to enforce any rights arising from treaties.\n468\nVinrendra  Singh  v. The State of Uttar\t Pradesh,  [1955]  1\nS.C.R. 415, disapproved.\nVajesinghji  v. Secretary of State for India, 51  I.A.\t357,\nCook v. Sprigg, [1899] A.C. 572, relied on.\nwalker\tv.  Baird,  [1892] A.C. 491,  Johnstone\t v.  Pedlar,\n[1921] 2 A.C. 262, referred to.\t United States v. Percheman,\n32 U.S. 51, disapproved.\nM\/s,  Dalmia  Dadri Cement Co. Ltd. v. The  Commissioner  of\nIncometax,  [1959]  S.C.R. 729, Jagan Nath Agarwala  v.\t The\nState of Orissa,<\/a> [1962] 1 S.C.R. 205, Promodh Chandra Dev v.\nThe  State of Orissa, [1962] 1 Supp.  S.C.R. 405, The  State\nof  Saurarhtra v. Jamadar Mohamad Abdulla,<\/a> [1962]  3  S.C.R.\n970,  Secretary of State for India v. Kanzachee Boye  Sahiba\n[1859]\t7 Moore, I.A. 476, Secretary of State for  India  in\nCouncil\t v. Bai Rai Bat, 42 I.A. 229 and Secretary of  State\nv. Rustom Khan, 68 IA. 109. relied on.\nAmodu  Tijani v. Secretary Southern Nigeria, [1921]  2\tA.C.\n399, referred to.\nWest  Rand  Central Gold Mining Co., v. Rex, [1905]  2\tK.B.\n391. referred to.\nAsrar Ahmed v. Durgha Committee, Ajmer, A.I.R. 1947 P.C.  1,\nrelied on\nAttorney-General  of Canada v. Attorney-General of  Ontario,\n[1937] A.C. 326, referred to.\n(ii) Where  the\t new sovereign assumes jurisdiction  and  it\ndoes some act and there is ambiguity as to whether the\tsame\namounts to a recognition of a pre-existing right or not, the\ncovenant  and  the  treaty right be looked at  in  order  to\nascertain the intention and purpose of that equivocal\tact,\nbut beyond This the covenant and the treaty cannot by  them-\nselves\tbe used either as a recognition pure and simple\t or,\nas waiver of a right to repudiate the pre-excisting  rights.\nIt is needless to point out that since the enforceability of\nthe  rights  against the succeeding sovereign  springs\tinto\nexistence only on recognition by the sovereign, there La no,\nquestion of a waiver or the right to repudiate.\nIn  the present case the High Court erred in holding on\t the\nbasis  of cl. 7 of the letter of Shri V. P. Menon  that\t the\nGovernment waived their right to repudiate the grant made by\nthe previous ruler.\nBhola  Nath v. The State of Saurashtra, A.I.R.\t(1954)\tS.C.\n680. distinguished\n469\n(iii)\t  Just previous to the Constitution the grantee\t had\nno  right  of property enforceable against the\tState.\t The\ncoming into force of the Constitution could not,  therefore,\nmake  any difference, for the Constitution,  did,not  create\nrights in property but only protected rights which otherwise\nexisted.\n(iv) In the present case the \"Tharao\" was not a grant to any\nindividual but to the holders of 5 specified tenures in\t the\nState.\tThe 'Tharao' is more consistent with its being a law\neffecting  an alteration in the tenures of the 5 classes  of\nJagirdars by expanding the range of the beneficial enjoyment\nto  the forests lying within the boundaries of the  villages\nwhich had already been granted to them.\t In this light,\t the\n'Tharao' would not 'be administrative order in any sense but\nwould  partake of the character of legislation by  which  an\nalteration was effected in the scope and content of  tenures\nreferred  to.  The \"Tharao\" dated March 12,  1918  satisfies\nthe  requirement  of  \"a law\" within  Art.  366(10)  of\t the\nConstitution and in consequence, the executive orders of the\nGovernment  of\tBombay by which the forests  right%  of\t the\nplaintiffs  were sought to be denied were illegal and  void.\nThe  \"Tharao\"  was in truth and substance a  law  which\t was\ncontinued  by Art. 372 of !he Constitution and therefore  it\ncould  be revoked by the appellant by legislative  authority\nand not by an executive act.\nMadhorao  Phalke v. The State Madhya Bharat<\/a> [1961]  1  S.C.R\n957, Ameer-un-nissa Begum v. Mahboob Begum, A.I.R.<\/a> 1955\t Sup\n4  Court,  352\tand Director of\t Endowments,  Government  of\nHyderabad Akram Ali, A.I.R. 1956 S.C. 60, relied on.\nPer  Subha Rao J. (i) The decision in Virendra Singh's\tcase\nis  not\t only  correct,\t but. is also  in  accord  with\t the\nprogressive  trend  of modern international  law.   It\tmay,\ntherefore,  be stated without contradiction that in none  of\nthe  decisions of this Court that were given  subsequent  to\nVires. dra Singh's ease the correctness of that decision was\ndoubted.  After all, an act of State is an arbitrary act not\nbased on law, but on the modern version of 'Might is right'.\nIt  is\tan act outside the law.\t There\twere  two  different\nlines of approach.  One adopted by the imperialistic nations\nand  the other by others who were not.\tThat divergence\t was\nreflected  in English and American Courts.  All the  jurists\nof  International law recognise the continuity of  title  to\nimmovable  property of the erstwhile citizens of the  ceding\nstate  after the sovereignty changed over to  the  absorbing\nstate.\t It may, therefore, be held that so far as title  to\nimmovable   property   is   concerned\tthe   doctrine\t  of\nInternational law has become crystallized and thereunder the\nchange\tof  sovereignty\t does not affect the  title  of\t the\nerstwhile  citizens of the ceding state to  their  property.\nIn America the said principle of International Law has\tbeen\naccepted without any qualification.\nM\/S.   Dalmia Dadri Cement Co. Ltd.  V. The Commissioner  of\nIncome-tax,<\/a>  [1959]  S.C.R. 729, Jagannath Agarwala  v.\t The\nState  of Orissa,<\/a> [1962] 1 S.C.R. 205, Promodh Chandra\tDev.\nv. The State of Orrissa\n470\n[1962]\tSupp. 1 S.C.R. 405, State of Saurashtra\t v.  Jamadar\nMohmed\t Abdulla,<\/a>  [1962]  3  S.C.R.  970,   discussed\t and\ndistinguished.\nUnited States v. Percheman, (1833) 32 U.S. 51, relied on.\nFoster\tv.  Neilson,  (1829) 2\tP.E.T.,\t 253,  The  American\nInsurance Co. and the Ocean Insurance Co. v. Bales of Cotton\n(1828) 7 L.Ed. 511, Charles Dehault v. United States, (1835)\n9  Ed. 117, Vajeenngli Joravarsingji v. Secretary  of  State\nfor India in Council, (1951) I.A. 357, referred to.\n(ii) The law in England is that the municipal courts  cannot\nenforce the acquired rights of the erstwhile citizens of the\nceding\tstate  against the absorbing state unless  the\tsaid\nstate  has  recognized or acknowledged\ttheir  title.\tThis\nCourt  accepted\t the English doctrine of Act of State  in  a\nseries of decisions.\nThe  word  \"recognize\"\tmeans  \"to  admit,  to\tacknowledge,\nsomething  existing before\".  By recognition  the  absorbing\nstate  does  not  create or confer a  new  title,  but\tonly\nconfirms   a  pre-existing  one.   Non-recognition  by\t the\nabsorbing  does\t not  divest the title, but  only  makes  it\nunenforceable against the state in municipal courts.\nPramod Chandra Dev. v. The State of Orissa, [1962] Supp.   1\nS.C.R. 503, relied on.\n(iii)\t  The  doctrine of acquired rights, at any  rate  in\nregard\tto  immovable property has  become  crystallized  in\nInternational  Law.   Under  the said law  the\ttitle  of  a\ncitizen\t of  a\tceding state is preserved and  not  lost  by\ncession.   The\tchange of sovereignty does  not\t affect\t his\ntitle.\t The municipal laws of different countries  vary  in\nthe matter of its enforceability against the state.  As\t the\ntitle exists, it must be held that even in those  countries,\nwhich accepted the doctrine of act of State and the right of\na  sovereign  to  repudiate the title,\tthe  title  is\tgood\nagainst all except the State.  Before the Constitution\tcame\ninto force the State did Dot repudiate the title.  When\t the\nConstitution  of  India came into force the  respondent\t and\npersons\t similarly situated who had title to immovable\tpro-\nperty in the Sant State had a title to the said property and\nwere  in actual possession thereof.  They had title  to\t the\nproperty except against the State and they had, at any rate,\npossessory title therein.  The Constitution in Article 31(1)\ndeclares  that no person shall be deprived of  his  property\nsave  by  authority  of\t law.\tThat  is,  the\tConstitution\nrecognised  the title of the citizens of erstwhile State  of\nSant, and issued an injunction against the sovereign created\nby it not to interfere with that right except in  accordance\nwith law.  A recognition by the Supreme Law of the land must\nbe in a higher position than that of an executive  authority\nof  a  conquering  State.  It was held\tthat  the  title  to\nimmovable  property of the respondent was recognised by\t the\nConstitution  itself  and,  therefore,\tnecessarily  by\t the\nsovereign which Is bound by it.\n471\nIn the present case the letter written by the Government  of\nIndia  dated 'October 1, 1948, clearly recognized the  title\nof the respondents to their properties.\t The letter  clearly\ncontains  a  statement in paragraphs 5 and  7  thereof\tthat\nenjoyment of Jagirs, grants etc., existing on April 1, 1948,\nwere guaranteed and that any order passed or action taken by\nthe  Ruler  before the said date would\tnot  be\t questioned.\nThis  is a clear recognition of the property rights  of\t the\nrespondent and similar others.\nVirendra  Singh\t v.  The State of Uttar\t Pradesh,<\/a>  [1955]  1\nS.C.R. 415, relied on.\nM\/S.   Dalmia Dadri Cement Co. Ltd. v. The  Commissioner  of\nIncometax  [1959],  S.C.R. 729, Jagan Nath Agarwala  v.\t The\nState of Orissa<\/a> [1962], 1 S.C.R. 205, Promodh Chandra Dev v.\nThe State of Orissa' [1962], Supp. 1 S.C.R. 405 and State of\nSaurashtra v. Jamadar Mohamed Abdullah<\/a> [1962], 3 S.C.R. 970,\ndiscussed and distinguished.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 182-186  of
\n1963.\n<\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nJanuary\t 1961  of the Gujarat High Court in  Second  Appeals
\nNos. 105, 106, 107, 112 and 193 of 1960.\n<\/p>\n
C.   K. Daphtary, Attorney-General, R. Ganapathy Iyer, R.   K.
\nP.  Shankardass and R. H. Dhebar, for the appellant (in\t all
\nthe appeals).\n<\/p>\n
Purshottam Trikamdas, B. Parthasarathy, J. B.  Dadachanji O.
\nC.  Mathur and Ravinder Narain, for the resdondents (in\t all
\nthe appeals).\n<\/p>\n
January\t 30, 1964.  Hidayatullah J., Shah J., and  Mudholkar
\nJ.   delivered\tseparate  Judgments  allowing  the   appeal.
\nRaghubar  Dayal\t J.  agreed  with  the\torder  proposed\t  by
\nHidayatullah  J.  The dissenting opinion of Sinha  C.J.\t and
\nRajagopala Ayyangar J. was delivered by Ayyangar J.    Subba
\nRao J. delivered a separate dissenting opinion.
\nAYYANGAR  J.-In\t this batch of five  analogous\tappeals,  by
\nspecial\t leave,\t the  main  question  for  determination  is
\nwhether the rights which were in controversy between the
\n472<\/span>
\nparties in the courts below could be enforced by the  Munici
\npal courts; or in other words, whether or not “Act of State”
\npleaded\t by the State of Gujarat is an effective  answer  to
\nthe claims made by the respective respondents to the  rights
\nover  forests  claimed by them in the suits giving  rise  to
\nthese appeals.\n<\/p>\n
Vora  Fiddali  Badruddin Mithibarwala is the  respondent  in
\nCivil  Appeals\tNos. 182 and 184 of 1963.   Vora  Hakimuddin
\nTayabali  Amthaniwala is the respondent in Civil Appeal\t No.
\n183 of 1963.  Mehta Kantilal Chandulal is the respondent  in
\nCivil Appeal No. 185 of 1963, and Pathan Abbaskhan Ahmedkhan
\nis  the respondent in Civil Appeal No. 186 of 1963.  In\t all
\nthese Appeals the State of Gujarat is the appellant.
\nThe course these litigations have taken in the courts  below
\nmay  briefly be stated as follows: The respondent  in  Civil
\nAppeal No. 182 of 1963, is the assignee of the rights of one
\nVora  Hatimbhai\t Badruddin and was brought on  a  record  as
\nplaintiff  during  the\tpendency of the suit  in  the  trial
\ncourt,\tnamely,\t the  court  of\t the  Civil  Judge   (Senior
\nDivision)  at Godhra, being Civil Suit No. 115 of 1950,\t for
\nan   injunction\t and  ancillary\t reliefs  to  restrain\t the
\nappellant  and\tits  officers  from  interfering  with\t the
\nplaintiff’s  alleged  rights to cut and\t carry\taway  timber
\netc.,  from the Gotimada jungle, rasing his rights  under  a
\ncontract dated August 21, 1948, for a period of three  years
\non  payment of a consideration of Rs. 9,501 to the  Jagirdar
\nof the village, Thakore Sardar Singh Gajesingh.\t Civil\tSuit
\nNo.  134  of 1950, giving rise to Civil Appeal\tNo.  184  of
\n1963, was also instituted by the same plaintiff who  claimed
\nby  virtue  of an assignment of the rights under  a  similar
\ncontract  in respect of another forest in  village  Nanirath
\nfor a period of four years, the consideration being the cash
\npayment\t of Rs. 9,501.\tCivil Suit No. 106 of  1951,  giving
\nrise to Civil Appeal No. 183 of 1963. was instituted by Vora
\nHakimuddin Tayyabali Amthaniwalla. His claim was based on an
\nagreement  with the Jagirdar. dated December 7, 1948, for  a
\nperiod\tof  four years for a consideration of Rs.  6,501  in
\nrespect\t of the forest in village Rathda.  All\tthese  three
\nsuits, in which the reliefs claimed
\n473<\/span>
\nwere similar, were tried together and disposed of by a\tcom-
\nmon  judgment,\tdelivered by the trial court on\t January  3,
\n1956.\tAll  the suits were dismissed.\tThe Court  took\t the
\nview  that the rights of the plaintiffs, such as they  were,
\ncould  not be enforced by the courts.  Civil Appeal No.\t 185
\nof  1963 arises out of Suit No. 80 of 1953, filed  by  Mehta
\nKantilal  Chandulal.  He owned the Inami villages  Lalekapur
\nand Narsingpur and alleged that he had given a contract\t for
\ncutting the trees in his villages for a consideration of Rs.
\n11,000 on May 29, 1948, for a period of four years, and that
\nhis  transferee\t had  been  prevented  by  the\tState\tfrom
\nexercising  those  rights.   He also prayed  for  a  similar
\ninjunction,  as\t in  the other suits.  This  suit  was\talso
\ndismissed  by the trial court by its judgment,\tdated  March
\n23,  1956.   The last of the suits is Suit No. 90  of  1955,
\ngiving rise to Civil Appeal 186 of 1963.  The plaintiff\t had
\nclaimed\t to have obtained similar right of felling trees  in
\nthe forest belonging to the Jagirdar of Mayalapad on  August
\n16,  1948 for Rs. 1,191 for a period of three  years.\tThis
\nsuit  was decreed by a judgment dated August 6,\t 1956.\t The
\nunsuccessful  plaintiffs filed four appeals to the  District
\nJudge, Panch Mahals, at Godra, being appeals Nos. 17, 18, 19
\nand 48 of 1956.\t All the appeals were heard together and, by
\na common judgment, were dismissed on February 28, 1957,\t the
\njudgment  of  the  trial court\tbeing  confirmed.   The\t 5th
\nappeal, being appeal No. 74 of 1956, was filed by the State.
\nIle  appeal  was  allowed by  a\t separate  judgement,  dated
\nSeptember  30, 1957, dismissing the suit.   The\t plaintiffs-
\nrespondents filed five second appeals, being Second  Appeals
\nNos. 105, 106, 107, 112 and 193 of 1960 in the High Court of
\nGujarat.   The appeals were heard together and were  allowed
\non  January  24, 1961 with the result that  the\t suits\twere
\ndecreed\t and the appellant was restrained by  an  injunction
\nfrom  interfering  with\t the plaintiffs’  enjoyment  of\t the
\nrights\tin  the forests, as claimed by them.  As  the  State
\nfailed\tto obtain the necessary certificate of fitness\tfrom
\nthe  High  Court, it moved this Court and  obtained  special
\nleave to appeal.  And that is how these appeals have come up
\nto this Court.\tThese appeals were first heard by a Bench of
\nfive  Judges, and it was directed that the matter be  placed
\nfor  hearing  by  a larger Bench, as the Bench\twas  of\t the
\nopinion that the decision of this Court in Virendra Singh v.
\nThe
\n474<\/span>
\nState of Uttar Pradesh(1) required reconsideration.  That is
\nhow  these  appeals  have been placed  before  this  special
\nBench.\n<\/p>\n
Before\tdealing\t with the questions that  arise\t for  deter-
\nmination in these appeals, it is necessary and convenient at
\nthis stage to set out the course of events leading up to the
\ninstitution  of\t the suits aforesaid, giving rise  to  these
\nappeals.   The several villages, the forest rights in  which
\nare  in dispute in these cases, formed part of the State  of
\nSant.\tThe steps in the transition of this State under\t its
\nruler who was designated the Maharana into an integral\tpart
\nof  the\t territory of the Union of India  conformed  to\t the
\nusual  pattern.\t  With the lapse of the paramountcy  of\t the
\nBritish\t  Government   on  the\tenactment  of\tthe   Indian
\nIndependence  Act, the ruler achieved complete\tsovereignty.
\nSoon  thereafter by an instrument of accession\texecuted  by
\nthe ruler, the State acceded to the Dominion of India so  as
\nto  vest  in  the latter power in relation  to\t3  subjects-
\nDefence, External Affairs and Communications.  On March\t 19,
\n1948  the  ruler entered into a merger\tagreement  with\t the
\nGovernor-General of India by which “with a view to integrate
\nthe territory with the Province of Bombay at as early a date
\nas possible”, the full and exclusive authority and powers in
\nrelation  to the administration of the State were  ceded  to
\nthe, Dominion Government.  The agreement was to take  effect
\nfrom  June 10, 1948.  It is necessary to set out two of\t the
\nArticles of this Agreement.  Article 1 ran thus:\n<\/p>\n
\t      “1.   The Maharana of Sant hereby cedes to the
\n\t      Dominion Government full exclusive  authority,
\n\t      jurisdiction and powers for and in relation to
\n\t      the  governance  of the State  and  agrees  to
\n\t      transfer\tthe administration of the  State  to
\n\t      the  Dominion  Government on the 10th  day  of
\n\t      June,  1948 (hereinafter referred to  as\t“the
\n\t      said day”).\n<\/p><\/blockquote>\n
\t      And from the said day the Dominion  Government
\n\t      will be competent to exercise the said powers,
\n\t      (1)   [1955] 1 S.C.R. 415.\n<\/p><\/blockquote>\n
\t      475<\/span><\/p>\n
\t      authority and jurisdiction in such manner\t and
\n\t      through such agency as it may think fit.”\n<\/p><\/blockquote>\n
Under  Article\t3  of the agreement,  the  ruler  agreed  to
\nfurnish to the Dominion Government before October 1, 1948  a
\nlist of all his private properties over which he was,  under
\nthe  terms  of the agreement, to retain full  ownership\t and
\nenjoyment.\n<\/p>\n
After  this  agreement came in force on June 10,  1948,\t the
\nCentral\t Government  delegated its functions to\t the  Bombay
\nGovernment  by\tvirtue\tof the powers vested in\t it  by\t the
\nExtra-Provincial Jurisdiction Act, 1947.  Subsequently, Shri
\nV.  P.\tMenon, Secretary in the Ministry of State,  wrote  a
\nletter to the Maharana of Sant on October 1, 1948 (Ex. 194).
\nThis letter was entitled a “Letter of Guarantee” and was  to
\nbe treated as supplementary to the Agreement of Merger dated
\nMarch  19, 1948.  Amongst other matters. it provided by\t cl.
\n7:\n<\/p>\n
\t      “No order passed or action taken by you before
\n\t      the date of making over the administration  to
\n\t      the Dominion Government will be questioned un-
\n\t      less  the\t order was passed  or  action  taken
\n\t      after  the 1st day of April, 1948, and  it  is
\n\t      considered  by the Government of India  to  be
\n\t      palpably unjust or unreasonable.\tThe decision
\n\t      of  the Government of India in  their  respect
\n\t      will be final.”\n<\/p><\/blockquote>\n
In view of the forthcoming integration of (,lie territory of
\nIndian States into the Dominion of India, the Government  of
\nIndia Act, 1935, was amended and s. 290-A was inserted.\t  In
\nexercise  of  the  powers conferred  by\t that  section,\t the
\nGovernor-General  of  India promulgated\t the  States  Merger
\n(Governor Provinces) Order, 1949, on July 27 1949 which came
\ninto force on August 1, 1949.  As a result of that order the
\nintegration of Indian States, including the Sant State\twith
\nthat  of the province of Bombay, was completed\twith  effect
\nfrom that date, namely August 1, 1949.\n<\/p>\n
In  the\t meantime,  the ruler of the Sant  State  passed  or
\nissued “a resolution” or Tharao on March 12, 1948, which has
\ngiven rise to the present series of litigations.  Under this
\n“‘instrument” marked as Ex. 192, to use a neutral expres-\n<\/p>\n
476<\/span><\/p>\n
sion  in  view of the controversy as to its  nature,  called
\nTharao,\t an order was passed by the Maharana of\t Sant  State
\nwhose  terms  will  be referred to later  and  discussed  in
\ngreater detail, granting forest rights to holders of certain
\nspecified tenures.  The holders of such tenures in the\tSant
\nState entered into a number of agreements with the, parties,
\nparting with their rights in the forest timber, e.tc., for a
\nspecified period, in consideration of cash payments made  by
\nthose  third parties to the holders of the tenures.   It  is
\nnot  necessary to set out in detail all those agreements  it
\nis enough to mention, by way of a sample the agreement dated
\nAugust 21, 1948 (Ex. 175) whereby the tenure-holder  granted
\nas briefly adverted to earlier to Vohra Hatimbhai  Badruddin
\nMithiborwala the right to cut and remove timber and firewood
\nfrom  the forest of Mouja Gothimada for a  consideration  of
\nRs.  9,501  for\t a  period  of\tthree  years.\tThe  written
\nagreement contains quite a number of clauses which it is not
\nnecessary  to set out for the purposes of this case.   After
\nthe  aforesaid\tgrants, correspondence started\tbetween\t the
\ngrantors  and  the grantees on the one hand, and  the  State
\nForest\tDepartment on the other.  When the  District  Forest
\nOfficer\t was informed about the transactions aforesaid.\t and
\nthe  grantees  applied for authorisation  to  remove  timber
\netc.. the Forest Authorities ordered that no export  outside
\nwould\tbe  permitted,\tpending\t receipt  of   orders\tfrom
\nGovernment.   They  also required an  undertaking  from\t the
\npurchaser  that\t he would abide by the decision\t and  orders
\npassed\tby  the Government.  Thereupon the  grantor,  Thakur
\nSardar Singh Gaje Singh gave an undertaking to abide by\t the
\ndecision  and orders of the Government of Bombay in  respect
\nof  the Gothimada forests “rights over which were  conferred
\non  me. by Santrampur State Government on March 12, 1948  in
\ntheir  resolution  No. G. 371, dated March  12,\t 1948.”\t The
\nDivisional  Forest Officer, by his order dated\tJanuary\t 10,
\n1949,  passed an order under the provisions of r. 4  of\t the
\nRules  under s. 41 of the Indian Forest Act authorising\t the
\ngrantee\t to remove forest produce like timber  firewood\t and
\ncharcoal from Gothimada forest.\n<\/p>\n
This  was  followed by a memorandum by\tthe  Conservator  of
\nForests\t North Western Circle of the Bombay State  by  which
\nthe Divisional Forest Officers were directed to conti-\n<\/p>\n
477<\/span><\/p>\n
nue to issue authorisations to contractors of Jagirdars\t who
\nhad obtained rights over the forests in the Sant State under
\nthe Tharao of the ruler, dated March 12, 1948.\tHe, however,
\npointed\t out  that until the question of the rights  of\t the
\ngrantees  over\tprivate forests was finally settled  by\t the
\nGovernment an undertaking should be taken from the,  persons
\nconcerned that they would abide by the orders passed by\t the
\nGovernment in respect of their rights.\tThis, as stated\t al-
\nready  had  been  obtained by  the  District  Officers\teven
\nearlier.   On July 8, 1949, the Government of Bombay  passed
\nan order in which they stated “Government considers that the
\norder  passed by the ruler of the Sant State under  his\t No.
\n371, dated March 12, 1948, transferring forest rights to all
\nthe Jagirdars of the Jagir villages, are mala fide and\tthat
\nthey should be cancelled…….. This decision or order was,
\nhowever,   not\tcommunicated  to  the  jagirdars  or   their
\ncontractors  though  effect was given to it  by\t the  Forest
\nAuthorities  by\t stopping all further fellings.\t  Some\ttime
\nthereafter the respondents issued notices under s. 80 of the
\nCivil  Procedure  Code to the Government of  Bombay  seeking
\nrespect for their rights under the Tharao of March, 1948 and
\nafter  waiting for two months filed the suits out  of  which
\nthese  appeals arise.  By the written statements which\tthey
\nfiled, the Government of Bombay raised principally the\tdef-
\nence that the act of the ruler in passing the Tharao was not
\nbinding\t on  them as the successor State and  that  they  in
\nexercise  of  their sovereign authority, had  cancelled\t the
\nconcession  as\tunreasonable and mala fide by  their  order,
\ndated July 8, 1949, already referred.  It might be mentioned
\nthat after the suit was instituted and while it was  pending
\nbefore the trial judge a formal resolution of the Government
\nof  Bombay was passed and published on the 6th of  February,
\n1953,  in  which they set out the legal\t position  that\t the
\nrights\tacquired  under the Tharao were not  enforceable  as
\nagainst the Bombay Government as the successor State  unless
\nthose  rights were recognised and that as on the other\thand
\nthe same had been specifically repudiated, the Jagirdars and
\ntheir  contractors  had no title which\tthey  could  enforce
\nagainst the Government.\n<\/p>\n
We  have already narrated the course of the litigations\t and
\nthis would be the convenient stage at which to indicate
\n478<\/span>
\nthe  grounds on which the learned Judges of the\t High  Court
\nhave  upheld  the  claims  of the  plaintiffs  who  are\t the
\nrespondents  in the several appeals before us.\t There\twere
\ntwo, principle points that were urged on their behalf before
\nthe learned Judges.  The first was that the Tharao of  March
\n12, 1948, was in truth and substance a ‘law’, a\t legislative
\nact of the ruler of Sant, which was continued under Art. 372
\nof  the\t Constitution  and that in  consequence\t the  rights
\nobtained  by the grantees thereunder could not be  abrogated
\nor  set\t at  naught  by a mere\texecutive  order  which\t the
\nGovernment  resolution of February, 1953,  undoubtedly\twas.
\nThis  submission was rejected by the Court holding that\t the
\nTharao\twas merely a grant originating in an  administrative
\nor  executive order of the ruler.  The other contention\t was
\nthat  through the agreement of merger by which the  integra-
\ntion  of the Sant State with the Dominion of  India  brought
\nabout  an  “act of state” and that  accordingly,  no  rights
\nbased  on the agreement of merger, dated March 19, 1948,  or
\nin  the supplementary letter, dated October 1,\t1948,  could
\nbe,  asserted  or enforced in the Municipal  Courts  of\t the
\nsuccessor   State  unless  the\tsame  were   recognised\t  by
\nGovernment  still cl. 7 of the letter of Shri V.  P.  Menon,
\ndated October 1, 1948, to the ruler could be referred to and
\nrelied\ton for the purpose of drawing an inference that\t the
\nright of the Government to repudiate the grant by the  ruler
\nhad been waived.  This submission was accepted and it was on
\nthis  reasoning\t that the learned Judges  have\tdecreed\t the
\nsuits of the several plaintiffs.\n<\/p>\n
It  is\tthe correctness of these two  conclusions  that\t are
\nbeing challenged before us, the first by the respondente and
\nthe  other  by\tthe  appellant\tState.\t Arising  from\t the
\nsubmissions of the learned Attorney-General the points\tthat
\nrequire examination are as to the legal effect of the acces-
\nsion, integration and merger of the Sant State in the Indian
\nUnion, on the rights that the plaintiffs acquired under\t the
\nTharao,\t dated\tMarch  12, 1948\t and  secondly\twhether\t the
\nprovisions  in s. 299 of the Government of India Act,  1935,
\nor  those contained in Part III of the\tConstitution  affect
\nthe nature or enforceability of those rights.  ‘Me questions
\nto be considered under the first head in particular are:-\n<\/p>\n
\t      (a)   Whether  the rights acquired  under\t the
\n\t      previous
\n\t      479<\/span>
\n\t      ruler are enforceable against the\t Governments
\n\t      of  the  Union and the  States  without  those
\n\t      rights  being  recognised by  the\t appropriate
\n\t      Government.\n<\/p><\/blockquote>\n
\t      (b)   What is the effect of the letter of\t the
\n\t      Government of India, dated October 1, 1948, on
\n\t      the  right  of  the Government  to  refuse  to
\n\t      recognise a grant under the Tharao.\n<\/p><\/blockquote>\n
\t      (c)   What  is the effect of the\tGovernment’s
\n\t      communication  to\t the  Chief  Conservator  of
\n\t      Forests\tdated  July  8,\t 1949  and  of\t the
\n\t      resolution of Government of February, 1953.\n<\/p><\/blockquote>\n
Under the second head, besides the constitutional guarantees
\nprotecting rights to property contained in the Government of
\nIndia  Act  and the Constitution, the effect  in  the  first
\ninstance  of s. 5 of the Government of India Act,  1935,  of
\nthe  acceding States becoming part of the Dominion of  India
\nand  later of the manner in which the Constitution of  India
\nwas framed.\n<\/p>\n
The  other question that requires consideration\t is  whether
\nthe Tharao dated March 12, 1948 is merely a grant  originat-
\ning in an executive order or is it a law which is  continued
\nin operation by Art. 372 of the Constitution.
\nIn Virendra Singh’s case(1) this Court held that even on the
\nbasis  that  the merger of the Indian States in\t the  Indian
\nUnion  and the treaties by which that was accomplished\twere
\nacts  of State, still by reason of the manner in  which\t the
\nConstitution of India was brought into being and because  of
\nthe  provisions\t which\tit contained,  in  particular  those
\nguaranteeing  property rights of its citizens, the  acquired
\nrights\tof the inhabitants of the Indian States quoad  their
\nrulers\tcould  not, after the Constitution, be\tannulled  or
\nabrogated by arbitrary executive action on the part of\tthe,
\nUnion or State Governments.  The learned Judges thus assumed
\nas correct the rule of Public International Law relevant  to
\nthat  context expounded by the Privy Council in a number  of
\ndecisions rendered on appeals from the Indian
\n (1) [1955] 1 S.C R. 41
\n480<\/span>
\nHigh  Courts.  For this reason we consider that it would  be
\nconvenient  for a proper appreciation of the points  now  in
\ncontroversy to premise the discussion by briefly setting out
\nthe principles underlying these decisions of the Privy Coun-
\ncil, reserving their detailed examination to a later  stage.
\nThese principles have been tersely summarised and the  ratio
\nof  the\t rule explained by Lord Dunedin\t in  Vajesinghji  v.
\nSecretary of State for India etc.(1) in a passage which\t has
\nbeen  often  quoted  in later cases on the  subject  and  we
\nconsider that it would be sufficient if we extract it.\t The
\nlearned Lord said:\n<\/p>\n
\t      “When  a territory is acquired by a  sovereign
\n\t      state  for  the first time that is an  act  of
\n\t      State.  It matters not how the acquisition has
\n\t      been brought about.  It may be by conquest, it
\n\t      may be by cession following on treaty, it\t may
\n\t      be   by  occupation  of\tterritory   hitherto
\n\t      unoccupied  by  a recognised  ruler.   In\t all
\n\t      cases the result is the same.  Any  inhabitant
\n\t      of   the\tterritory  can\tmake  good  in\t the
\n\t      municipal\t  courts  established  by  the\t new
\n\t      sovereign\t only such rights as that  sovereign
\n\t      has  through  his officers,  recognized.\tSuch
\n\t      rights  as  he had under the  rule  of  prede-
\n\t      cessors avail him nothing.  Nay more, even  if
\n\t      in  a treaty of cession it is stipulated\tthat
\n\t      certain\tinhabitants  could   enjoy   certain
\n\t      rights,  that does not give a title  to  those
\n\t      inhabitants  to enforce these stipulations  in
\n\t      the  municipal courts.  The right\t to  enforce
\n\t      remains\tonly  with  the\t  high\t contracting
\n\t      parties.” (italics ours).\n<\/p><\/blockquote>\n
This has been accepted as expressing the constitutional\t law
\nof  the\t United Kingdom and the same  has  been.applied\t tot
\nmerely to claims or titles which were sought to be  enforced
\nagainst the Indian Government but also in other parts of the
\nBritish Empire-See Cook v. Spring(2).  This was the law laid
\ndown  and given effect to by the Privy Council\tuntil  India
\nattained independence.\n<\/p>\n
151 IA 357.\t(2) [1899] A.C. 572.\n<\/p>\n
481<\/span><\/p>\n
Virendra  Singh\t v.  State of Uttar  Pradesh<\/a>  (1),  however,
\nstruck a different note particularly as regards the  matters
\ncovered\t by the sentences we have given in italics  in\tLord
\nDunedin’s  exposition  of the law, and to this\tdecision  we
\nshall immediately turn.\t The facts of the case were  briefly
\nthese:\tOn January 5, 1948, the ruler of Sarila granted\t the
\nvillage\t Rigwara  to the petitioners who  moved\t this  Court
\nwhile  on the 28th of January, 1948, the ruler\tof  Charkari
\ngranted certain other villages to the same petitioners.\t  As
\nthe rights of the petitioners were sought to be nullified by
\nan  order  of the Government of Uttar Pradesh they  filed  a
\npetition under Art. 32 of the Constitution praying that\t the
\norder of the Government of Uttar Pradesh revoking the grants
\nin  their  favour  be declared void  and  for  consequential
\nreliefs.\n<\/p>\n
A few more facts in regard to the constitutional history  of
\nthese  two  States is necessary to be stated  to  appreciate
\nsome  of  the  matters\twhich figured  in  the\tdecision  in
\nVirendra  Singh’s case(2).  After the date of the  grant  in
\nfavour\tof  the\t petitioners 35 States\tin  Bundelkhand\t and
\nBhagalkhand,  including Charkari and Sarila agreed to  unite
\nthemselves  into  a State to be called the United  State  of
\nVindhya Pradesh.  While this Union was in existence, certain
\nofficials  of this Government interfered with the rights  of
\nthe  petitioners but the Government of the United  State  of
\nVindhya\t Pradesh  issued orders directing  the\tofficers  to
\nabstain from such interference.\t Subsequently the rulers  of
\nthe  35 States dissolved their Union and ceded to  the\tGov-
\nernment of Indian Dominion all their powers and jurisdiction
\nand   the  Dominion  constituted  the  area  into  a   Chief
\nCommissioner’s\tprovince for the purpose of  administration,
\nbut the four villages granted to the petitioners were,\thow-
\never,  detached\t from the centrally administered  State\t and
\nabsorbed  into\tUttar  Pradesh.\t On  August  29,  1952,\t the
\nGovernor of Uttar Pradesh revoked the grants made in  favour
\nof  the\t petitioners.\tThe question before  the  Court\t was
\nwhether\t this order of revocation of the grants made by\t the
\nformer rulers was justiciable in courts and if\tjusticiable,
\nvalid.\n<\/p>\n
(1)  [1955] 1 S. C. R. 415.\n<\/p>\n
S.C.-31
\n482<\/span>
\nThe  judgment  of  the Court was delivered by  Bose  J.\t The
\nlearned\t Judge\tafter  stating\tthe  question  arising\t for
\ndecision  as  being “whether the Union\tGovernment  had\t the
\nright  and  the power to revoke these grants as\t an  act  of
\nState?”,  pointed out that jurists had held divergent  views
\non  this  matter.   At one extreme, he said,  was  the\tview
\nexpressed by the Privy Council in a series of cases to which
\nreference  was\tmade  and as summarising  their\t effect\t the
\npassage from the judgment of Lord Dunedin we have  extracted
\nalready\t was  cited.  At the other extreme was the  view  of
\nMarshall  C.J., in United States v. Percheman(1) from  which
\nhe quoted the following:\n<\/p>\n
\t      “It may not be, unworthy of remark that it  is
\n\t      very  unusual, even in case of  conquest,\t for
\n\t      the conqueror to do more than to displace\t the
\n\t      sovereign\t  and  assume  dominion\t  over\t the
\n\t      country.\t The modern usage of nations,  which
\n\t      has become law, would be violated; that  sense
\n\t      of justice and of right which is\tacknowledged
\n\t      and felt by the whole civilised world would be
\n\t      outraged,\t  if  private  property\t should\t  be
\n\t      generally\t confiscated,  and  private   rights
\n\t      annulled.\t The people change their allegiance;
\n\t      their  relation to their ancient sovereign  is
\n\t      dissolved;  by their relations to each  other,
\n\t      and   their   rights   of\t  property,   remain
\n\t      undisturbed.   If this be the modem rule\teven
\n\t      in  cases\t of  conquest,\twho  can  doubt\t its
\n\t      application to the case of an amicable cession
\n\t      of territory?…… A cession of territory  is
\n\t      never  understood\t to  be\t a  cession  of\t the
\n\t      property\tbelonging to the  inhabitants.\t The
\n\t      King  cedes that only which belonged  to\thim.
\n\t      Lands  he had previously granted were not\t his
\n\t      to cede.\tNeither party could consider  itself
\n\t      as   attempting\ta  wrong   to\tindividuals,
\n\t      condemned\t  by  the  practice  of\t the   whole
\n\t      civilised\t world.\t The cession of a  territory
\n\t      by  its  name from one sovereign\tto  another,
\n\t      conveying the compound idea of surrendering at
\n\t      the  same\t time the lands and the\t people\t who
\n\t      inhabit them, would be
\n\t       (1)  32 U.S. 51 at pp. 86-87.<\/p><\/blockquote>\n
\t      483<\/span><\/p>\n
\t      necessarily understood to pass the sovereignty
\n\t      only,  and  not  to  interfere  with   private
\n\t      property
\nAfter  referring  to a few other decisions  of\tthe  English
\nCourts the learned Judge proceeded:\n<\/p>\n
\t      “We  do  not  intend to discuss  any  of\tthis
\n\t      because,\t in  our  opinion,  none  of   these
\n\t      decisions has any bearing on the problem which
\n\t      confronts\t us,  namely,  the  impact  of\t the
\n\t      Constitution  on the peoples  and\t territories
\n\t      which joined the Indian Union and brought\t the
\n\t      Constitution into being……..
\n\t      Now  it is undoubted that the  accessions\t and
\n\t      the  acceptance  of them by  the\tDominion  of
\n\t      India were acts of State into whose competency
\n\t      no  municipal  court could  enquire;  nor\t any
\n\t      Court in India, after the Constitution, accept
\n\t      jurisdiction to settle any dispute arising out
\n\t      of them because of Article 363 and the proviso
\n\t      to Article 131; all they can do is to register
\n\t      the  fact\t of accession…………  But\twhat
\n\t      then;  Whether  the  Privy  Council  view\t  is
\n\t      correct  or that put forward by Chief  Justice
\n\t      Marshall\tin  its broadest  outlines  is\tmore
\n\t      proper, all authorities are agreed that it  is
\n\t      within the competence of the new sovereign  to
\n\t      accord  recognition to existing rights in\t the
\n\t      conquered\t  or  ceded  territories   and,\t  by
\n\t      legislation  or  otherwise, to apply  its\t own
\n\t      laws  to them and these laws can,\t and  indeed
\n\t      when the occasion arises must, be examined and
\n\t      interpreted  by  the municipal courts  of\t the
\n\t      absorbing State.”\n<\/p><\/blockquote>\n
The  learned Judge then went on to point out that the  title
\nof  the\t petitioners to the disputed villages had  not\tbeen
\nrepudiated  upto  January  26, 1950.  Because  of  the\tnon-
\nexercise  of  the  right to repudiate till  that  date,\t the
\npetitioners  were admittedly in de facto possession  of\t the
\nvillages and the learned Judge adverted to the\tcircumstance
\nthat  those possessory rights could have been  asserted\t and
\nenforced  against all persons except the rulers who  granted
\nthe lands, and
\n484<\/span>
\nexcept\tpossibly  the  succeeding  State.   Considering\t  it
\nunnecessary  to\t pronounce  whether these  rights  could  be
\nenforced against the rulers as well as the Dominion of India
\nas  the\t succeeding  sovereign, he observed  that  as  these
\nrights\twere  factually\t in existence at  the  date  of\t the
\nConstitution and as by that date the subjects of the  rulers
\nof Charkari and Sarila had become the subjects of the Union,
\nthere could be no question of the Union Government  claiming
\nto  exercise  an ” act of State” operating  to\tdeprive\t the
\npetitioners of their property following in this respect\t the
\nwell-known decisions of Walker v. Baird(1) and Johnstone  v.
\nPedlar(2).   He further explained that “the Constitution  by
\nreason\tof the authority derived from and conferred  by\t the
\npeoples\t of this land blotted out in one  magnificent  sweep
\nall  vestiges  of  arbitrary  and  despotic  power  in\t the
\nterritories  of\t India and over its citizens and  lands\t and
\nprohibited  just such acts of arbitrary power as  the  State
\nnow seeks to uphold.”\n<\/p>\n
The  passage  extracted and indeed the\tentire\tjudgment  is
\nreplete\t with  a  description  of  the\tpoetry\tof   India’s
\nconstitutional evolution as an unified State during the most
\nmomentous  period  of her history from\tthe  Declaration  of
\nIndependence on August 15, 1947, to the coming into force of
\nthe Constitution on January 26, 1950 and of the saga of\t the
\nmarch  of  the subjects of the former  Indian  princes\tfrom
\nbeing subjects of an autocratic ruler to a modern  democatic
\nset up in which they are full-fledged citizens of India,  in
\nlanguage at once picturesque and of authentic eloquence.  We
\nshould\tnot  be\t understood to minimise in  any\t manner\t the
\npolitical significance of the events described or  underrate
\ntheir  importance, content or meaning if we differ  somewhat
\nfrom  certain of the conclusions drawn on matters which\t are
\nrelevant for the purposes of the points arising for decision
\nin these appeals.\n<\/p>\n
Pausing here we ought to point out that several decisions of
\nthis  Court subsequent to Virendra Singh’s case(4) of  which
\nit  is sufficient to refer to Mls.  Dalmia Dadri Cement\t Co.
\nLtd. v. The Commissioner of Income Tax<\/a>(4), Jagan-
\n(1) (1892) A.C. 491.\t\t   (2) (1921) 2 A.C. 262.\n<\/p>\n
(3) [1955] 1 S.C.R. 415.\t   (4) [1959] S.C.R. 729.\n<\/p>\n
485<\/span><\/p>\n
nath  Agrawala v. State of Orissa(1), Promod Chandra Deb  v.
\nThe  State of orissa(2) and State of Saurashtra\t v.  Jamadar
\nMohamad\t Abdulla<\/a>(3) have proceeded on the acceptance of\t the
\nconstitutional doctrine enunciated by the Privy Council.  We
\nshall be referring to them later, but before doing so it  is
\nnecessary  to  set  out certain matters\t which\tare  not  in
\ncontroversy.\n<\/p>\n
The  native Indian rulers were undoubtedly sovereign in\t the
\nterritories  under their jurisdiction and they\tparted\twith
\ntheir  sovereignty in stages, firstly on accession, then  on
\nintegration and finally by what has been felicitously termed
\nin the White Paper on Indian States as ‘unionization’  i.e.,
\nby State territory becoming part and parcel of the territory
\nof the Union of India which meant the complete extinction of
\ntheir  separate existence and individual sovereignty and  of
\ntheir  States as separate political units.  Proceeding\tnext
\nto  deal with Virendra Singh’s case(4) a close\tanalysis  of
\nthe   reasoning\t underlying  the  decision   discloses\t the
\nfollowing as its ratio:\n<\/p>\n
\t      (1)   There  were\t two schools of\t thought  as
\n\t      regards the effect of a change in\t sovereignty
\n\t      in respect of the enforceability of the rights
\n\t      of private individuals against the  succeeding
\n\t      sovereign.   At one end of the scale were\t the
\n\t      decisions of the Privy Council which proceeded
\n\t      on  the  acceptance  of  the  principle,\tthat
\n\t      rights enforceable against the previous  ruler
\n\t      or  sovereign ceased to be enforceable by\t the
\n\t      Municipal\t Courts of the succeeding  sovereign
\n\t      unless  and  until a  competent  authority  or
\n\t      organ  of the succeeding sovereign  recognised
\n\t      those rights.  The passage in the judgment  of
\n\t      Lord   Dunedin  in  Vajesingjis  case(5)\t was
\n\t      typical  of  this view.  On  the\tother  hand,
\n\t      there was another and, if one might say so, an
\n\t      opposite\tview expressed in the  decisions  of
\n\t      the  Supreme  Court of the  United  States  of
\n\t      which the classic exposition by
\n\t      (1)  [1962] 1 S.C.R. 205.\t (2) [1962] 1  Supp.
\n\t      S.C.R. 405.\n<\/p><\/blockquote>\n
\t      (3) [1962] 3 S.C.R. 570.\t(4) (1955] 1  S.C.R.\n<\/p><\/blockquote>\n
\t      415.
\n\t       (5)  51 I. A. 357.\n<\/p><\/blockquote>\n
\t      486<\/span><\/p>\n
\t      Chief Justice Marshall in Percheman’s  case(1)
\n\t      was typical, that the proper and just rule  of
\n\t      Public International Law which should be given
\n\t      effect  to  by municipal courts was  that\t the
\n\t      changes  in sovereignty over a  territory\t did
\n\t      not  or  should  not have any  effect  on\t the
\n\t      rights  of  the private  individuals  even  as
\n\t      regards the enforceability of their claims  as
\n\t      against\tthe  State  and\t that  it  was\t the
\n\t      obligation certainly moral, if not also legal,
\n\t      of the succeeding sovereign to give effect  to
\n\t      such rights previously acquired by gants\tfrom
\n\t      the  previous sovereign.\tAfter  pointing\t out
\n\t      these  divergent views the learned Judges,  in
\n\t      Virendra\t Singh’s  case(2),   considered\t  it
\n\t      unnecessary   to\texpress\t their\topinion\t  as
\n\t      regards  the correctness or  acceptability  of
\n\t      either  view, but proceeded, however,  on\t the
\n\t      assumption that the constitutional doctrine as
\n\t      enunciated  by the Privy Council\tappealed  to
\n\t      the facts of the case before them.
\n\t      (2)   Starting  from  the\t position  that\t the
\n\t      petitioners  obtained  a\tgood  title  to\t the
\n\t      villages\tgranted\t to them by  the  rulers  of
\n\t      Sarila and Charkari, they proceeded to analyse
\n\t      the  nature of the title which they had  under
\n\t      the  grants.  As a result of this\t examination
\n\t      they  arrived at the conclusion that  even  on
\n\t      the  basis  of  the  decisions  of  the  Privy
\n\t      Council, their title was only voidable at\t the
\n\t      option  of  the  succeeding  sovereign.\tThey
\n\t      recognised that the changes that took place in
\n\t      the  constitutional position of the  State  of
\n\t      Charkari\tand Sarila undoubtedly brought in  a
\n\t      change  in the sovereignty of  that  territory
\n\t      and  hold that the changes thus brought  about
\n\t      including\t  the  treaties\t which\tmarked\t the
\n\t      transition  were “Acts of State” and that\t the
\n\t      interpretation or enforcement of rights  under
\n\t      the  treaties was outside the jurisdiction  of
\n\t      municipal courts.\t The petitioners, they held,
\n\t      could  not, therefore obtain any advantage  by
\n\t      reliance on any provision in the
\n\t      (1) 32 U.S. 51 at pp. 86-87.\n<\/p><\/blockquote>\n
\t      (2) [1955] 1 S.C.R. 415.\n<\/p><\/blockquote>\n
\t      487<\/span><\/p>\n
\t      treaty  safeguarding their rights,  for  apart
\n\t      from  the treaties being “Acts of State”\tthey
\n\t      were engagements between two sovereign  States
\n\t      and  enforceable between them at the  instance
\n\t      of   the\thigh  contracting  parties   through
\n\t      diplomatic  channels  and not by\trecourse  to
\n\t      municipal courts, and the petitioners not even
\n\t      being  parties  to  the  treaties\t could\t not
\n\t      obviously claim any right to enforce them.  In
\n\t      this  connection the terms of Art. 363 of\t the
\n\t      Constitution   which  contained\tan   express
\n\t      embargo  on the enforcement by  the  municipal
\n\t      courts  of the, provisions of  these  treaties
\n\t      were adverted to as reinforcing this position.
\n\t      (3)   If guarantees contained in the  treaties
\n\t      be   put\taside,\tthe  next  question  to\t  be
\n\t      considered  was whether the Governments  which
\n\t      emerged as a result of the Constitution,\twere
\n\t      competent\t to  avoid or repudiate\t the  titles
\n\t      obtained by the petitioners under the previous
\n\t      ruler  by\t an “Act of State”.   They  answered
\n\t      this   question  in  the\tnegative  for\tfour
\n\t      reasons:\n<\/p><\/blockquote>\n
\t      (i)   The constitution emerged as a result  of
\n\t      the  conjoint  action of the subjects  of\t the
\n\t      former Indian rulers and the people of  former
\n\t      British India.  When as a result of this joint
\n\t      effort  the  Constitution\t was  brought\tinto
\n\t      existence there was no question of conquest or
\n\t      cession  so as to attract those  doctrines  of
\n\t      Public  International  Law  relating  to\t the
\n\t      effects  of rights arising out of\t changes  in
\n\t      sovereignty   brought   about   by   conquest,
\n\t      cession, treaty etc.\n<\/p><\/blockquote>\n
\t      (ii)  The subjects of the former Indian rulers
\n\t      became, when the Constitution emerged,  Indian
\n\t      citizens,\t and as against its own subjects  or
\n\t      citizens there was no question of any “Act  of
\n\t      State” by any Indian Government.\n<\/p><\/blockquote>\n
\t      (iii) Even  if the previous rulers had  vested
\n\t      in them autocratic powers to revoke grants
\n\t      488<\/span>
\n\t      made by them in favour of their subjects,\t the
\n\t      Government  of the Union and the States  which
\n\t      were  functioning under a\t Constitution  which
\n\t      contained\t  fundamental  rights\tguaranteeing
\n\t      protection   of\tproperty   rights    against
\n\t      arbitrary executive action could’not claim  to
\n\t      exercise\tthose  arbitrary powers\t which\tthey
\n\t      might have inherited from the previous rulers,
\n\t      and\n<\/p><\/blockquote>\n
\t      (iv)  The petitioners had at the\tcommencement
\n\t      of the Constitution a possessory title to\t the
\n\t      property granted to them and had also a  right
\n\t      at that date, to continue in possession unless
\n\t      and  until their title which was voidable\t was
\n\t      extinguished by repudiation by the Governments
\n\t      which  were established by  the  Constitution.
\n\t      These   proprietary  rights   were,   however,
\n\t      protected\t by Arts. 19 (1) (g) and 31  (1)  of
\n\t      the Constitution and so the petitioners  could
\n\t      not  be deprived of their\t proprietary  rights
\n\t      except by competent legislation enacted  after
\n\t      the commencement of the Constitution.\n<\/p><\/blockquote>\n
We  shall now proceed to examine the above reasoning of\t the
\nlearned\t Judges.   Reserving  for  later  consideration\t the
\narguments  addressed to us regarding the divergent views  of
\njudges,\t jurists and writers on Public International Law  on
\nthe  topic of the enforceability of the rights derived\tfrom
\nprevious  sovereigns  against a succeeding  sovereign  on  a
\nchange of sovereignty, we shall proceed on the same lines as
\nin  Virendra Singh’s case(1) viz., on the acceptance of\t the
\nrule as enunciated in the decisions of the Privy Council.
\nIt  is necessary, first to understand the precise scope\t and
\nimplications of these decisions and of the law explained  in
\nthem.\tThe  earliest of these usually referred to  in\tthis
\nconnection is Secretary of State for India v. Kamachee\tBoye
\nSahiba(2)  which  was concerned with the  justiciability  in
\nmunicipal  courts of a seizure by the East India Company  of
\nnot merely the Raj but even of the private properties of the
\n(1)  [1955]  1 S.C.R. 415.  (2) (1859) 7 MOO.\tI.A.  476-13
\nMOO.  P.C. 22.\n<\/p>\n
489<\/span><\/p>\n
Raja  of  Tanjore.   The Privy Council held  in\t a  judgment
\ndelivered by Lord Kingston that as the seizure had been made
\nby  the\t Company as a sovereign power the  municipal  courts
\n“had no means of forming or the right of expressing if\tthey
\nhad  formed any opinion of the propriety or the\t justice  of
\nthat  act.” That is, however, a different aspect of what  is
\ntermed ‘Act of State’ from what is strictly relevant to\t the
\nfacts  before  us.   That  decision  was  referred  to\twith
\napproval by the Privy Council in a case from India-Secretary
\nof  State  for India in Council v. Bai Rajbai(1)  where\t the
\npoint  in  controversy\twas somewhat akin to  those  in\t the
\npresent\t appeals.   The question at issue before  the  Privy
\nCouncil\t was  whether  the respondent was  entitled  to\t the
\ncontinued  ownership  and  possession of  a  village  called
\nCharodi in the province of Gujarat.  The respondent’s  title
\nto  the\t village was ultimately based on rights\t claimed  to
\nhave  been granted by the Gaekwar of Baroda.  The  territory
\nin  which the village was situated was ceded by the  Gaekwar
\nto  the\t British  Government  in 1817.\t The  claim  of\t the
\nrespondent  to\tfull  ownership\t of  the  property  was\t not
\nrecognised  by the Indian Government after the\tcession\t and
\nGovernment  held  that\tthe respondent had no  more  than  a
\nleasehold  interest.  The question before the Privy  Council
\nwas  whether  the  respondent  was  entitled  to  assert  in
\nmunicipal  courts rights more extensive, than what had\tbeen
\nrecognised  by\tthe  authorities.  Dealing  with  this\tLord
\nAtkinson delivering the judgment of the Board stated:\n<\/p>\n
\t      “….It is essential to consider what was\t the
\n\t      precise\trelation  in  which   the   kasbatis
\n\t      (respondents)  stood to the Bombay  Government
\n\t      the moment the cession of their territory took
\n\t      effect,\tand  what  were\t the  legal   rights
\n\t      enforceable  in  the tribunals  of  their\t new
\n\t      sovereign,  of  which  they  were\t  thereafter
\n\t      possessed.   The relation in which they  stood
\n\t      to   their  native  sovereigns   before\tthis
\n\t      cession,\tand  the legal rights  they  enjoyed
\n\t      under them, are, save in one respect, entirely
\n\t      irrelevant  matters.  They could not carry  in
\n\t      under the new regime the legal rights,
\n\t      (1)   42 I.A. 229.\n<\/p><\/blockquote>\n
\t      490<\/span><\/p>\n
\t      if  any, which they might have  enjoyed  under
\n\t      the  old.\t The only legal\t enforceable  rights
\n\t      they could have as against their new sovereign
\n\t      were  those,  and only those, which  that\t new
\n\t      sovereign, by agreement expressed or  implied,
\n\t      or by legislation, chose to confer upon  them.
\n\t      Of  course,  this implied agreement  might  be
\n\t      proved by circumstantial evidence, such as the
\n\t      mode  of\tdealing\t with  them  which  the\t new
\n\t      Sovereign\t adopted, his recognition  of  their
\n\t      old rights, and express or implied election to
\n\t      respect  them and be bound by them, and it  is
\n\t      only  for the purpose of\tdetermining  whether
\n\t      and  to  what  extent the\t new  sovereign\t has
\n\t      recognised  these\t antecession rights  of\t the
\n\t      kasbatis,\t and  has elected or  agreed  to  be
\n\t      bound  by them, that the consideration of\t the
\n\t      existence,  nature, or extent of these  rights
\n\t      becomes a relevant subject for enquiry in this
\n\t      case.   This  principle  is   wellestablished,
\n\t      though  it  scarcely seems to have  been\tkept
\n\t      steadily\tin view in the lower courts  in\t the
\n\t      present  case.  It is only necessary to  refer
\n\t      to  two authorities on the point, namely,\t the
\n\t      case  of\tSecretary  of  State  for  India  v.
\n\t      Kamachee Boye Sahiba [(1859) 7Moo.  I.A. (476)
\n\t      decided  in the year 1859, and Cook v.  Sprigg
\n\t      (1899) A.C. 572] decided in the year 1899.”\n<\/p><\/blockquote>\n
This passage would appear to indicate that the effect of the
\nchange\tof  sovereignty is not to  treat  rights  previously
\nenforceable against the former ruler as only voidable at the
\ninstance  of the succeeding sovereign, but to effect a\tcom-
\nplete destruction of those rights until by recognition or by
\nlegislation of the succeeding sovereign the same is obtained
\nby  the\t previous grantee.  A question very similar  to\t Bai
\nRajbais\t case(1)  arose in Vajesingji’s\t case(2)  where\t the
\nstatement  of  the  law as explained by\t Lord  Atkinson\t was
\napproved  and Lord Dunedin, as already stated, conveyed\t the
\nsame idea when he said:\n<\/p>\n
\t      “Any inhabitant of the territory can make good
\n\t      in the municipal Courts established by the new
\n\t       (1) 42 1.A. 229.\t  (2) 51 I.A. .357.\n<\/p><\/blockquote>\n
\t      491<\/span><\/p>\n
\t      sovereign\t only such rights as that  sovereign
\n\t      has,  through his officers  recognised.\tSuch
\n\t      rights   as   he\thad  under   the   rule\t  of
\n\t      predecessors avail him nothing.”\n<\/p><\/blockquote>\n
It  need hardly be stated that this passage, just like\tthat
\nextracted  from Lord Atkinson, is wholly  inconsistent\twith
\nthe theory that an inhabitant of a territory in which  there
\nhas been a change of sovereignty carries with him a voidable
\ntitle  to  property  which  inheres in\thim  until  by\tsome
\npositive  act  of the new sovereign he is divested  of\tthat
\nright.\n<\/p>\n
Coming\tnearer to the present times we have the decision  in
\nSecretary  of State v. Rustam Khan(1) which related  to\t the
\nenforceability of the right to certain land claimed to\thave
\nbeen  acquired under the Khan of Kalat against\tthe  British
\nGovernment  after the cession by the Khan of  the  territory
\nwhich  included\t the  villages in which\t the  lands  of\t the
\nrespondent were situate.  For the appellant the plea  raised
\nwas  ‘Act  of State’ and the decisions of the Board  in\t Bai
\nRajbai’s case(2) and Vijayesingji’s case (3) were relied on.
\nAmong  the  submissions made to the Board on behalf  of\t the
\nrespondent we would refer to two as of some relevance to the
\npoints\tunder  consideration  in  these\t appeals.   The\t two
\ncontentions were: (1) that a mere change in sovereignty\t was
\nnot to be presumed to disturb the rights of private  owners,
\nand  the terms of the cession by which full sovereignty\t was
\ntransferred  were  to be construed as  passing\tonly  public
\nproperty-relying  for  this proposition on Amodu  Tijani  v.
\nSecretary  Southern  Nigeria(4), (2) that the  effect  of  a
\nchange\tin sovereignty in regard to title to land which\t had
\nbeen perfected under a previous sovereign was different from
\nthat  in  regard to personal obligations.   For\t the  latter
\nproposition  support was sought on the observations of\tLord
\nAlverstone  C.J.  in West Rand Central Gold  Mining  Co.  v.
\nRex(5) reading:\n<\/p>\n
\t      “It must not be forgotten that the  obligation
\n\t      of  conquering States with regard\t to  private
\n\t      pro-\n<\/p><\/blockquote>\n
\t       (1) 68 I.A. 109.\t (2) 42 I.A. 229.\n<\/p><\/blockquote>\n
\t       (3) 51 LA. 357.\t  (4) [1921] 2 A. C. 399.
\n\t       (5). [1905] 2 K.B. 391
\n\t      492<\/span>
\n\t      perty  and private  individuals,\tparticularly
\n\t      land to which title had already been perfected
\n\t      before the conqueror annexation are altogether
\n\t      different from the obligations which arise  in
\n\t      respect of personal rights by contract.”\n<\/p><\/blockquote>\n
We have referred to these arguments and particularly to\t the
\ncitation  of these two decisions, because they\tare  usually
\nreferred  to  in  connection with  a  suggestion  that\teven
\naccording to the British view rights of private\t individuals
\nto  land  and interests in relation to land continue  to  be
\nenforceable unaffected by changes in sovereignty.
\nLord  Atkinson\twho  delivered the  judgment  of  the  Board
\npointed\t out that the cession of the territory by  the\tKhan
\nconstituted  a complete transfer of all sovereignty  to\t the
\nBritish Government, stated:\n<\/p>\n
\t      “On  the\tlegal position that arises  in\tsuch
\n\t      circumstances  there  is a wealth\t of  weighty
\n\t      authority.”\n<\/p><\/blockquote>\n
After  referring in detail to the earlier decisions  of\t the
\nBoard in Kamachee Boye(1), Cook v. Sprigg,(2) Bai Rai Bai(2)
\nand  Vijayesingji,  (4) applied them to the facts  and\theld
\nthat as the title which was asserted had not been recognised
\nby  the British Government; allowed the appeal and  directed
\nthe dismissal of the suit of the respondents.  If the  Privy
\nCouncil\t decisions  lay down the law correctly\tand  we\t are
\napplying  that\tlaw, the fact that it is land  or  immovable
\nproperty  which is claimed or as regards which the right  is
\nasserted  makes\t no difference for the\tapplication  of\t the
\nprinciple.\n<\/p>\n
The last decision to be referred to in this context is\tthat
\nreported. as Asrar Ahmed v. Durgah Committee, Ajmer(5) where
\nLord Simonds said:\n<\/p>\n
\t      “From  this it follows that the rights,  which
\n\t      the inhabitants of that State enjoyed  against
\n\t      its   former  rulers,  availed  them   nothing
\n\t      against  the British Government and could\t not
\n\t      be asserted in the Courts established by\tthat
\n\t      Government
\n\t      (1)   (1859)  7 Moo. I. A. 476.13\t Moo.\tP.C.\n<\/p><\/blockquote>\n
\t      22.
\n\t      (2) [1899] A.C 572.   (3) 42 I.A. 229.
\n\t      (4) 51 I.A. 357.\t   (5) A.I.R. 1947 P. C. I.\n<\/p><\/blockquote>\n
\t      493<\/span><\/p>\n
\t      except  so far as they had been recognised  by
\n\t      the  new sovereign power.\t Recognition may  be
\n\t      by legislation or by agreement express or\t im-
\n\t      plied.  This well-established rule of law\t for
\n\t      which reference may be made to 42 I.A. 229  at
\n\t      p.  237 and 51 I.A. 357 at p. 360, appears  to
\n\t      their Lordships to be peculiarly applicable to
\n\t      an  office, to which material benefits  apper-
\n\t      tain  and which, so far the records show,\t had
\n\t      consistently been regarded as within the\tdis-
\n\t      position of the sovereign power.”\n<\/p><\/blockquote>\n
As we have already pointed out, these decisions of the Privy
\nCouncil have been referred to and followed by this Court  in
\nDalmia\tDadri Cement Co.(1) and the other decisions  already
\nreferred.  The statement of the law therefore in  Virendra’s
\ncase(2)\t that  if the doctrine of Public  International\t Law
\nenunciated   by\t  the  Privy  Council  were   applied,\t the
\npetitioners in that case had a voidable title, which inhered
\nin them even after the change of sovereignty, is not seen to
\nbe correct.  If the view expressed by the Privy Council\t was
\nto  be adopted there is no escape from the conclusion,\tthat
\nthe  grantees under the previous rulers did not\t carry\twith
\nthem,  on-  a  change of sovereignty,  as  subjects  of\t the
\nsucceeding sovereign any inchoate rights as against the\t new
\nsovereign,  but\t their rights in so  far  as  enforceability
\nagainst\t the new sovereign was concerned sprang into  exist-
\nence  only  on recognition express or implied  by  the\tduly
\nconstituted  competent authorities of the  succeeding  sove-
\nreign, apart from legislation.\n<\/p>\n
Pausing here we might observe that this error on the part of
\nthe  learned  Judges  in  appreciating\tthe  ratio  of\t the
\njudgments  of  the Privy Council necessarily  led  them\t ‘to
\nassume\tthat the petitioners before them had certain  rights
\nwhich  they  continued\tto enjoy even after  the  change  of
\nsovereignty and which were protected by the guarantees\tcon-
\ntained in Arts. 19 and 31 of the Constitution.
\nThe  next  step in the reasoning of  the  learned  Judgeswas
\nbased on  the  fact  that the Constitution  was\t framed\t not
\nmerely by the people inhabiting the Provin-
\n(1) [1959] S.C.R. 729.\t      (2) [1955] 1 S.C.R. 415.\n<\/p>\n
494<\/span><\/p>\n
ces of India but as a result of their conjoint action  along
\nwith  the subjects of the former Indian rulers.\t  From\tthis
\nthe inference was drawn that those rules of Public  Interna-
\ntional Law which recognised the rights of a successor  State
\nto refuse to be bound by obligations incurred by or enforce-
\nable against the predecessor State had no application to the
\nchange in sovereignty -brought about when the Union of India
\nwas brought into existence.  This was on the theory that for
\nthat doctrine to operate there must be a cession or transfer
\nof  territory  by one ruler to another and  that  where\t the
\npeople\tof  the entire subcontinent by their  united  action
\nbrought\t into existence a new sovereign State there  was  no
\nquestion of transfer of territory from one sovereign to\t an-
\nother  to  afford scope for the application of the  rule  of
\nPublic International Law.\n<\/p>\n
With  the  greatest respect to the learned Judges,  we\tfeel
\nconstrained  to differ. that a new sovereign emerged on\t the
\nunification  of\t India by the merger or\t absorption  of\t the
\nIndian States with the Provinces of British India cannot  be
\nquestioned  and\t that this was by the process of  the  sove-
\nreignty\t of  the rulers of the former  Indian  States  being
\nextinguished cannot be disputed either.\n<\/p>\n
We  are\t here  not  concerned  with  whether  India  as\t  an
\nInternational person has undergone any change, vis-a-vis  in
\nits  relationship with other States or in the  International
\nOrganisations but in a more limited and, so to speak, domes-
\ntic sphere.  The territories under the rulers of the  former
\nIndian\tPrinces\t undoubtedly passed from  one  sovereign  to
\nanother\t when  as  a result of\tthe  ‘unionisation’  by\t the
\nGovernment of India, they became integral parts first of the
\nDominion  of  India  and later of the  Union  of  India.   A
\ntransfer  of territory from under one sovereign\t to  another
\nmay  be effected in a variety of ways-conquest,\t annexation,
\nby  cession under a treaty after a war or without a war,  by
\nrevolution  by\temancipation  of  subject  peoples  and\t  by
\nterritorial resettlements.  These changes possess one common
\nfeature viz., that one sovereign ceases to rule a  territory
\nand  another  takes its place.\tFor the application  of\t the
\nrules  which  have  been  evolved  in  connection  with\t the
\nproblems arising from such succession, little turns for\t the
\npurpose\t of British Constitutional Law on either the  manner
\nin which the change of
\n495<\/span>
\nsovereignty was brought about or whether the absorption\t was
\npartial\t or complete in the sense of a total  extinction  of
\nthe  previous sovereignty of the absorbed State, leaving  no
\ntrace  of  survival after the merger.  In passing  we  might
\nmention\t that, in fact. it was in most cases the  rulers  of
\nthe  Indian States who ejected the merger and who on  behalf
\nof their State and their subjects participated by themselves
\nor through their representatives in the deliberations  which
\nbrought\t into existence the Constitution, and the legal\t and
\npolitical  unity  of India.  If, then, as a  result  of\t the
\nabsorption  there was a State succession,  its\tconsequences
\nhave to be judged by tests or principles similar to those by
\nwhich State succession is brought about by other means.\t  We
\ncannot, therefore, agree that the manner in which the Indian
\nStates ceased to exist or in which the Constitution and with
\nit  the complete political unification of the  territory  of
\nIndia was brought about negatives the applicability of rules
\nwhich\tgovern\tthe  enforceability  of\t rights\t against   a
\nsucceeding sovereign on State succession.
\nThe point next to be considered is whether the fact that the
\nsubjects  of  the  former Indian rulers\t became,  after\t the
\nConstitution, citizens and subjects of the Indian Union pre-
\ncludes\tthe Indian Government from refusing  recognition  to
\ntitles which such persons could have enforced against  their
\nprevious  rulers on the well-accepted principle that  “there
\ncan be no act of State against its own subjects.” The appli-
\ncation\tof this principle last mentioned of which Walker  v.
\nBaird(1) and Johnstone v. Pedlar(2) are classic examples, is
\nintimately  bound  up with the question as  to\tthe  precise
\nnature\tof the action taken by a succeeding State,  when  it
\nrefuses\t to accord recognition to the right of a former\t in-
\nhabitant  of  the  territory of\t an  earlier  sovereign\t and
\nenforce.able against the predecessor.\n<\/p>\n
If  the true position in law were that a positive action  is
\nnecessary to be taken by the succeeding sovereign before  it
\ninterferes  with the pre-existing rights of the subjects  of
\nthe former ruler and that the action thus taken is really  a
\ncontinuance  of the act of the State by which the  territory
\nof the former ruler became transferred to the new sovereign,
\nit  is\tpossible that the rule that there can be no  act  of
\nState by
\n(1) [1892] A.C. 491.\t    (2) [1921] 2 A.C. 262.\n<\/p>\n
496<\/span><\/p>\n
the  Government\t against its own subjects  might  have\tsome
\napplication.   But  if, on the other hand, the\ttrue  theory
\nwere,  that  on\t the extinction of the\tsovereignty  of\t the
\nprevious  ruler\t over the territory  ceded  or\tsurrendered,
\nthere  is an extinction ipso jure of the rights\t enforceable
\nagainst\t the  State and that it is really a new\t right\tthat
\nsprings\t into  existence on recognition\t by  the  succeeding
\nsovereign,  it\twould be manifest that the  refusal  of\t the
\nsucceeding  sovereign to recognise preexisting rights  could
\nin  no sense be an act of State.  No doubt, that refusal  is
\nin  the exercise of sovereign power but by such exercise  it
\nneither annihilates nor affects any enforceable right  which
\nits  subjects had against it.  We consider, therefore,\tthat
\nif the doctrine of Public International Law expounded by the
\nPrivy Council were held applicable to the termination of the
\nrights arising on the change of sovereignty in India, as the
\nlearned Judges in Virendra Singh’s case(1) did, the power of
\nthe Government of India as at present constituted to  refuse
\nto  recognise  titles  originating in  executive  grants  by
\nformer\tIndian rulers cannot be negatived by resort  to\t the
\nrule of law laid down in Walker v. Baird(2) and Johnstone v.
\nPedlar(3).\n<\/p>\n
The next proposition of law which underlies the decision  in
\nVirendra Singh’s case(1) is that the arbitrary and  absolute
\npowers\twhich the former Indian rulers possessed  to  revoke
\ngrants\tmade  by them did not survive the  change  in  sove-
\nreignty brought about by the Constitution, when as a  result
\nof the setting up of a democratic polity informed by justice
\nand  the  rule of law, the right to exercise  any  arbitrary
\npower was abandoned and was no longer available for revoking
\nthe grants made by the former rulers.  If the theory of Pub-
\nlic  International Law which was explained and given  effect
\nto by the decisions of the Privy Council rested on the\tdoc-
\ntrine that the powers of the succeeding sovereign to  recog-
\nnise  or not to recognise grants by the preceding  sovereign
\nor to repudiate them was based on the rights of the previous
\nruler  so  to revoke or repudiate, the argument\t would\thave
\nconsiderable  force.   The juristic basis –  of\t the  theory
\nunderlying  the\t Privy Council decisions is  that  with\t the
\nextinction of the previous sovereign the rights\t theretofore
\nexercisable
\n(1) [1955] 1 S.C.R. 415.      (2)  (1892] A.C. 491.
\n(3)  [1921] 2 A. C. 262.\n<\/p>\n
497<\/span><\/p>\n
by the subjects of that sovereign were likewise extinguished
\nand that without recognition which is really tantamount to a
\nfresh  grant by the new sovereign, no title  enforceable  in
\nthe  municipal courts of the succeeding sovereign came\tinto
\nbeing.\tIf this latter be the correct juristic approach, and
\nthat is what the decisions of the Privy Council lay down  as
\nwe  have shown by the extracts we have made of the  relevant
\npassages  in Bai Rajbai’s(1) and in Vajeysinghji’s(2)  case,
\nthen  it  matters not whether the earlier grant\t was  by  an
\nabsolute ruler who could revoke his grant or by a ruler of a
\ndifferent  type who could not or even if he could,  had\t re-
\nnounced his rights to revoke by unilateral executive action.
\nIn  either case, where the question at issue is whether\t the
\nright could be enforced against the succeeding sovereign  in
\nits  courts,  nothing turns on the power  of  the  preceding
\nruler to derogate from his grant; for it is not by virtue of
\nany  power  derived  from the previous\tsovereign  that\t the
\nsucceeding  sovereign claims the right not to recognise\t the
\nearlier\t rights\t or  grants but as an incident\tof  its\t own
\nsovereignty and sovereign power.  In the circumstances,\t the
\nexistence  of  the  arbitrary powers of\t the  native  Indian
\nrulers\tand  its  absence  in  the  Governments\t under\t the
\nConstitution  is not relevant, nor the fact that these\twere
\nnot  inherited by and did not devolve on the Governments  of
\nthe Union and the States functioning under the Constitution.
\nThe  last of the steps in the reasoning underlying  Virendra
\nSingh’s\t case(1) proceeds on the basis that the\t petitioners
\nhad  brought with them from their previous rulers  into\t the
\nIndian Union certain rights in the property granted to them,
\nenforceable  against the Government in regard to which\tthey
\nwere  entitled\tto the protection of Arts. 19 and  31.\tThis
\nquestion  has  to  be approached from  two  points  of\tview
\narising\t from the two stages through which the territory  of
\nthe  former  Indian rulers became part of the  territory  of
\nIndia under the Constitution.  The first stage is  concerned
\nwith  the  effect of the changes which took place  from\t the
\naccession of the States to the Dominion of India followed by
\nthe  merger  agreement executed by the rulers all  of  which
\nwere governed by the provisions of the Government of India
\n(1) 42 I.A. 229.    (2) 51 I.A. 357-\n<\/p>\n
(3) [1955] 1 S.C.R. 415.\n<\/p>\n
134-159 S.C-32
\n498<\/span>
\nAct, 1935 as it stood from time to time and the second stage
\nwith the complete ‘unionization’ of these territories so  as
\nto form part of an unified polity, the Union of India.
\nSo far as the first stage is concerned, there was  certainly
\na  transfer of sovereignty over the territory of the  former
\nIndian rulers to the Government of India for the purposes of
\nthe  exercise  by  the latter of  sovereignty  with  plenary
\npowers\tof  administration.  Sections 290A  and\t 290.B\twere
\nintroduced into the Government of India Act for enabling the
\nadministration by the Dominion Government of the territories
\nof  the acceding States which under s. 5 of that Act  became
\npart of the Dominion of India.\tAt this stage the powers  of
\nthe  Government\t of  India for\tthe  administration  of\t the
\nacceding   territories\twere  exercised\t under\t the   Extra
\nProvincial  Jurisdiction Act (Act XLVII of 1947) which\tused
\nthe phraseology ‘areas outside Provinces which were acquired
\nby  the\t Central  Government by\t treaty,  agreement,  grant,
\nusage,\tsufferance  or\tother  lawful  means’.\t It  may  be
\nmentioned  that\t under\torders\tmade  by  virtue  of  powers
\nconferred by the Extra Provincial Jurisdiction Act all\tlaws
\ntheretofore  in\t force prevailing in the  territories  which
\nwere  being  administered under that Act were  continued  in
\nforce.\t Later\tby  an order issued under  s.  290A  of\t the
\nGovernment  of India Act, known as the States  Merger  Order
\n1949, laws in operation in the merged States, were continued
\nuntil repealed or modified.  If in that situation the law as
\nto  acquired rights enforceable against the successor  State
\nas enunciated by the Privy Council applied, all grants which
\nrested solely on executive action could acquire vitality for
\nbeing enforced against the administration by the  Government
\nof  India  or  its  delegates  only  if\t those\trights\twere
\nrecognised;  for  there was here a true case of\t State\tsuc-
\ncession-transfer  of territory by one sovereign\t to  another
\nand without the complication arising from the fact that\t the
\nrulers\t or  the  people  of  the  various   Indian   States
\nparticipating  in the making of the Constitution  which\t the
\npeople\tof  India gave to themselves.  We have\talready\t ex-
\nplained\t that  if the view of the Privy Council\t as  to\t the
\neffect\tof  a change in sovereignty were  accepted,  it\t un-
\nmistakably points to their being no survival of any  vestige
\nof  rights  on\tthe extinction of  the\tsovereignty  of\t the
\nprevious
\n499<\/span>
\nruler  and to the emergence of any right only by the  action
\nexpress or implied of the new sovereign.  If this  principle
\nwere  applied, there would have been no rights\tof  property
\nvesting in the grantee which he could assert against the new
\nruler.\t No doubt, if the grantees were in  possession\tthey
\nwould  have  a\tright to  retain  their\t possession  against
\nprivate trespassers but that is not the question with  which
\nwe  are here concerned, for what is now under  consideration
\nis  the\t capacity  of these grantees  to  assert  rights  as
\nagainst the Government which is totally different from their
\nright to possession as to the rest of the world.  Digressing
\na little it may be pointed out that s. 299 of the Government
\nof  India  Act, 1935 as well as Arts. 19 and  31  which\t are
\nreferred  to  in this connection deal exclusively  with\t the
\ninference  with\t proprietary rights by the  State  and\thave
\nnothing\t to do with rights inter se between the grantee\t and
\nhis fellow subjects or citizens.\n<\/p>\n
If,  therefore, we are correct in our understanding  of\t the
\ndecisions  of the Privy Council that on a change  of  sover-
\nreignty\t no scintilla of right inhered in the grantee  quoad
\nhis  right to assert or enforce his rights under the  grants
\nagainst\t the rulers survived the change of sovereignty,\t the
\nguarantee  against deprivation of property contained  in  s.
\n299  of\t the  Government of India  Act,\t 1935,\tavailed\t him
\nnothing,  for  when  the  succeeding  sovereign\t refused  to
\nrecognise  the\trights obtained by him\tunder  the  previous
\nsovereign  its action deprived him of no right to  property;
\nbecause\t he  brought with him no rights\t from  the  previous
\nruler which he could assert against the new sovereign.
\nThe position, therefore, reduces itself to this: Just previ-
\nous to the Constitution the grantee had no right of property
\nenforceable against the State and in regard to which, there-
\nfore,  he could invoke the protection of Arts. 19 and 31  of
\nthe Constitution.  The coming into force of the Constitution
\ncould  not,  therefore, make any difference;  for  the\tCon-
\nstitution  does\t not  create rights  in\t property  but\tonly
\nprotected  rights which otherwise existed.  It is  necessary
\nto  add\t that  if the learned  fudges  in  Virendra  Singh’s
\ncase(1)\t were  right  in their understanding  of  the  Privy
\nCouncil decision to
\n (1) [1955] 1 S.C.R. 415.\n<\/p>\n
500<\/span><\/p>\n
mean that a grantee under the previous ruler had a  voidable
\ntitle  which  he  continued to possess and  enjoy  until  by
\naction\tof  the\t succeeding ruler the same  was\t revoked  or
\nrepudiated,  they  might also be right in  their  conclusion
\nthat   such  title  as\tthe  grantees  had  could   not\t  be
\nextinguished by the executive action of the Union or of\t the
\nState  Governments because of the guarantee of the right  to
\nproperty  contained in Arts. 19 and 31. But, if as  we\thave
\nshown,\tthe  decisions\tof the Privy  Council  do  not\tlend
\nsupport\t to such a view, the conclusion in Virendra  Singh’s
\ncase(1)\t as  regards this last proposition  also  cannot  be
\ncorrect.\n<\/p>\n
This takes us to the consideration of the question which was
\nraised by Mr. Purshottam Tricumdass submitting to us that we
\nshould discard the theory of Public International Law  which
\nunderlies  the decisions of the Privy Council. but  that  we
\nshould\taccept and give effect to what might be\t termed\t the
\nAmerican  view\tas formulated by Chief Justice\tMarshall  in
\nU.S.  v. Percheman(2) which was approved and applied in\t the
\nlater decisions of the American Supreme Court to which\talso
\nhe drew our attention.\tLearned Counsel submitted that\tthis
\nCourt  was not bound by the decisions of the  Privy  Council
\nand  was  free to adopt the more rational,  just  and  human
\ndoctrine which found expression in these American decisions.
\nIn this connection his thesis was that the doctrines evolved
\nby  the Privy Council were conditioned by Britain  being  an
\nImperialist  and  expansionist power at the date  when\tthey
\noriginated and were applied and that while these might\thave
\nbeen  suited  to the regime of a colonial power,  they\twere
\nwholly\tout of place in the set up of this country and\twith
\nthe type of Constitution under which it functions.
\nHaving\tconsidered this matter carefully we are\t clearly  of
\nthe opinion that there is no justification or reason to dis-
\ncard  the  British  view  as  regards  the  jurisdiction  of
\nmunicipal  courts  to  enforce\trights\tagainst\t  succeeding
\nsovereigns on a change of sovereignty.\tIn the first  place,
\nPercheman’s  case(2)  itself  came  before  the\t courts\t for
\nascertaining  the  proper construction of the  treaty  under
\nwhich Florida was surrendered to the United States by  Spain
\nunder  the  Florida treaty dated February 22, 1819,  on\t the
\nterms of which the
\n(1) [1955] 1 S.C.R. 415.\n<\/p>\n
(2) 32 U.S. 51 at pp. 86-87.\n<\/p>\n
501<\/span><\/p>\n
respondent contended that his title to the property  claimed
\nby  him had been recognised and confirmed.  The place  of  a
\ntreaty entered into by the United States and the  provisions
\ncontained  in  it, in the Constitutional Law of\t the  United
\nStates,\t we shall be referring to later, but that apart\t the
\nFlorida\t treaty was followed by an Act of Congress  of\t1828
\n,entitled “an Act supplementary to the several Acts  provid-
\ning  for  the  settlement of confirmation  of  private\tland
\nclaims\tin  Florida.”  Under the terms of this\tAct  of\t the
\nCongress,  ,Commissioners were set up to investigate  claims
\nby  private  individuals  to lands and in  cases  where\t the
\nvalidity   of  a  claim\t set  up  was  not  upheld  by\t the
\nCommissioner,  provision was made for resort to\t courts\t for
\nresolving  the dispute.\t There was, therefore, no scope\t for
\ninvoking  the  British rule of the lack of  jurisdiction  of
\nmunicipal  courts  to adjudicate on unrecognised  titles  to
\nproperty,  even\t if such a doctrine was applicable  and\t the
\nonly  point in controversy was as to the  interpretation  of
\nthe clauses of the treaty relative to the titles which\twere
\nrecognised because on any view of the law if the treaty\t and
\nthe  Act of Congress confirmed the respondent’s\t title,\t the
\nsame  was enforceable in the municipal courts of the  United
\nStates.\n<\/p>\n
Before passing on from this decision it is necessary to bear
\nin  mind the difference in constitutional law prevailing  in
\nthe  United  States and in India as regards  the  effect  of
\ntreaties  and the provisions contained therein.\t Art. 6\t cl.
\n(2) of the United States Constitution reads:\n<\/p>\n
\t      “6…………………..\n<\/p><\/blockquote>\n
\t      (2)   All\t treaties  made, or which  shall  be
\n\t      made,  under  the\t authority  of\tthe   United
\n\t      States, shall be the supreme law of the  land;
\n\t      and  the Judges in every State shall be  bound
\n\t      thereby, anything in the Constitution or\tlaws
\n\t      of any State to the contrary notwithstanding.”\n<\/p><\/blockquote>\n
Willoughby   explains*\tthe  object.  and  effect  of\tthis
\nprovision thus:\n<\/p>\n
\t      “….  the primary purpose of this  provision,
\n\t      (Art.  VI cl. (2) was to make indubitable\t the
\n\t      supremacy of treaties over State Statutory or
\n\t      *Constitution  of\t the United States  Vol.  1,\n<\/p><\/blockquote>\n
\t      548.
\n\t      502<\/span>
\n\t      constitutional  provisions…… it has,\tfrom
\n\t      the beginning been held that treaties, so\t far
\n\t      as  they\tare self-executory, operate  in\t the
\n\t      United\tStates,\t   by\tvirtue\t  of\tthis
\n\t      constitutional provision, to create  municipal
\n\t      law  which  the  courts  are  called  upon  to
\n\t      recognise and apply.”\n<\/p><\/blockquote>\n
In the United Kingdom and in India the position is  entirely
\ndifferent.   A treaty is, in British jurisprudence,  treated
\nmerely as a contract between two States and does not  become
\na  part of the law of the land unless by an express  Act  of
\nthe  Legislature.   A  treaty  does  not  confer  rights  or
\nobligations between the State and its subjects or as between
\nSubjects, such rights can be conferred only by an  enactment
\nof the Legislature.  As explained by Lord Atkin in Attorney-
\nGeneral of Canada v. Attorney General of Ontraio(1):\n<\/p>\n
\t      “Unlike some other countries the\tstipulations
\n\t      of  treaty  duly ratified do  not\t within\t the
\n\t      Empire, by virtue of the treaty alone have the
\n\t      force of law”\n<\/p><\/blockquote>\n
It  was in recognition of this constitutional position\tthat
\ns. 106 of the Government of India Act, 1935 was enacted. Its
\nterms  are  in\tsubstance  re-enacted in  Art.\t253  of\t the
\nConstitution which reads:\n<\/p>\n
\t      “253.    Notwithstanding\t anything   in\t the
\n\t      foregoing\t  provisions   of   this    Chapter,
\n\t      Parliament  has power to make any law for\t the
\n\t      whole  or any part of the territory  of  India
\n\t      for  implementing\t any  treaty’  agreement  or
\n\t      convention with any other country or countries
\n\t      or  any  decision made  at  any  international
\n\t      conference, association or other body.”\n<\/p><\/blockquote>\n
and  to\t reinforce this position we have Art. 363  by  which
\nmunicipal courts are deprived of jurisdiction to enforce any
\nrights arising from certain treaties.  It would be  apparent
\nthat in the context of the different constitutional position
\nregarding  treaties  in the two countries, the rule  of\t law
\nwhich  was enunciated by the American Supreme Court,  cannot
\nautomatically be applied here.\tFor in ultimate analysis the
\ncourt\tin  Percheman’s\t case  (2)  was\t giving\t effect\t  to
\nprovisions
\n(1) 1937 A. C. 326 at P. 347.  (2) 32 U.S. 51 at pp. 86-87.\n<\/p>\n
503<\/span><\/p>\n
of the treaty with Spain which was the law of the land,\t and
\nif  the treaty provisions were different, these again  would
\nhave  been  enforced  by the courts.   We  are\tmaking\tthis
\nobservation  not to minimise the importance of the  doctrine
\nof  Public  International  Law explained  by  Chief  Justice
\nMarshall, but to point out that the decision must be  under-
\nstood  in the setting of the provisions of the\ttreaty\twith
\nSpain and the articles of the American Constitution.
\nAs indicated earlier, we are not insensible to the  position
\nthat  apart  from  the place of treaties  in  American\tCon-
\nstitutional Law what Marshall C.J., expounded was a doctrine
\nof  Public  International Law which lie\t considered  it\t was
\nnecessary; just and proper for succeeding States to  observe
\nin  their  dealings  with the  rights  acquired\t by  private
\nindividuals  under  predecessor sovereigns.   We  shall\t now
\nproceed to deal with the question whether we should  discard
\nthe rule as enunciated in the decisions of the Privy Council
\nand adopt that which was formulated in Percheman’s case(1).
\nThere are several reasons why we are unable to accept C.  J.
\nMarshall’s exposition in Percheman’s case(1) as laying\tdown
\na law which has to be given effect to by municipal courts in
\nthis country.  In the first place, it could not be said that
\nthe broad terms in which Marshall C.J., stated the  doctrine
\nthat  every  private  rights  derived  from  a\t predecessor
\nsovereign  ought  to continue to be  enforceable  against  a
\nsuccessor  sovereign and that a change in sovereignty  makes
\nno difference to the enforceability of private rights, be it
\nagainst other individuals or the succeeding State, has\tbeen
\nin  that  absolute  form accepted as valid  by\tjurists\t and
\nwriters\t on Public International Law.  Even in\ttreaties  in
\nPublic\tInternational Law in which the most  extended  scope
\nhas  been afforded to the enforceability of  acquired-rights
\nagainst\t a successor State two limitations have always\tbeen
\nrecognised: (1) that the origin of the right should be\tbona
\nfide  and not one designed to injure the economic  interests
\nof the successor State, and (2) that the right should not be
\na political concessions
\nNext, jurists and even the Permanent Court of  International
\nJustice have drawn a marked distinction between
\n(1) 32 U.S.  1 at pp. 86-87.\n<\/p>\n
504<\/span><\/p>\n
that might be termed the theory of the law and the  enforce-
\nbility\tof these rights and in municipal courts.  C.C.\tHyde
\nin   is\t treatise  on  Public  International  Law(*)   after
\nreferring  of the decision in Percheman’s case(1) and  those
\nwhich allowed it adds:\n<\/p>\n
\t      “Acknowledgement\tof  the\t principle  that   a
\n\t      change of sovereignty does not in itself serve
\n\t      to  impair rights of private property  validly
\n\t      acquired in areas subjected to a change,\tdoes
\n\t      not, of course, touch the question whether the
\n\t      new  sovereign  is obliged  to  respect  those
\n\t      rights when vested in the nationals of foreign
\n\t      States, such as those of its predecessor.”\n<\/p><\/blockquote>\n
Similarly   George  Schwarzenberger  in\t his   International
\nLaw(**) after referring to a passage in the decision of\t the
\nPermanent  Court  of International Justice in  the  case  of
\nGerman Settlers in Poland reading:\n<\/p>\n
\t      “Private rights acquired under existing law do
\n\t      not cease on a change of sovereignty.  No\t one
\n\t      denies  that the German Civil Law,  both\tsub-
\n\t      stantive and adjective, has continued  without
\n\t      interruption  to operate in the  territory  in
\n\t      question.\t  It can hardly be maintained  that,
\n\t      although\tthe  law  survives,  private  rights
\n\t      acquired\tunder  it  have\t perished.   Such  a
\n\t      contention is based on no principle and  would
\n\t      be contrary to an almost universal opinion and
\n\t      practice”\n<\/p><\/blockquote>\n
adds  that though the Permanent Court of International\tJus-
\ntice  negatively stated that private rights  acquired  under
\nexisting  law do not cease on a change of  sovereignty,\t the
\nCourt did not expressly pronounce on the question whether in
\nthe  absence of legislation to the contrary on the  part  of
\nPoland,\t she  was  bound by International  Law\tto  consider
\nGerman\tCivil  Law as valid in the ceded  territories.\t The
\ndoctrine  of act of State evolved by English Courts  is\t one
\npurely\tof  municipal  law.   It  denies  to  such  a  Court
\njurisdiction to enquire into the consequences of acts  which
\nare inseparable from an extension of its sovereignty.\tThat
\ndoc-\n<\/p>\n
(*) Vol.  IP. 433.\n<\/p>\n
(**)Vol. 1 p. 83.\n<\/p>\n
(1) 32 U. S. 51 at Pp. 86-87.\n<\/p>\n
505<\/span><\/p>\n
trine was, however, not intended to deny any rule of  inter-
\nnational law.\n<\/p>\n
Next  we might examine the juristic concept  underlying\t the
\nAmerican  view, putting aside for the moment what one  might
\ncall  authority.   There has been at one time  a  school  of
\nthought among writers on Public International Law which\t has
\ndescribed  the process of State succession as if it  were  a
\ntransmission of sovereignty bringing in for this purpose the
\nanalogy\t of  an heir in private law clothing  the  successor
\nwith  the  totality of the rights and  obligations  qua\t all
\ninhabitants without exception or modification.\tThis  theory
\nhas now been discarded because of the realisation that there
\ncould  be  no analogy between individuals  and\tStates,\t nor
\ncould\tthe  theory  be\t sustained  in\tthe  face   of\t the
\ncircumstance  that it does not accord with  practice,  which
\nafter  all is one of the basic foundations of the  rules  of
\nPublic\tInternational  Law.  It is hardly necessary  to\t add
\nthat  ‘there  is -here no inconsistency with the  comity  of
\nnations.   Nor\tcould it be maintained that  the  theory  is
\njust,  because\tit  would force\t upon  the  successor  State
\nobligations  which might have owed their birth to  political
\nconsiderations\twhich  would  not  survive  the\t predecessor
\nState.\t Besides,  it  must not be  forgotten  that  when  a
\nsuccessor   State  exercises  its  sovereignty\t even\tover
\nterritory which has passed to it from a preceding ruler,  it
\ndoes not do so as a representative of or by delegation\tfrom
\nthe latter-as in the case of the heir in Private Law, but as
\na  sovereign of the -territory deriving authority  from\t its
\nown  constitution  and\tset  up.  It  is  true\tthat  Public
\nInternational  Law might lay on the successor  State  duties
\nwith respect to the acquired territory and to the rights  of
\nthe  inhabitants thereof but those must be  compatible\twith
\nits  undoubted sovereignty.  It is in recognition of such  a
\nposition  that\tsuccessor States give effect to\t laws  which
\nregulate   rights  inter  se  between  the  subjects   which
\ntheretofore   applied,\tsave  in  so  far  as\teither\t its
\nconstitution  or its legislation has made  other  provision.
\nWe  are,  however, here concerned with rights  possessed  by
\nindividuals  in\t the  predecessor’s  territory\t enforceable
\nagainst the previous rulers and even as regards these we are
\nconcerned with a very limited range of rights-rights arising
\nout of grants of immovable property or concessions of rights
\nin relation thereto and
\n506<\/span>
\nenforceable  against  the predecessor State.  We  made\tthis
\nReservation because in the Dalmia Dadri Cement case(1) which
\ndealt  with  the continued enforceability  of  a  concession
\nregarding the levy of income -tax, even Bose J. agreed\tthat
\nsuch  rights  did  not survive and in  a  separate  judgment
\nconfined  the operation of the principle that he  enunciated
\nin Virendra Singh’s case(2) to rights of immovable property.
\nIf the theory that rights and duties or rather the bundle of
\nthem  pass ipso jure from the predecessor to  the  successor
\nState  is  discarded and at the same time it  is  recognised
\nthat International Law and justice which underlies that body
\nof  law\t might impose some obligations which  the  successor
\nState  should respect, two questions arise: First  what\t are
\nthe  obligations which International Law might\timpose?\t and
\nsecondly, whether these obligations which are not the  crea-
\ntures\tof  municipal  law,  might  give  rise\t to   claims
\nenforceable in municipal courts.\n<\/p>\n
It  is\timpossible to lay down exact rules as to  the  inter
\nests  which  are  protected by a  consensus  of\t opinion  as
\nacquired  rights.   So\tmuch, at least,\t is  clear  that  to
\nreceive\t the  protection of International Law  the  interest
\nmust have been properly vested in the sense that it must not
\nhave been voidable at the instance of the predecessor  State
\nand  bona fide and legally acquired.  Neither the comity  of
\nnations, nor any rule of International Law can be invoked to
\nprevent\t a  sovereign State from safeguarding  its  national
\neconomy\t and taking steps to protect it from abuse.  On\t the
\none side the principles of acquired rights demands that\t the
\ninterest  of the private individual be not abrogated and  on
\nthe  other side the public interest of the  successor  State
\nhas  to\t be  considered.  It is this  conflict\tbetween\t the
\npublic\tand private aspects that hinders the laying down  of
\nhard and fast rules.\n<\/p>\n
As has been pointed out by O’Connell in his Treatise on\t the
\nLaw  of\t State\tSuccession,  the  problems  posed  by  State
\nsuccession  in\tInternational Law are notably  different  in
\ncharacter from those of municipal law though they arise at a
\ndifferent  plane, but there is no necessary reason  why\t the
\none  system  should  not draw on the  doctrine\tor  concepts
\nformulated and found to be adequate within the other
\n(1) [1959]   729.\n<\/p>\n
(2) [1955] 1 S.C.R. 415.\n<\/p>\n
507<\/span><\/p>\n
system.\t The principle of universal succession based on ana-
\nlogy  from  the\t civil\tlaw  was  essentially  juristic\t  in
\ncharacter,  but\t the analogy was wrong and the\tpractice  of
\nStates was not consonant with the theory.  The rejection  of
\nthis doctrine led to the assumption that solutions are to be
\nfound  on experience alone.  The choice of  the\t appropriate
\ntheory\tby  writers was’ coloured by  their  standpoint\t and
\ntheir legal (Experience.  In theory, therefore, we must have
\nregard\tboth to past experience and the necessities  of\t the
\npresent\t and  while  on\t the  one  hand\t not  being   unduly
\nrestrictive, ought not on the other become so doctrinaire as
\nto  deprive  the State of the option not to  recognise\teven
\nmala fide transactions.\n<\/p>\n
Looked at from this point of view the British practice\tthat
\nhas  prevailed\tin  this country has not  proved  in  actual
\npractice  to lead to injustice, but has proceeded on a\tjust
\nbalance\t between the acquired rights of the private  indivi-
\ndual  and  the\teconomic interests  of\tthe  community,\t and
\ntherefore there is nothing in it so out of tune with notions
\nof propriety or justice to call for its rejection.
\nIt  is undoubted that the British doctrine was part  of\t the
\njurisprudence and the constitutional practice that prevailed
\nin pre-Constitution India.  Most certainly it does not\tneed
\nto be stated that the British Parliament when it enacted the
\nGovernment  of India Act as the constitutional framework  by
\nwhich this country should be governed, could not have had in
\ncontemplation  any  other rule by which the  rights  of\t the
\ninhabitants newly brought into the political set up by other
\nterritories  becoming part of India.  With  this  historical
\nbackground  it\twould  not be a violent\t presumption  if  we
\nassume\tthat the framers of the Constitution should also  be
\ntaken  to have proceeded on the basis of the  acceptance  of
\nthis  doctrine and this state of the law, unless  one  found
\nsome  provision or indication in the Constitution  repugnant
\nto its continuance.  As already pointed out, the position of
\ntreaties  vis-a-vis municipal law was not changed.   On\t the
\nother hand, by Art. 363 an embargo was laid in express terms
\non  municipal  courts  giving effect to\t the  provisions  of
\ntreaties with rulers of Indian States.\tThis, in our opinion
\nis a clear indication that the Constitution-makers  intended
\nno
\n508<\/span>
\ndeparture from the Constitutional doctrine that was thereto-
\nfore accepted as law.  It would, of course, be different  if
\nthe  provisions of any treaty became embodied in  subsequent
\nlegislation; then they would be enforced as part of the\t law
\nof the land.\n<\/p>\n
It  is also not to be assumed that  the\t Constitution-makers
\nwere  oblivious of the need for continuity of the  law\twhen
\nthe Indian States were absorbed and a change in\t sovereignty
\ntook  place.  By Art. 372 of the Constitution all  the\tlaws
\nwhich were in force in these States just as in British India
\nwithout\t any  distinction  were continued  until  they\twere
\naltered\t or repealed by competent legislation.\tIt  is\tonly
\nnecessary  to  point out that in the  interval\tbetween\t the
\nmerger\tof  these States and the coming into  force  of\t the
\nConstitution,  there were other provisions to which we\thave
\nalready adverted which continued the laws which obtained  in
\nthese territories till Art. 372 could be availed of.   There
\nwas  thus no legal vacuum or hiatus created so far  as\tlaws
\nwere  concerned and it is only where the right sought to  be
\nenforced  was  created\tnot  by the  laws  of  the  previous
\nsovereign but merely as a result of an administrative  order
\nthat we have the problem to be solved in these appeals.\t  If
\nthe  definition of law in Art. 366(10) were as that in\tArt.
\n12  so\tas  to include even executive  orders  every  right,
\nhowever,  created  would  have\tbeen  continued.   But\t the
\nConstitution-makers  decided  otherwise\t and  preferred\t  to
\ncontinue  only\tlaws as\t distinguished\tfrom  administrative
\norders.\n<\/p>\n
Next  we have the circumstance that the doctrine  enunciated
\nin the decisions of the Privy Council have been accepted  as
\ncorrect\t and  thus applicable  equally\tin  postConstitution
\nIndia in a series of decisions of this Court commencing from
\nDalmia Dadri Cement Co.(1) and unless compelling reasons are
\nfound  for holding that all these were wrongly\tdecided,  it
\nwould  be neither proper or even open for us to depart\tfrom
\nthese precedents, and as explained earlier, there are none.
\nLastly,\t as  we have already noticed, even in  the  case  of
\nVirendra Singh(2), though the divergent views of the jurists
\non this question of Public International Law were set
\n(1)(1959] S.C.R. 729.\n<\/p>\n
(2) [1955] 1 S C.R. 415.\n<\/p>\n
509<\/span><\/p>\n
out the court did not express any decisive opinion in favour
\nof  accepting  the observations in  Percheman’s\t case(1)  as
\nproper\tto be applied by the municipal courts in India.\t  In
\nthe face of these circumstances we would not be justified in
\ndeparting from the decisions of the Privy Council which have
\nbeen  accepted and applied by this Court.   These  decisions
\nboth  of  the Privy Council as well as the earlier  ones  of
\nthis  Court were reviewed and the propositions laid down  in
\nthem  were examined and summarised by this Court  in  Promod
\nChandra\t Deb and Ors. v. The State of Orissa and Ors.<\/a>(2)  as
\nlaying down the following propositions:\n<\/p>\n
\t      “(1)  ‘Act  of State’ is the  taking  over  of
\n\t      sovereign\t power\tby  a State  in\t respect  of
\n\t      territory\t which was not till then a  part  of
\n\t      its  territory, either by conquest, treaty  or
\n\t      cession, or otherwise, and may be said to have
\n\t      taken place on a particular date, if there  is
\n\t      a proclamation or other public declaration  of
\n\t      such taking over.\n<\/p><\/blockquote>\n
\t      (2)   But\t the  taking  over  full   sovereign
\n\t      powers  may be spread over a number of  years,
\n\t      as a result of a historical process.
\n\t       (3)  Sovereign power, including the right  to
\n\t      legislate for that territory and to administer
\n\t      it,  may\tbe acquired  without  the  territory
\n\t      itself   merging\t in  the   new\t State,\t  as
\n\t      illustrated in the case of Dattatraya  Krishna
\n\t      Rao  Kane v. Secretary of State for  India  in
\n\t      Council [(1930) L.R. 57 I.A. 318].
\n\t      (4)   Where  the\tterritory has not  become  a
\n\t      part of the -State the necessary authority  to
\n\t      legislate in respect of that territory may  be
\n\t      obtained\tby  a legislation of the  nature  of
\n\t      Foreign Jurisdiction Act.\n<\/p><\/blockquote>\n
\t      (5)   As an act of State derives its authority
\n\t      not from a municipal law but from\t ultra-legal
\n\t      or supra-legal means, Municipal Courts have no
\n\t      power to examine the propriety or legality  of
\n\t      an act which comes within the ambit of ‘Act of
\n\t      State.’
\n\t      (1)  32 U.S. at pp. 86-87.       (2) [1962]  1
\n\t      Supp. S.C.R. 405.\n<\/p><\/blockquote>\n
\t      510<\/span><\/p>\n
\t      (6)   Whether  the Act of State has  reference
\n\t      to  public  rights or to private\trights,\t the
\n\t      result is the same, namely, that it is  beyond
\n\t      the   jurisdiction  of  Municipal\t Courts\t  to
\n\t      investigate  the\trights\tand  wrongs  of\t the
\n\t      transaction  and to pronounce upon  them\tand,
\n\t      that  therefore, such a Court  cannot  enforce
\n\t      its  decisions,  if any.\tIt may be  that\t the
\n\t      presumption  is that the pre-existing laws  of
\n\t      the  newly  acquired territory  continue,\t and
\n\t      that  according  to  ordinary  principles\t  of
\n\t      International  Law  private  property  of\t the
\n\t      citizens\tis respected by the  new  sovereign,
\n\t      but  Municipal Courts have no jurisdiction  to
\n\t      enforce such international obligations.
\n\t      (7)   Similarly,\tby virtue of the  treaty  by
\n\t      which  the new territory has been acquired  it
\n\t      may have been stipulated that the\t pre-cession
\n\t      rights of old inhabitants shall be  respected,
\n\t      but  such stipulations cannot be\tenforced  by
\n\t      individual   citizens  because  they  are\t  no
\n\t      parties to those stipulations.\n<\/p><\/blockquote>\n
\t      (8).  The\t Municipal Courts recognised by\t the
\n\t      new   sovereign\thave  the  power   and\t the
\n\t      jurisdiction to investigate and ascertain only
\n\t      such rights as the new sovereign has chosen to
\n\t      recognise\t  or  acknowledge  by\tlegislation,
\n\t      agreement or otherwise.\n<\/p><\/blockquote>\n
\t      (9)   Such an agreement or recognition may  be
\n\t      either express or may be implied from  circum-
\n\t      stances  and evidence appearing from the\tmode
\n\t      of  dealing  with\t those\trights\tby  the\t new
\n\t      sovereign.   Hence, the Municipal Courts\thave
\n\t      the  jurisdiction to find out whether the\t new
\n\t      sovereign has or has not recognised or acknow-
\n\t      ledged   the   rights  in\t  question,   either
\n\t      expressly or by implication, as aforesaid.
\n\t      (10)  In\tany controversy as to the  existence
\n\t      of   the\t right\tclaimed\t against   the\t new
\n\t      sovereign,  the  burden of proof lies  on\t the
\n\t      claimant\tto establish that the new  sovereign
\n\t      had  recognised or acknowledged the  right  in
\n\t      question.”\n<\/p><\/blockquote>\n
\t      511<\/span><\/p>\n
We consider this summary succinctly expressed the rule to be
\napplied\t in  this  country as  regards\tthe,  enforceability
\nagainst the Governments in India of private rights originat-
\ning  in\t executive or administrative orders  of\t the  former
\nIndian rulers.\n<\/p>\n
The  next matter to be considered is the correctness of\t the
\nview  expressed\t by  the High Court, that  even\t though\t the
\ntreaty be an Act of State, and the merger agreement executed
\nby  the ruler a document on which no rights  enforceable  in
\nmunicipal courts could be based, still cl. (7) of the letter
\nof Shri V. P. Menon dated October 1, 1948 could be  referred
\nto  and\t relied\t upon  for founding  an\t argument  that\t the
\nGovernment waived their right to repudiate the grant made by
\nthe previous ruler.  We consider that the submission of\t the
\nlearned\t Attorney-General  that the learned Judges  were  in
\nerror in this respect is well-founded.\tIf the treaty or its
\nprovisions  cannot be looked at to spell out any  right.  as
\nthe  learned  Judges themselves conceded. the use  to  which
\nthey have put the provisions of cl. (7)-that the  Government
\nwould not re-examine grants made earlier than April 1, 1948,
\nis virtually the same though called by another name.  We can
\nsee   no  sensible  distinction\t between  reliance  on\t the
\nprovisions of the treaty as pointing to a recognition by the
\nGovernment of rights claimed and reliance on it for the pur-
\npose of establishing that Government had waived their  right
\nnot  to recognise such rights.\tIn substance, they  are\t the
\nsame though the nomenclature employed is different.
\nIn  support of the reasoning on which this  distinction\t was
\naccepted  the  learned Judges have placed  reliance  on\t the
\napproach  to this question in Virendra Singh’s case(1).\t  We
\nhave discussed this matter fully in the earlier part of this
\njudgment  and  there is no need to repeat it.\tThe  learned
\nJudges have further referred to and relied on a decision  of
\nthis  Court in Bholanath v. The State of  Saurashtra<\/a>(2)\t and
\ncertain observations contained in it.  We do not agree\tthat
\nthe  observations in the decision, though  couched  somewhat
\nwidely\tcould properly be understood in the manner in  which
\nthe  learned Judges have done.\tThe question that  arose  in
\nthe case was whether the condition of service of a person
\n(1) [1955] 1 S.C.R. 415\t      (2) A. I. R. 1954 S. C. 680.\n<\/p>\n
512<\/span><\/p>\n
originally employed as an officer of one State continued  to
\ngovern\this services after that State became merged  in\t the
\nGovernment  of\tSaurashtra.   The condition  of\t service  in
\ncontroversy  was  as to the age at which an officer  had  to
\nretire\ton superannuation.  By an enactment of the ruler  of
\nWadhwan\t State\tthis was, in the case of officers  like\t the
\nappellant  before this Court, fixed at 60.  An order by\t the
\nGovernment  of Saurashtra retiring him after he reached\t the
\nage of 55 against his will, gave rise to the suit from which
\nthe proceedings before this Court arose.  There was  contro-
\nversy  in the Courts below as to whether the  law  embodying
\nthe  service  conditions  was  competently  enacted  by\t the
\nWadhwan\t State.\t  But this contention was not  persisted  in
\nthis court, and the court recorded a finding that the  terms
\nof  service of the appellant were regulated by a  law  which
\nwas  competently enacted and that the law was  continued  by
\nArt.  372  in the Saurashtra State.  On that  finding  there
\ncould  really be no defence to the appellant’s\tclaim.\t The
\ndecision in favour of the appellant was rested on the ground
\nthat  the law of the Wadhwan State was continued by  express
\nprovisions  contained, first, in statutes of the  Saurashtra
\nState  and, again, by Art. 372 of the Constitution when\t the
\nlatter merged in the Dominion of India.\t On this it followed
\nthat  without  a valid change in the law the rights  of\t the
\nappellant   could  not\tbe  restricted.\t  In  stating\tthis
\nposition, however, the following words were used:\n<\/p>\n
\t      “The  Covenant  (between\tthe  ruler  of\t the
\n\t      Wadhwan  State  and the State  of\t Saurashtra)
\n\t      could  be\t looked at to see  whether  the\t new
\n\t      sovereign\t had  waived his  rights  to  ignore
\n\t      rights  given  under the laws  of\t the  former
\n\t      sovereign.”\n<\/p><\/blockquote>\n
We do not understand this passage to mean that the  covenant
\nwhich  under  Art.  363 could itself not be  looked  at\t for
\nfounding  any right, could be used indirectly for  inferring
\nthat  rights  were recognised, without anything\t more.\t The
\ntrue  position appears to us to be that where the new  sove-
\nreign assumes jurisdiction and it does some Act and there is
\nambiguity as to whether the same amounts to a recognition of
\na  pre-existing\t right or not, the covenant and\t the  treaty
\nmight  be looked at in order to ascertain the intention\t and
\npurpose of that equivocal act, but beyond this the cove-\n<\/p>\n
 513<\/span><\/p>\n
nant and the treaty cannot by themselves be used either as a
\nrecognition pure and simple or, as the learned Judges of the
\nHigh Court have held, as waiver of a right to repudiate\t the
\npre-existing rights.  It is needless to point out that since
\nthe  enforceability  of the rights  against  the  succeeding
\nsovereign springs into existence only on recognition by\t the
\nsovereign, there is no question of a waiver of the right  to
\nrepudiate.  The expression ‘right to repudiate’ in this con-
\ntext  is  a  misnomer and there could be no  question  of  a
\nwaiver of such right.\n<\/p>\n
This,  however,\t does not conclude the matter, for  we\thave
\nstill  to  deal with the question whether the grant  by\t the
\nruler of the Sant State which was embodied in a ‘resolution’
\nof his was a “law” or was merely an executive or administra-
\ntive order.  Learned Counsel for the respondent submitted to
\nus  that the grant under the Tharav No. 371 dated March\t 12,
\n1948 was not a grant by executive power but was in truth and
\nsubstance  a  law  which was continued by Art.\t372  of\t the
\nConstitution  and which, therefore, could be undone only  by
\nlegislation  and not by any executive fiat as has been\tdone
\nin  the present case and in this connection relied  strongly
\non  the decisions of this Court in Madhaorao Phalke  v.\t The
\nState of Madhya Bharat<\/a>(1) and in Promod Chandra Deb and Ors.
\nv.  The\t State of Orissa and Ors.<\/a> (2).\tBoth  in  the  trial
\nCourt  as  well\t as  before the High  Court  the  cases\t had
\nproceeded  on the footing that the ruler of the\t Sant  State
\nwas  an absolute monarch with no constitutional\t limitations
\nupon  his authority, and it was not suggested that this\t was
\nincorrect.   He was the supreme legislature as well  as\t the
\nsupreme\t head  of the executive so that his  orders  however
\nissued would be effective and would govern and regulate\t the
\naffairs\t of the State including the rights of the  citizens;
\n(vide Ameer-un-nissa Begum v. Mahboob Begum<\/a>(3) and  Director
\nof Endowments, Government of Hyderabad v. A kram Ali(4)\t  We
\nshould, however, hasten to point out that though in the case
\nof  such  absolute  monarchs  the  distinction\tbetween\t the
\nadministrative\taction under their executive power and\tlaws
\npassed by them as the supreme legislature
\n(1) [1961] 1 S.C.R. 957.   (2) [1962] 1 Supp.  S.C.R. 405.
\n(3) A.I.R. 1955 S.C. 352.  (4) A.I.R. 1956 S.C. 60.
\n134–159 S. C.—33.\n<\/p>\n
514<\/span><\/p>\n
of  the\t State,\t possess  no  deference\t as  regards   their
\neffectiveness,\tstill the distinction between the two is  of
\nvital  importance  for\tthe  purpose  of  determining  their
\ncontinued  efficacy  after  the coming\tinto  force  of\t the
\nConstitution.\tUnder Art. 372 of the Constitution-“all\t the
\nlaw  in force in the territory of India\t immediately  before
\nthe  commencement  of this Constitution\t shall\tcontinue  in
\nforce  therein\tuntil altered or repealed or  amended  by  a
\ncompetent  Legislature or other competent  authority”.\t The
\nexpression “existing law” is defined in Art. 366(10):\n<\/p>\n
\t      “Existing law means any law, Ordinance,  Order
\n\t      bye-law,\trule  or regulation passed  or\tmade
\n\t      before  the commencement of this\tConstitution
\n\t      by any legislature, authority or person having
\n\t      power  to make such a law,  Ordinance,  Order,
\n\t      bye-law, rule or regulation.”\n<\/p><\/blockquote>\n
This  definition  would\t include  only\tlaws  passed  by   a
\ncompetent   authority  as  well\t as  rules,   bye-laws\t and
\nregulations  made  by virtue of statutory power.   It  would
\ntherefore  not\tinclude\t administrative\t orders\t which\t are
\ntraceable not to any law made by the Legislature but  derive
\ntheir force from executive authority and made either for the
\nconvenience  of\t the administration or for  the\t benefit  of
\nindividuals, though the power to make laws as well as  these
\norders was vested in the same authority-the absolute  ruler.
\nWhat survives the Constitution and is continued by Art.\t 372
\nare  those  laws  which\t could trace  their  origin  to\t the
\nexercise of legislative power.\n<\/p>\n
The  problem  next is to discover that which is\t “law”\tfrom
\nthat  which is merely an executive order and this is  by  no
\nmeans  an  easy one to solve.  In the case  of\tsome  States
\nwhere there are rules which prescribe particular forms which
\nthe  laws  have\t to  or generally  take\t or  where  laws  as
\ndistinguished  from  executive orders are issued  bearing  a
\ndefined nomenclature, there is not much difficulty.  But the
\ncases  which have come up before this Court have shown\tthat
\nthis is by no means the universal rule.\t In the case of\t the
\nSant State with which we are concerned it was not  suggested
\nthat there was any particular formality or process
\n515<\/span>
\nwhich had to be observed in the promulgation of laws or\t any
\nparticular form which laws had to take or took or that\tthey
\nwent by any particular nomenclature to distinguish them from
\nexecutive or administrative orders.  We have, therefore,  to
\nconsider  whether  from the nature of  ‘the  instrument\t its
\ncontents  and  its general effect-whether the  Tharav  dated
\nMarch 12, 1948 constitutes a law within Art. 366(10) and  is
\ntherefore  continued by Art. 372 or whether it is merely  an
\nexecutive  grant or administrative order which might  confer
\nrights\tbut which without recognition by the Union or  State
\nGovernment  cannot  be enforced in the municipal  courts  of
\nthis country.\n<\/p>\n
We  shall  therefore proceed to consider the  terms  of\t the
\nTharav and for this purpose it would be convenient to set it
\nout in full.\n<\/p>\n
It  is headed ‘Tharav Order’ by Maharana, Santrampur  State,
\ndated  March  12,  1948.  It was explained to  us  that\t the
\nexpression of ‘Tharav’ meant a resolution.  The text of this
\nresolution or order by the Maharana is as follows
\n\t      “The   Jivak,   Patavat\tInami,\t Chakariyat,
\n\t      Dharmada\tvillages  in Sant  State  are  being
\n\t      given  (granted) to Jagirdars and the  holders
\n\t      of the said villages are not given rights over
\n\t      forests.\t  Hence\t  after\t  considering\t the
\n\t      complaints  of certain Jagirs, they are  being
\n\t      given  full  rights  and\tauthority  over\t the
\n\t      forests  in the villages under their  vahivat.
\n\t      So,  they\t should manage the  vahivat  of\t the
\n\t      forest\taccording   to\t the   policy\t and
\n\t      administration  of the State.  Orders in\tthis
\n\t      regard to be issued.\n<\/p>\n
\t\t\t\t  Sd\/- in English
\n\t\t\t       Maharana, Santrampur State.”\n<\/p>\n
There  are a few matters to which it is necessary to  advert
\nin  this  document : The first of them is that it is  not  a
\ngrant  to  any\tindividual,  that is,  treating\t him  as  an
\nindividual  or\tas one of a number of individuals  or  to  a
\ngroup
\n516<\/span>
\ntreating  them\tmerely as separate individuals, but  to\t the
\nholders\t of  five  specified  tenures  in  the\tState-Jivak,
\nPatavat, Inami, Chakariyat and Dharmada villages.  Next,  it
\nstates that the rights in the forests of the villages of the
\nseveral\t kinds of tenure-holders are-being given to them  in
\nresponse  to  the  representations made\t in  regard  to\t the
\nvillages in the possession and enjoyment of the Jagirdars as
\nregards\t this  matter.\t Lastly,  the  tenure-holders\twere
\ndirected  to manage and administer the forest  according  to
\nthe  policy  and administration of the State.\tThe  learned
\nJudges of the High Court have treated the ‘Tharav’ as merely
\nan  administrative order treating it as if consisted  of  as
\nmany grants of forest rights to the tenure-holders as  there
\nwere  such holders and this was the view that  was  stressed
\nupon us strongly by the, learned Attorney-General.  We\tare,
\nhowever,  not  impressed  by  this  argument.\tWe  have  no
\nevidence  as  regards the creation of  the  several  tenures
\nreferred (to in the Tharav to base any conclusion as flowing
\nfrom  the original grant.  No doubt, there is on record\t the
\ntranslation  of the -rant of the village of Gothimada  dated
\n1867, but from this it does not follow that everyone of\t the
\ngrants comprised in the’ five tenures specified was of\tthis
\npattern,  We consider that the ‘Tharav’ is  more  consistent
\nwith its being a law effecting an alteration in the  tenures
\nof  the five classes of Jagirdars by expanding the range  of
\nthe  beneficial\t enjoyment to the forests lying\t within\t the
\nboundaries of the villages which had already been -ranted to
\nthem.\tIn  this  light,  the  ‘Tharav’\t would\tnot  be\t  an
\nadministrative\torder in any sense but would partake of\t the
\ncharacter of legislation by which an alteration was effected
\nin  the scope and content of the tenures referred  to.\tThis
\naspect\tis reinforced by the reference to the complaints  of
\nthe  tenure-holders  whose  grievance  apparently  was\tthat
\nthough villages had been granted to them for their enjoyment
\nunder  the  several  tenures, they were\t not  permitted\t any
\nrights\tin  the forests within their villages.\tIt  was\t not
\nthus  a case of an individual grant but the yielding by\t the
\nruler  to the claims of these large group of  Jagirdars\t who
\nrequested that their rights should be extended.\t Lastly, the
\nmanner\tof  the enjoyment was specified as having to  be  in
\naccordance with the policy and administration in the
\n517<\/span>
\nState.\t It is obvious that there must have been some  rules
\nwhich have the force of law as regards the administration of
\nthese  forests and the enjoyment by the Jagirdars  was\tmade
\nsubject to the observance of these laws.\n<\/p>\n
We,  therefore, consider that the ‘Tharav’ dated  March\t 12,
\n1948  satisfies\t the  requirement of  a\t “law”\twithin\tArt.
\n366(10),  and  in consequence, the executive orders  of\t the
\nGovernment  of\tBombay\tby which the forest  rights  of\t the
\nplaintiffs were sought to be denied were illegal and void.
\nThe result is that we agree with the learned Judges that the
\nplaintiffs  were entitled to succeed, though  for  different
\nreasons, and we direct that the appeals should be dismissed.
\nThe appellant will pay the costs of the respondents-one\t set
\nof hearing fees.\n<\/p>\n
SUBBA  RAO J.-I have had the advantage of going through\t the
\njudgment  of  my learned brother, Rajagopala Ayyangar  J.  I
\nagree with him that Ex. 192 is law and that it continued  in
\nforce after the making of the Constitution.  This conclusion
\nwould be enough to dispose of the appeals.  But,  Rajagopala
\nAyyangar  J.,  further expressed his disagreement  with\t the
\nunanimous view propounded by this Court in Virendra Singh v.
\nThe State of Uttar Pradesh<\/a>(1).\tAs I regret my inability  to
\nshare  his view, I shall state the reasons for my  agreement
\nwith the decision in Virendra Singh’s case.
\nAs  the question raised is common to all the appeals, it  is
\nenough\tif  I  take  up Civil Appeal No.  182  of  1963\t for
\nconsideration.\t The  facts  necessary\tto  appreciate\t the
\nalternative  contention may now be briefly stated.   In\t the
\nyear 1947, the then ruler of the Sant State made a grant  of
\nthe  village  Gotimada\tto  the\t predecessor-in-interest  of
\nThakor\tSardarsingh  Gajesing.\tOn August  15,\t1947,  India
\nobtained  independence.\t Under s. 7 of the  Indian  Indepen-
\ndence  Act, 1947, the suzerainty of the British\t Crown\tover
\nthe  Indian  States lapsed, with the result the\t Sant  State
\nbecame\ta  full\t sovereign State.  On March  12,  1948,\t the
\nMaharana
\n(1)  [1955] 1 S.C.R. 415.\n<\/p>\n
518<\/span><\/p>\n
of  Sant State issued an order conferring full\trights\tover
\nforests\t to  the  holders of villages in  the  State,  which
\nincluded  the  said Gotimada village.  On  March  19,  1948,
\nthere  was an agreement, described as the  Merger  Agreement
\nentered\t into  between the Maharana of Sant  State  and\t the
\nDominion Government of India where under the Maharana  ceded
\nto   the  Dominion  Government\tfull  exclusive\t  authority,
\njurisdiction and power for and in relation to the governance
\nof the Sant State and agreed to transfer the  administration
\nof  the\t Sant State to the Dominion Government on  June\t 10,
\n1948.\tIt was also agreed that as from June 10,  1948,\t the
\nDominion Government would be competent to exercise full\t and
\nexclusive  authority,  jurisdiction and powers\tfor  and  in
\nrelation to the Governance of the Sant State in such  manner
\nand  through such agency as it might think fit.\t  Under\t the
\nother articles of the said agreement certain personal rights
\nand  privileges of the Maharana were preserved.\t  After\t the
\nmerger, under s. 3 of the Extra Provincial Jurisdiction Act,
\n1947,  the Government of India delegated the  administration
\nof  the Sant State to the State of Bombay.  From October  1,
\n1949, under the States’ Merger (Governor’s Provinces)  Order
\n1949,  the  said State became part of the State\t of  Bombay;
\nthat  is to say, from June 10, 1948 to October 1,  1949\t the
\nBombay\tState administered the Sant State as a delegates  of
\nthe  Dominion  of  India, and thereafter  the  State  became
\nmerged with the State of Bombay.  The Sant State, therefore,
\nbecame\tpart of the Dominion of India on June 10,  1948\t and
\nthereafter  the citizens of that State became, the  citizens
\nof the Dominion of India.  On August 21, 1948 the respondent
\nentered into a contract with Thakor Sardarsing Gajesing\t for
\ncutting of the trees in the forest of village Gotimada.\t  On
\nOctober\t 1,  1948 i.e., 4 months after the merger  and\tmore
\nthan  a\t month after the said contract, Shri  V.  P.  Menon,
\nSecretary  to the Government of India, Ministry\t of  States,
\nwrote  a  letter  to the Maharana of  Sant  State  expressly
\ndeclaring  that\t no  order passed or  action  taken  by\t the
\nMaharana  before the date of making over the  administration
\nto  the Dominion Government would be questioned\t unless\t the
\norder was passed or action taken after the 1st day of  April
\n1948,  and  if considered by the Government of India  to  be
\npalpably unjust or unreasonable.  By that letter it was also
\nguaranteed that,
\n519<\/span>
\namong others, “the enjoyment of ownership” of jagirs, grants
\netc.,  existing\t on  April 1, 1948 would  be  respected.   A
\ncombined  reading of the paragraphs of this letter makes  it
\nclear  that  the  Dominion of India declared  in  clear\t and
\nunambiguous  terms that no grants made or orders  issued  by
\nthe Maharana before April 1, 1948 would be questioned by it.
\nIt  may\t be  mentioned that in the last\t paragraph  of\tthis
\nletter\tit was stated that the contents of the letter  would
\nbe regarded as part of the Merger Agreement entered into  by
\nthe Maharana with the Governor-General of India.  It may  be
\nrecalled  that\tthis  letter was written  months  after\t the
\nmerger\tand after the citizens of the extinct  State  became
\nthe citizens of the absorbing State.  The effect of the last
\nparagraph  of  the  said letter will be\t considered  in\t due
\ncourse.\n<\/p>\n
On   July   8,\t1949  the  Government  of  Bombay   sent   a
\ncommunication\tto  the\t Commissioner,\tNorthern   Division,
\nstating that the Government considered that the order passed
\nby  the ruler of Sant State on March 12,  1948\ttransferring
\nforest rights to all the Jagirdars of the Jagir villages was
\nmala fide and that it should be cancelled.  It was suggested
\nthat the Commissioner should do some other preliminary\tacts
\nbefore\ttaking\tfurther action in the matter.  It  would  be
\nseen from this communication that the order was not actually
\ncancelled,  but there was some correspondence in respect  of
\nthat  matter  and that it was not even communicated  to\t the
\njagirdars.   There  was obstruction by the  forest  officers
\nwhen  the contractor was cutting the trees, but\t after\tsome
\ncorrespondence\the  was permitted to cut the  trees,  on  an
\nundertaking  that  he  would abide by the  decision  of\t the
\nGovernment.   On February 6, 1963 the Government  of  Bombay
\npassed a resolution after receiving a report from the Forest
\nSettlement Officer specially appointed by it to\t investigate
\nthe  rights of jagirdars.  It was stated in  the  resolution
\n)that  the Tharav issued by the ruler of Sant State in\t1948
\nwas mala fide and, therefore, not binding on the Government.
\nThereafter,  it\t scrutinized  the  claims  of  jagirdars  to
\nforests\t in  74\t villages in the erstwhile  Sant  State\t and
\nrecognized their rights in some of the villages.  So far  as
\nGotimada  village.  is\tconcerned, it was  stated  that\t the
\nquestion  of  forest rights in the said\t village  was  still
\nunder the
\n520<\/span>
\nconsideration of the Government and necessary orders in that
\nbehalf would be issued in due course.  It is clear that till
\n1953 the Government did not refuse to recognize the title of
\nthe  Jagirdars to forests; indeed, in the case\tof  Gotimada
\nvillage no final order was made even on that date.  On these
\nfacts,\tthe question that arises is whether  the  respondent
\nwould  be entitled to a permanent injunction issued  by\t the
\nHigh  Court restraining the appellant from interfering\twith
\nhis right to cut trees in Gotimada village.
\nThe  argument of the learned Attorney-General, so far as  it
\nis  relevant to the question which I propose to\t deal  with,
\nruns  as follows : After the merger of the Sant\t State\twith
\nthe  Dominion  of  India the jagirdar had nO  title  to\t the
\nforests\t against the Dominion of India unless it  recognized
\nsuch  a\t right, and that, as in the instant  case  the\tsaid
\nGovernment  did\t not  recognize\t such a\t right,\t he  or\t his
\nassignees could not maintain any action against the State on
\nthe  basis  of his title to the said forests.\tHe  conceded
\nthat on the basis of the finding of the High Court that\t the
\nDominion  of  India  did  not repudiate\t the  title  of\t the
\njagirdar  to  the forests till after the  Constitution\tcame
\ninto force, the decision of this Court in Virendra Singh  v.
\nThe  State  of\tUttar Pradesh<\/a>(1) is against  him.   But\t he,
\ncontended  that it was not correctly decided and indeed\t its
\nbinding force was weakened by later decisions of this Court.
\nAs  the\t correctness  of the decision  in  Virendra  Singh’s
\ncase(1) is questioned, it is necessary to consider the scope
\nof  that  decision  in some detail  and\t also  to  ascertain
\nwhether\t later\tdecisions  of  this Court  had\tin  any\t way
\nweakened  its  authority.  The facts in that  case  were  as
\nfollows.  The  petitioners  in\tthat case  were\t granted  in
\nJanuary, 1948,Jagirs and Muafis by the Ruler of Sarila State
\nin one village and by the Ruler of Charkhari State in  three
\nvillages.   In March, 1948, a Union of 35 States,  including
\nthe  States  of Sarila and Charkhari. was  formed  into\t the
\nUnited\tStates\tof  Vindhya Pradesh.   The  Vindhya  Pradesh
\nGovernment  confirmed these grants in December,\t 1948,\twhen
\nits Revenue Officers interfered with them questioning  their
\nvalidity.   The\t integration of the States however  did\t not
\nwork well and the same 35 Rulers entered into an
\n(1)  [1955] 1 S.C.R. 415.\n<\/p>\n
521<\/span><\/p>\n
agreement  in December 1949, and dissolve the newly  created
\nState  as from January 1, 1950, each Ruler acceding  to\t the
\nGovernment  of\tIndia  all  authority  and  jurisdiction  in
\nrelation  to  the  Government  of  that\t State.\t  After\t the
\nConstitution  came  into  force,  the  Government  of  Uttar
\nPradesh in consultation with the Government of India revoked
\nthe grant of Jagirs and Muafis in four of the villages.\t  On
\nan application filed by the petitioners under Art. 32(2)  of
\nthe  Constitution,  this  Court issued a  writ\tagainst\t the
\nState.\tFrom the said facts it would be seen that the grants
\nwere  made to the petitioners before the merger, and it\t was
\nheld  that  the Government had no right to revoke  the\tsaid
\ngrants\tafter  the Constitution came into force.   Bose\t J.,
\nspeaking for the Court, elaborately considered the  doctrine
\nof  “Act  of  State” in the light of  English  and  American
\ndecisions  and the opinions of jurists of International\t Law
\nand came to the following conclusion :\n<\/p>\n
\t      “We  think  it is clear on a review  of  these
\n\t      authorities that whichever view be taken, that
\n\t      of  the Privy Council and the House of  Lords,
\n\t      or  that\tof  Chief  Justice  Marshall,  these
\n\t      petitioners,  who were in de facto  possession
\n\t      of  the  disputed lands, had  rights  in\tthem
\n\t      which  they  could have enforced\tup  to\t26th
\n\t      January, 1950, in the Dominion Courts  against
\n\t      Fill  persons except possibly the\t Rulers\t who
\n\t      granted  the  land  and  except  possibly\t the
\n\t      State.   We  do  not by any  means  intend  to
\n\t      suggest that they would not have enforced them
\n\t      against  the Rulers and the Dominion of  India
\n\t      as  well,\t but  for  reasons  which  we  shall
\n\t      presently\t disclose  it is  not  necessary  to
\n\t      enter into that particular controversy.  It is
\n\t      enough  for the purpose of this case  to\thold
\n\t      that  the petitioners had., at any  rate,\t the
\n\t      rights defined above.”\n<\/p><\/blockquote>\n
Pausing\t here  it will be noticed that this  Court  did\t not
\nexpress\t a  final  opinion  on\tthe  question  whether\t the
\npetitioners could have enforced their title to the  property
\nagainst the Rulers before the Constitution came into  force.
\nbut it had definitely held that the petitioners had title to
\nthe property against all
\n522<\/span>
\npersons\t except the Rulers.  On the basis of  that  finding,
\nBose   J.,   proceeded\tto  consider  the  impact   of\t the
\nConstitution  on  the  said  finding.\tThe  learned   Judge
\nobserved:\n<\/p>\n
\t      “But however that may be, there is no question
\n\t      of conquest or cession here.  The new Republic
\n\t      was.  born  on  26th January,  1950,  and\t all
\n\t      derived  their rights of citizenship from\t the
\n\t      same source, and from the same moment of time;
\n\t      so also, at. the same instant and for the same
\n\t      reason,  all territory within  its  boundaries
\n\t      became  the territory of India.  There is,  as
\n\t      it  were\tfrom the point of view\tof  the\t new
\n\t      State, Unity of Possession, Unity of Interest,
\n\t      Unity of Title and Unity of Time.”\n<\/p><\/blockquote>\n
Then the learned Judge proceeded to state:\n<\/p>\n
\t      “All  the citizens of India, whether  residing
\n\t      in  States or Provinces, will enjoy  the\tsame
\n\t      fundamental rights and the same legal remedies
\n\t      to enforce them.”\n<\/p><\/blockquote>\n
This decision struck a new and refreshing note.\t It  pleaded
\nfor  a departure from imperialistic traditions and to  adopt
\nthe  American traditions, which are in consonance  with\t the
\nrealities of the situation created by our Constitution.\t  It
\ngave new orientation to the doctrine of the act of State  to
\nreflect\t the modern liberal thought embodied in our  Consti-
\ntution.\t  It  held that citizens of a ceding  State  have  a
\ntitle  to  their property against all  except  possibly\t the
\nruler.\t Though it inclined to go further and hold that\t the
\nchange\tof  sovereignty\t does not affect the  title  of\t the
\ncitizens of the ceding State even against the new sovereign,
\nit did not think fit to decide that question finally, as  it
\nfound  ample  justification  to sustain\t the  title  of\t the
\npetitioners   therein  against\tthe  sovereign\t under\t our
\nConstitution.  It pointed out that the concept of ceding and
\nabsorbing States is foreign to our Constitution and that all
\nthe  people of India, to whichever part of the country\tthey
\nmight  have belonged, through their representatives,  framed
\nthe  Constitution  recognizing the fundamental rights  of  a
\ncitizen\t to hold property and not to be deprived of it\tsave
\nby authority of law.  In that view it
\n523<\/span>
\nheld  that  the title of the petitioners in  -,hat  case  to
\ntheir Property was protected by the Constitution.  This is a
\nunanimous and considered decision of five learned Judges  of
\nthis  Court.   I shall not obviously differ from  this\tview
\nunless there are compelling reasons to do so.  I find none.
\nI  shall  now  proceed to consider  whether  the  subsequent
\ndecisions  of this Court threw any doubt on the\t correctness
\nof  the decision in regard to the following two\t aspects  on
\nwhich  it  had given a firm decision: (1) The citizen  of  a
\nceding\tState does not lose his title to immovable  property
\nbut  continues\tto have a right thereto against\t all  except
\npossibly  the absorbing State; and (2) on the making of\t the
\nConstitution,  his  title thereto became  indefeasible\teven
\nagainst the absorbing State.\n<\/p>\n
Where  a  company  entered  into  an  agreement,  with\t the
\nerstwhile State of Jind whereunder it had to pay  income-tax
\nonly  at concessional rates, it was held in  Mills.   Dalmia
\nDadri  Cement Co. Ltd. v. The Commissioner of  Income-tax<\/a>(1)
\nthat,  after the said State merged with the Union of  India,
\nthe  latter was not bound by the contractual obligations  of
\nthe  ceding  State on the basis of the\tprinciple  that\t the
\ntreaty\tbetween the two sovereigns was an act of  State\t and
\nthe  clauses  of  that\ttreaty\twere  not  enforceable.\t  In
\nJagannath  Agarwala v. State of Orissa<\/a> (2) it was held\tthat
\nafter  Mayurbhanj  State  had merged with  the\tProvince  of
\nOrissa\tthe  two money claims of the appellant\tagainst\t the
\nMaharaja  of Mayurbhanj State were not\tenforceable  against
\nthe Orissa State on the ground that the Act of State did not
\ncome  to an end till the claims made by the  appellant\twere
\nrejected   and,\t  therefore,   municipal   courts   had\t  no
\njurisdiction in the matter.  Where the petitioners held Khor
\nPosh grants from the Rulers of Talcher, Bamra and  Kalahandi
\nunder  the  respective\tState laws it  was  held  in  Promod
\nChandra\t Deb  v.  The  State  of  Orissa<\/a>(3)  that  the\tlaws
\ncontinued  to have legal force after the merger of the\tsaid
\nStates with the Union of India.\t Where the Nawab of Junagadh
\nState  made grants of property before he fled the State,  it
\nwas held in
\n(1) [1959] S.C.R. 720.\t\t(2) [1962] 1, S.C.R. 205.\n<\/p>\n
\t      (3) [1962] Supp. (1) S.C.R. 405.\n<\/p>\n
524<\/span><\/p>\n
State  of Saurashtra v. Jamadar Mohamad\t Abdullah<\/a>(1)\tthat
\nthe  cancellation  of  the  said  grants  by  the   Regional
\nCommissioner,  who assumed charge of the  administration  of
\nthe  State  before the said State was  integrated  with\t the
\nUnited States of Saurashtra, was an act of State.
\nThe  question now raised did not arise for consideration  in
\nthose  cases.  This Court accepted the English\tdoctrine  of
\nAct of State and acted on the principle that till the  right
\nof an erstwhile citizen of a ceding State was recognized  by
\nthe absorbing State, he has no enforceable right against the
\nState.\t The  scope  and extent of the\ttitle  to  immovable
\nproperty of a citizen of a ceding State was not examined  in
\nthose decisions.  Nor the impact of the Constitution on such
\nrights\twas  considered\t therein.  In  M\/s.   Dalimia  Dadri
\nCement\tCo.  Ltd. v. The Commissioner of  Income-tax<\/a>(1)\t the
\nfollowing  observations are found at D. 741, which may\thave
\nsome bearing on the first aspect of the question:\n<\/p>\n
\t      “It  is also well-established that in the\t new
\n\t      set-up these residents do not carry with\tthem
\n\t      the rights which they possessed as subjects of
\n\t      the ex-sovereign, and that as subjects of\t the
\n\t      new  sovereign, they have only such rights  as
\n\t      are granted or recognized by him.”\n<\/p><\/blockquote>\n
This  observation is couched in wide terms.  But this  Court
\nwas not concerned in that case with the distinction  between
\npre-existing  title  of a citizen of a ceding State  to\t his
\nproperty  against all and that against the  State.   Indeed,
\nBose J., in his dissenting judgment, made it clear that they
\nwere  only  concerned  in that\tcase  with  the\t contractual
\nobligation of the erstwhile sovereign and that they were not
\ndealing\t with the question of the title of the\tcitizens  to
\nimmovable  property.  That the judgment had also nothing  to
\ndo  with the second aspect was made clear by  the  following
\nobservations  of  Venkatarama Aiyar J.,\t who  expressed\t the
\nmajority view, at p. 749:\n<\/p>\n
\t      “This  argument  assumes that  there  were  in
\n\t      existence\t at the date when  the\tConstitution
\n\t      came into
\n\t      (1) [1962] 3 S.C.R. 970.\n<\/p><\/blockquote>\n
\t      (2) [1959] S.C.R. 720.\n<\/p><\/blockquote>\n
\t      525<\/span><\/p>\n
\t      force, some rights in the petitioner which are
\n\t      capable  of being protected by Art.  19(1)(f).
\n\t      But  in the view which we have taken that\t the
\n\t      concessions  under cl. (23) of Ex.  A came  to
\n\t      an  end  when Ordinance No. 1 of S.  2005\t was
\n\t      promulgated, the petitioner had no rights sub-
\n\t      sisting  on the date of the  Constitution\t and
\n\t      therefore\t there\twas  nothing  on  which\t the
\n\t      guarantees  enacted  in Art. 19(1)  (f)  could
\n\t      operate.”\n<\/p><\/blockquote>\n
These observations indicate that this Court did not go\tback
\non  the decision in Virendra Singh’s case(1) indeed, it\t re-
\njected\tthe  argument based on that decision on\t the  ground
\nthat  the  appellant lost his rights if any,  under  a\tpre-
\nConstitutional\tvalid Ordinance.  In State of Saurashtra  v.
\nJamadar\t Mohamad  Abdulla<\/a>(2),  Mudholkar  J.,  speaking\t for
\nhimself\t and  for  Sarkar  J., expressed  the  view  on\t the
\nquestion  of impact of s. 299(1) of the Constitution Act  of
\n1935  on the title to immovable property of a citizen  of  a
\nceding State thus, at p. 1001:\n<\/p>\n
\t      “…… before the respondents could claim the
\n\t      benefit of s. 299(1) of the Constitution\tAct,
\n\t      1935,  they had to establish that on  November
\n\t      9, 1947, or thereafter they possessed  legally
\n\t      enforceable   rights  with  respect   to\t the
\n\t      properties in question as against the Dominion
\n\t      of  India.  They could establish this only  by
\n\t      showing  that their pre-existing rights,\tsuch
\n\t      as  they\twere recognized by the\tDominion  of
\n\t      India.  If they could not establish this fact,
\n\t      then it must be held that they did not possess
\n\t      any  legally  enforceable rights\tagainst\t the
\n\t      Dominion\tof India, and, therefore, s.  299(1)
\n\t      of  the  Constitution Act, 1935,\tavails\tthem
\n\t      nothing.\tAs already stated s. 299(1) did\t not
\n\t      enlarge  anyone’s right to property  but\tonly
\n\t      protected the one which a person already\thad.
\n\t      Any right to property which in its very nature
\n\t      is   not\tlegally\t enforceable   was   clearly
\n\t      incapable of being protected by that section.”
\n\t       (1) [1955] 1 S.C.R. 415, 433, 4. 37.
\n\t\t (2) (1962] 3 S.C.R. 970.\n<\/p><\/blockquote>\n
526<\/span><\/p>\n
The  same view was restated by the learned Judge  in  Promod
\nChandra\t Deb  v. The State of Orissa<\/a>(1).  It may  be  stated
\nthat  the said question did not arise for  consideration  in
\neither of those two decisions, for in the former the cancel-
\nlation of the order issued by the Ruler of the ceding  State
\nwas made before the merger and in the latter, the Court held
\nthat  the laws whereunder the grants were made continued  to
\nhave  legal force after the merger of the  concerned  States
\nwith the Dominion of India.  It may be pointed out that\t Das
\nJ.,  in\t the earlier decision and Sinha C.J., in  the  later
\ndecision,  who\tdelivered  the leading\tjudgments  in  those
\ncases,\thad specifically left open that question.   It\tmay,
\ntherefore,  be stated without contradiction that in none  of
\nthe  decisions of this Court that were given  subsequent  to
\nVirendra  Singh’s case(2) the correctness of  that  decision
\nwas  doubted.\tIndeed,\t in the latest\ttwo  decisions,\t the
\nprinciple  was sought to be extended to a situation  arising
\nunder  the Government of India Act. but the majority of\t the
\nlearned\t Judges\t left open the question, though two  of\t the
\nlearned\t Judges constituting the Bench expressed their\tview
\nagainst such an extension.  On the findings, I have  accept-
\ned,  the said question does not arise for  consideration  in
\nthis  case  and\t I  do not propose  to\texpress\t my  opinion
\nthereon.\n<\/p>\n
If that be the position. is there any justification for this
\nCourt  to refuse to follow the decision in Virendra  Singh’s
\ncase(1).   In  my  -View,  the said  decision  is  not\tonly
\ncorrect, but is also in accord with the progressive trend of
\nmodern international law.  After all, an act of State is  an
\narbitrary act not based on law, but on the modern version of
\n“might\tis  right”.  It is an act outside the law.   In\t the
\nprimitive society when a tribe conquered another tribe,\t the
\nproperties  of\tthe  vanquished were at\t the  mercy  of\t the
\nconqueror.  The successful army used to pillage, plunder and
\ncommit acts of arson and rape.\tWhen society progressed, the
\ndoctrine  of  Act of State was evolved. which really  was  a
\ncivilized  version  of\tthe primitive acts  of\tpillage\t and
\nplunder\t of the properties of the conquered tribe.  But\t the
\nfurther progress of civilization brought about by custom and
\nagreement factual recognition of pre-existing rights of\t the
\npeople\tof  the conquered State.  There were  two  different
\nlines of
\n(1) [1962] Supp.  1 S.C.R. 405.\n<\/p>\n
(2) [1955] 1 S.C.R. 415.\n<\/p>\n
527<\/span><\/p>\n
approach-one adopted by imperialistic nations and the  other
\nby  others who were not.  That divergence was  reflected  in
\nEnglish and American Courts.  All the jurists of internatio-
\nnal  law  recognise  the continuity of\ttitle  to  immovable
\nproperty of the erstwhile citizens of ceding State after the
\nsovereignty  changed  over  to the absorbing  State.   In  A
\nManual\tof International Law by Georg  Schwargenberger,\t 4th
\nEdn., Vol. 1, at p. 81 the learned author says:\n<\/p>\n
\t      “Private rights acquired under the law of\t the
\n\t      ceding State are not automatically affected by
\n\t      the  cession.  They must be respected  by\t the
\n\t      cessionary State.”\n<\/p><\/blockquote>\n
A  more\t emphatic  statement is found in The  Law  of  State
\nSuccession by O’Connell.  Under the heading “The Doctrine of
\nAcquired  Rights” the learned author points out, at pp.\t 78-
\n79:\n<\/p>\n
\t      “……..\t only sovereignty and its  incidents
\n\t      expired with the personality of a State.\t The
\n\t      relationships   of  the  inhabitants  one\t  to
\n\t      another,\tand  their rights of  property\twere
\n\t      recognized to remain undisturbed.”\n<\/p><\/blockquote>\n
He observes at p. 104:\n<\/p>\n
\t      The doctrine of acquired rights is perhaps one
\n\t      of  the few principles firmly  established  in
\n\t      the law of State succession, and the one which
\n\t      admits of least dispute.”\n<\/p><\/blockquote>\n
In Hyde’s International Law, second revised edition, Vol. 1,
\nat  p.\t433, the following extract from the  Sixth  Advisory
\nOpinion of September 10, 1923 of the Court of  International
\nJustice is quoted:\n<\/p>\n
\t      “Private rights acquired under existing law do
\n\t      not cease on a change of sovereignty.  No\t one
\n\t      denies  that the German Civil Law, both  subs-
\n\t      tantive  and adjective, has continued  without
\n\t      interruption  to operate in the  territory  in
\n\t      question.\t  It can hardly be maintained  that,
\n\t      although\tthe  law  survives,  private  rights
\n\t      acquired\tunder  it  have\t perished.   Such  a
\n\t      contention is based on no principle and  would
\n\t      be contrary to an almost universal opinion and
\n\t      practice……”\n<\/p><\/blockquote>\n
\t      528<\/span><\/p>\n
In  Oppenheim’s International Law, 8th edition, Vol.  1\t the
\n\t      same  legal  position is re-stated at  p.\t 571
\n\t      thus:\n<\/p>\n
\t      “It  must be specially mentioned that, as\t far
\n\t      as  the  law  of\tNations\t is  concerned,\t the
\n\t      subjugating State does not acquire the private
\n\t      property\tof  the inhabitants of\tthe  annexed
\n\t      territory.  Being now their sovereign, it\t may
\n\t      indeed  impose any burdens it pleases  on\t its
\n\t      new  subjects-it\tmay  even  confiscate  their
\n\t      private property, since a sovereign State\t can
\n\t      do  what\tit  likes  with\t its  subjects;\t but
\n\t      subjugation  itself does not by  International
\n\t      Law affect private property.”\n<\/p>\n
Starke\tin his book, An Introduction to\t International\tLaw,
\n5th edn., observes, at p. 274:\n<\/p>\n
\t      “Such  of\t these rights as  have\tcrystallised
\n\t      into   vested  or\t acquired  rights  must\t  be
\n\t      respected\t  by  the  successor   State,\tmore
\n\t      especially  where the former municipal law  of
\n\t      the   predecessor\t State\thas   continued\t  to
\n\t      operate,\tas though to guarantee the  sanctity
\n\t      of the rights.”\n<\/p><\/blockquote>\n
Much  to  the same effect the relevant statement  of  inter-
\nnational  law  is found in Briggs’ The Law of  Nations,\t 2nd
\nedn.  It may, therefore, be held that so far as title to im-
\nmovable property is concerned the doctrine of  international
\nlaw  has  become crystallised and thereunder the  change  of
\nsovereignty  does  not\taffect the title  of  the  erstwhile
\ncitizens of the ceding State to their property.
\nIn America the said principle of International Law has\tbeen
\naccepted  without  any qualification.\tChief  Justice\tJohn
\nMarshall  of the United States Supreme Court has  succinctly
\nstated\tthe  American  legal position in  United  States  v.
\nPercheman (1) thus:\n<\/p>\n
\t      “The  people  change their  allegiance;  their
\n\t      relation\t to  their  ancient   sovereign\t  is
\n\t      dissolved; but their relations to each  other,
\n\t      and   their   rights   of\t  property,   remain
\n\t      undisturbed.  If this be
\n\t      (1)   (1833) 32 U.S. 51. at 86, 87.\n<\/p><\/blockquote>\n
529<\/span><\/p>\n
\t      the modern rule even in cases of conquest, who
\n\t      can  doubt its application to the case  of  an
\n\t      amicable\t cession  of   territory?…….   A
\n\t      cession of territory is never understood to be
\n\t      a\t cession  of the property belonging  to\t its
\n\t      inhabitants.   The King cedes that only  which
\n\t      belonged\tto  him.  Lands\t he  had  previously
\n\t      granted  were not his to cede.  Neither  party
\n\t      could  so\t understand  the  cession.   Neither
\n\t      party  could consider itself as  attempting  a
\n\t      wrong   to  individuals,\tcondemned   by\t the
\n\t      practice\tof the whole civilised\tworld.\t The
\n\t      cession  of a territory by its name  from\t one
\n\t      sovereign\t to another. conveying the  compound
\n\t      idea  of\tsurrendering, at the same  time\t the
\n\t      lands  and the people who inhabit them,  would
\n\t      be  necessarily understood to pass  the  sove-
\n\t      reignty  only,  and  not\tto  interfere\twith
\n\t      private property.”\n<\/p><\/blockquote>\n
This  principle\t has  been  accepted  and  followed  by\t the
\nAmerican  Courts in -other decisions.  But it is  said\tthat
\nthe  view  of the American Courts is really based  upon\t the
\ncircumstance  that  international treaties are part  of\t the
\nsupreme law of the land.\n<\/p>\n
Article VI of the Constitution of the United States declares
\nthat  all treaties made, or which shall be made,  under\t the
\nauthority of the United States, shall be the supreme law  of
\nthe  land;  and\t the Judges in every State  shall  be  bound
\nthereby,  anything in the Constitution or laws of any  State
\nto the contrary notwithstanding.  Chief Justice Marshall  in
\nFoster v. Neilson(1) said:\n<\/p>\n
\t      “Our Constitution declares a treaty to be\t the
\n\t      law  of the land.\t It is, consequently, to  be
\n\t      regarded in courts of justice as equivalent to
\n\t      an   act\tof  the\t legislature,  whenever\t  it
\n\t      operates\tof  itself without the\taid  of\t any
\n\t      legislative provision.”\n<\/p><\/blockquote>\n
A  treaty in America may be deemed to be a law of the  land;
\nbut the American view is not solely based on treaties.
\n(1) (1829) 2 Pet. 253.\n<\/p>\n
134-159 S.C.-34.\n<\/p>\n
530<\/span><\/p>\n
In The American Insurance Co. and the Ocean Insurance Co. v.
\nBales of Cotton(1), Chief Justice Marshall clearly  recorded
\nthe view of the American Courts thus:\n<\/p>\n
\t      “On  such transfer of territory, it has  never
\n\t      been   held   that  the\trelations   of\t the
\n\t      inhabitants   with  each\tother  undergo\t any
\n\t      change.”\n<\/p><\/blockquote>\n
\t      Again  the  learned Chief Justice\t in  Charles
\n\t      Dehault  v.  The\tUnited\tStates(2)  expressly
\n\t      pointed  out the existence of the said  rights
\n\t      apart from any treaty.  He observed:
\n\t      “Independent  of\ttreaty\tstipulations,\tthis
\n\t      right would be held sacred.  The sovereign who
\n\t      acquires an inhabited territory acquires\tfull
\n\t      dominion\tover it; but this dominion is  never
\n\t      supposed\tto  divest  the\t vested\t rights\t  of
\n\t      individuals to property.”\n<\/p><\/blockquote>\n
Therefore,  the\t distinction sought to be made\tmay  perhaps
\nhave  some relevance, if in a particular treaty there. is  a
\nspecific  term\tthat the United States shall  recognize\t the
\nacquired rights of a citizen of a ceding State, but none  if
\nthe  treaty does not contain such a covenant.  The  American
\ndecisions, therefore, cannot be distinguished on this narrow
\nground;\t they have recognized the doctrine of  International
\nLaw  and  inter-woven  it in the  texture  of  the  American
\nmunicipal law.\n<\/p>\n
The Courts in England have developed the doctrine of act  of
\nState  which,  in  the\twords  of  Stephen,  means  “An\t act
\ninjurious  to the person or property of some person  who  is
\nnot at the time of that act a subject of Her Majesty;  which
\nact is done by a representative of Her Majesty’s  authority,
\nand  is\t either sanctioned or subsequently ratified  by\t Her
\nMajesty.” A treaty whereunder a sovereign territory is ceded
\nis  held  to be an act of State, for it is  not\t done  under
\ncolour\tof any title but in exercise of a  sovereign  power.
\nHas  the  law  of England denied the  doctrine\tof  acquired
\nrights so well-settled in International Law?
\n(1) (1828) 7 L.Ed. 511.\t       (2) (1835) 9 L.Ed. 117, 131.\n<\/p>\n
531<\/span><\/p>\n
In Vajesingji Joravarsingji v. Secretary of State for  India
\nin Council(1), the Judicial Committee summarized the law  on
\nthe subject thus:\n<\/p>\n
\t      “When  a territory is acquired by a  sovereign
\n\t      State  for  the first time that is an  act  of
\n\t      State.  Any  inhabitant of the  territory\t can
\n\t      make good in the Municipal Courts\t established
\n\t      by the new sovereign only such rights as\tthat
\n\t      sovereign\t   has,\t  through   his\t   officers,
\n\t      recognized.   Such rights as he had under\t the
\n\t      rule  of predecessors avail him nothing.\t Nay
\n\t      more,  even  if in a treaty of cession  it  is
\n\t      stipulated  that\tcertain\t inhabitants  should
\n\t      enjoy  certain  rights, that does not  give  a
\n\t      title to those inhabitants to enforce    these
\n\t      stipulations in the municipal Courts.    The
\n\t      right to enforce remains only with the   high
\n\t      contracting parties…………”.\n<\/p><\/blockquote>\n
The sentence in the said passage, namely, “such rights as he
\nhad  under  the\t rule of predecessors  avail  him  nothing”,
\ncannot\tbe, in the context in which it appears,\t interpreted
\nas  a denial of the doctrine of acquired rights\t evolved  by
\nInternational  ]Law, but it only refers to the\tquestion  of
\nenforceability\tof  such an acquired right  in\ta  municipal
\ncourt.\t The  same view has been expressed in  a  number  of
\nEnglish decision.  Therefore, the law in England is that the
\nmunicipal  courts cannot enforce the acquired rights of\t the
\nerstwhile citizens of the ceding State against the absorbing
\nState  unless the said State has recognized or\tacknowledged
\ntheir  title.  This Court accepted the English. doctrine  of
\nact of State in a series of decisions noticed by me earlier.
\nWhat does the word “recognize” signify?\t It means “to admit,
\nto  acknowledge, something existing before.” By\t recognition
\nthe  absorbing State does not create or confer a new  title,
\nbut only confirms a pre-existing one.  It follows that\ttill
\nthe  title Is recognized by the absorbing State, it  is\t not
\nbinding\t on  that State.  An exhaustive exposition  of\tthis
\nbranch\tof law is found in Promad Chandra Dab’s case(2).   I
\nam  bound by that decision.  O’Connell in The Law  of  State
\nSuccession
\n(1)  51\t I.A. 357. 360.\t       (2) [1962] Supp.\t (1)  S.C.R.\n<\/p>\n
405.
\n532<\/span>
\nbrings\tout  the impact of the doctrine of act of  State  on
\nthat  of acquired rights under International Law, at p.\t 88,
\nthus:\n<\/p>\n
\t       “The  doctrine  of  act of State\t is  one  of
\n\t      English municipal law.\tIt merely denies  an
\n\t      English Court jurisdiction     to inquire into
\n\t      the consequences of Acts of the\t  British
\n\t      Government  which\t are  inseparable  from\t the
\n\t      extension\t of its sovereignty.  The  court  is
\n\t      not entitled to ask if such acts are ‘just  or
\n\t      unjust,  politic or impolitic’ or\t what  legal
\n\t      rights  and duties have been carried  over  in
\n\t      the  change of sovereignty.  The\tdoctrine  is
\n\t      not  intended,  however,\tto deny\t a  rule  of
\n\t      International Law.”\n<\/p><\/blockquote>\n
In the words of the same author, the fact that a right\tcan-
\nnot be enforced does not mean that it does not exist.\tNon-
\nrecognition  by the absorbing State does not  divest  title,
\nbut  only  makes  it  unenforceable  against  the  State  in
\nmunicipal courts.\n<\/p>\n
The  result  of the discussion may be summarized  thus:\t the
\ndoctrine  of  acquired\trights, at any\trate  in  regard  to
\nimmovable property, has become crystallized in International
\nLaw.  Under the said law the title of a citizen of a  ceding
\nState  is preserved and not lost by cession.  The change  of
\nsovereignty does not affect his title.\tThe municipal law of
\ndifferent countries vary in the matter of its enforceability
\nagainst\t the  State.  As the title exists. it must  be\theld
\nthat even in those countries, which accepted the doctrine of
\nact  of State and the right of a sovereign to repudiate\t the
\ntitle,\tthe  title  is good against all\t except\t the  State.
\nBefore\tthe Constitution came into force the State  did\t not
\nrepudiate  the title.  When the Constitution of\t India\tcame
\ninto force the respondent and persons similarly situated who
\nhad  title  to immovable property in the Sant  State  had  a
\ntitle  to  the said property and were in  actual  possession
\nthereof.  They had title to the property except against\t the
\nState  and they had, at any rate, possessory title  therein.
\nThe Constitution in Art. 31(1) declares that no person shall
\nbe deprived of his property save by authority of law.\tThat
\nis, the Constitution recognized the title of the citizens of
\nthe  erstwhile\tState  of Sant,\t and  issued  an  injunction
\nagainst the
\n533<\/span>
\nsoveriegn  created  by it not to interfere with\t that  right
\nexcept in accordance with law.\tA recognition by the supreme
\nlaw of the land must be in a higher position than that of an
\nexecutive  authority  of  a  conquering\t State.\t  I   would,
\ntherefore, hold that the title to immovable property of\t the
\nrespondent  was\t recognized by the Constitution\t itself\t and
\ntherefore,  necessarily by the sovereign which is  bound  by
\nit.  1, therefore, respectfully hold that  Virendra  Singh’s
\ncase(1) has been correctly decided.\n<\/p>\n
Apart from the recognition of the title of the respondent by
\nthe  Constitution,  in this case the letter written  by\t the
\nGovernment   of\t India,\t dated\tOctober\t 1,  1948,   clearly
\nrecognized the title of persons situated in the position  of
\nthe  respondent\t to  their  properties.\t  But  the   learned
\nAttorneyGeneral\t contends that the letter shall be  regarded
\nas  part  of the merger agreement and  therefore  its  terms
\ncannot be relied upon for the purpose of recognition of\t the
\nrespondent’s title or of evidence of the Govemment’s  waiver
\nof  its\t right to repudiate the respondent’s title.   It  is
\ntrue  that  in the concluding portion of the  letter  it  is
\nstated\tthat the contents of the letter will be regarded  as
\npart  of the merger agreement.\tBut the merger\thad  already
\ntaken place on June 10. 1948 and this letter was written  on
\nOctober\t 1, 1948.  It does not appear from that letter\tthat
\nthe  Maharana  of  Sant State, who-ceased to  be  the  Ruler
\nexcept\tin name for certain privileges, was a party  to\t it.
\nThis letter, therefore, can at best be treated as one of the
\nacts  of the Government of India implementing the  terms  of
\nthe merger agreement.  It cannot, therefore, be said to be a
\npart of the merger agreement.  If it was not, by calling  it
\nso  it did not become one.  At the time the letter was\tsent
\nall the citizens of the erstwhile Sant State had become\t the
\ncitizens of India.  The letter contains a clear statement in
\nparagraphs  5 and 7 thereof that enjoyment of  ownership  of
\njagirs, grant etc. existing on April 1, 1948 were guaranteed
\nand  that  any\torder passed or action taken  by  the  Ruler
\nbefore\tthe  said date would not be questioned.\t This  is  a
\nclear  recognition of the property rights of the  respondent
\nand similar others.  It is necessary, therefore, to  express
\nmy opinion on the ques-\n<\/p>\n
(1)  [1955] 1 S.C.R. 415.\n<\/p>\n
534<\/span><\/p>\n
tion  whether,\teven if the said letter formed part  of\t the
\nmerger agreement, any recital therein can be relied upon  as
\nevidence  of  recognition  of  pre-existing  titles  by\t the
\nabsorbing  State  or  waiver  of  its  sovereign  right\t  to
\nrepudiate the said titles.\n<\/p>\n
For the aforesaid reasons I agree that the appeal should  be
\ndismissed with costs.\n<\/p>\n
For  the same reasons Civil Appeals No. 183 to 186  of\t1963
\nare also dismissed with costs.\n<\/p>\n
HIDAYATULLAH J.-These appeals by the State of Gujarat impugn
\na common judgment of the High Court of Gujarat dated January
\n24, 1961.  The respondents were plaintiffs in five suits for
\ndeclaration   of  rights  in  forests  and   for   permanent
\ninjunction  against  interference with those rights  by\t the
\nState.\tAll suits except one were dismissed by the Court  of
\nfirst  instance.  The District Judge on appeal\tordered\t the
\ndismissal of that suit also and dismissed the appeals of the
\nplaintiffs in the other suits.\tThe plaintiffs then appealed
\nto  the\t High Court and by the judgment\t under\tappeal,\t all
\nappeals were allowed and the suits were decreed.  The  State
\nGovernment has now appealed to this court by special leave.
\nThe  forests  in  respect  of  which  the  declaration\t and
\ninjunction  were sought are situated in the former State  of
\nSantrampur  (also  called Sant State).\t Santrampur  Was  an
\nIndian\tState  and  the\t Ruler\tattained  independence\t and
\nsovereignty  on August 15, 1947 on the ceasing of the  para-
\nmountcy of the British Crown.  The Ruler at first ceded\t his
\nsovereignty  on three subjects to the Government.  of  India
\nbut  on March 19, 1948, ceded the territory of the State  to
\nthe  Government\t of India by an agreement  which  came\tinto
\nforce from June 10, 1948.  The Central Government, by virtue
\nof powers vested in it by the Extra-Provincial\tJurisdiction
\nAct,  1947,  delegated\tits  functions\tto  the\t  Provincial
\nGovernment of Bombay and on June 2, 1948, the Administration
\nof the Indian States Order was passed and it was applied  to
\nSant State from June 10, 1948.\tOn July 28, 1948, the Indian
\nStates (Application of Laws) Order, 1948
\n535<\/span>
\nwas passed.  Certain enactments in force in the Province  of
\nBombay\twere  extended\tto Sant State  and  then  under\t the
\nStates’\t Merger\t (Governor’s Provinces)\t Order,\t 1949,\tSant
\nState became a part of the Province of Bombay from August 1,
\n1949.  On October 1, 1948, a letter of guarantee was written
\nto  the Ruler by Mr. V. P. Menon in which it was stated.  as
\nfollows:\n<\/p>\n
\t      “…….\n<\/p><\/blockquote>\n
\t      7.    No order passed or action taken by you
\n\t      before   the   date   of\t making\t  over\t the
\n\t      administration to the Dominion Government will
\n\t      be  questioned unless the order was passed  or
\n\t      action taken after the 1st day of April, 1948,
\n\t      and  it  is considered by\t the  Government  of
\n\t      India  to be palpably unjust or  unreasonable.
\n\t      The  decision  of the Government of  India  in
\n\t      this respect will be final.”\n<\/p><\/blockquote>\n
\t      It was Added that the letter would be read  as
\n\t      part of the original Merger agreement.
\n\t      A\t week before ceding the territories  of\t his
\n\t      State,  the  Ruler of Sant made  a  Tharao  or
\n\t      Thavan order as follows:\n<\/p><\/blockquote>\n
\t      “Order\n<\/p><\/blockquote>\n
\t       3.   Ta. Mu.  Outward Register No. 371.\t The
\n\t      Jivak,  Patayat, Inami,  Chakariyat,  Dharmada
\n\t      villages\t in  Sant  State  are  being   given
\n\t      (granted) to Jagirdars and the holders of\t the
\n\t      said  villages  are  not\tgiven  rights\tover
\n\t      forests.\t  Hence\t  after\t  considering\t the
\n\t      complaints  of certain Jagirs, they are  being
\n\t      given  full  rights  and\tauthority  over\t the
\n\t      forests  in the villages under their  vahivat.
\n\t      So.  they\t should manage the  vahivat  of\t the
\n\t      forest   according  to  the  policy  and\t ad-
\n\t      ministration  of\tthe State.  Orders  in\tthis
\n\t      regard to be issued.\n<\/p><\/blockquote>\n
\t\t\t      Sd. In English.\n<\/p><\/blockquote>\n
\t\t      Maharana, Sant State.”\n<\/p><\/blockquote>\n
536<\/span><\/p>\n
The former grants which were made in favour of the jagirdars
\nand holders of the villages have not been produced, but they
\nwere  probably\tlike the grant of  village  Gothimada  dated
\nDecember 1, 1857, which was to the following effect:\n<\/p>\n
\t      “……..\n<\/p><\/blockquote>\n
\t      You have to do the vahivat (management) of the
\n\t      land  situate within the permanent  boundaries
\n\t      of  the  outskirts  of the  villages  in\tfour
\n\t      directions.  This village has been granted for
\n\t      the appropriation and enjoyment of the  income
\n\t      thereto\texcept\tin  respect  of\t civil\t and
\n\t      criminal\tmatters.  So you must behave in\t the
\n\t      State in accordance with the custom and  usage
\n\t      and  practice of other Thakarati\tvillages  of
\n\t      the State.\n<\/p><\/blockquote>\n
\t      If  any  person of the village is\t ordered  in
\n\t      regard to any work or matter then you  should-
\n\t      not  in any way interfere therein but  produce
\n\t      the said person as per order.\n<\/p><\/blockquote>\n
\t      You  have to act and behave according  to\t the
\n\t      said clauses and should remain with  integrity
\n\t      and honesty and loyal to the State. Dated:  1-
\n\t      12.1867 A.D.S.Y. 1929 Magsar. Sudu 5.”\n<\/p><\/blockquote>\n
After  the Tharao was issued on March 12, 1948, some of\t the
\nThakores  executed  contracts in favour\t of  the  plaintiffs
\nbetween\t May 1948 and 1950.  The agreements which were\tmade
\nwith  the contractors are on the file of the  appeals.\t The
\nThakores  and  the  contractors then began  to\ttake  forest
\nproduce\t but they were stopped in April 1949.\tThe  present
\nfive  suits  were  then\t filed.\t  Four\tof  the\t suits\twere
\ninstituted  by the contractors and the fifth by one  of\t the
\nThakores in the capacity as inamdar.\n<\/p>\n
After  merger,\ta  question arose  whether  these  contracts
\nshould\tbe  approved  or  not.\t On  January  1949,  on\t the
\napplication  of one of the Thakores, an order was passed  by
\nthe Divisional Forests Officer.\t It was as follows:\n<\/p>\n
537<\/span><\/p>\n
.lm15
\n“Gothimada village of santrampur State.\t Application of\t the
\nowner  requesting to grant authorization to  the  Contractor
\nand states that he has no objection if the authorization  is
\nissued.\t  Is the authorization up to Lunawada  and  Signally
\nonly,  time-limit up to 31-3-1949.  No export outside to  be
\npermitted,  pending  receipt  of  orders  from\t Government.
\nWritten\t undertaking to be taken from the purchaser that  he
\nwill  abide by the decision and orders passed by  Government
\nand  then the authorization handed over.  Send copy to\tF.O.
\nLunawada.”\n<\/p>\n
Similar orders were passed in respect of other villages\t and
\nundertakings  were  taken  from the Thakores  and  the\tcon-
\ntractors.  A sample is quoted here-\n<\/p>\n
“UNDERTAKING:\n<\/p>\n
I, Thakore Sardarsingh Gajesingh hereby give an\t undertaking
\nto abide by the decision and or ers passed by the Government
\nof Bombay in respect of Gothimada forests, rights over which
\nwere conferred on me by Santrampur State Government on 12-3-
\n48 in their resolution No. G. 371 dated 12-3-48.\n<\/p>\n
\t      Authorization  Nos.  111, 112 of\t1948-49,  in
\n\t      respect of village in Santrampur State  issued
\n\t      by  the Divisional Forest Officer,  Integrated
\n\t      States Division, Devgad Baria in favour of Mr.
\n\t      Hatimbhai\t Badruddin is subject to  the  above
\n\t      undertaking.\n<\/p>\n
Dated 1-2-49.\n<\/p>\n
\t\t\t\tSd. in Gujarathi.”\n<\/p>\n
The Conservator of Forests, North Western Circle also issued
\na memorandum on January 18, 1949 stating:\n<\/p>\n
\t      “……..\n<\/p><\/blockquote>\n
\t      However, to safeguard the Government  interest
\n\t      written  undertaking should be taken from\t the
\n\t      jahagirdars, Inamdars of person or persons.\n<\/p><\/blockquote>\n
\t      538.
\n\t      concerned\t that he or they would abide by\t the
\n\t      decision\tor orders passed by the Bombay\tGov-
\n\t      ernment  in respect of such  private  forests,
\n\t      when the question of rights over such  private
\n\t      forests is finally settled.”\n<\/p><\/blockquote>\n
When the undertakings were furnished, passes were issued  to
\nthe  contractors.  In April 1949, however, the work  of\t all
\nthe contractors was stopped and on July 8, 1949,  Government
\nsent   a  communique  to  the  Collector  of  Panch   Mahals
\nrepudiating the Tharao of March 12, 1948.  In this letter it
\nwas stated as follows:\n<\/p>\n
\t      “Reference your memorandum No. ADM(P)  50-A11,
\n\t      dated  24th  May, 1949,  Government  considers
\n\t      that the order passed by the Ruler of the Sant
\n\t      State  under  his No. 371, dated\t12th  March,
\n\t      1948  transferring  forest rights to  all\t the
\n\t      jagirdars of the jagir village, are mala\tfide
\n\t      and  that they should be\tcancelled.   Before,
\n\t      however, taking further action in the  matter,
\n\t      please ascertain whether the possession of the
\n\t      forests in question is with Government or\t has
\n\t      gone  to the Jagirdars.  If the possession  is
\n\t      still  with Government please ask the  Officer
\n\t      of  the Forest Department to retain  the\tsame
\n\t      and to refuse to issue passes, etc. to private
\n\t      contractors and purchasers.\n<\/p><\/blockquote>\n
\t       By order of the Governor of Bombay.
\n\t      Sd\/-\t “.\n<\/p><\/blockquote>\n
It appears that this was not communicated to the contractors
\nof the Thakores.  On June 29, 1951, the Government of Bombay
\npassed\ta resolution that the Maharana’s order would not  be
\ngiven effect to.  Another resolution was passed on  February
\n6, 1953 as follows:\n<\/p>\n
\t      “On the eve of the merger of the Sant State in
\n\t      the  State of Bombay, the Ruler of that  State
\n\t      issued  Tharav  No. 371 on 12th  March,  1948,
\n\t      under  which Jiwai, Patawat,  Inami,  Chakriat
\n\t      and Dhannada Jagirdars and inamdars were given
\n\t      full forest rights over the villages in  their
\n\t      charge.  The Government
\n\t      539<\/span>
\n\t      of  Bombay, after considering the\t implication
\n\t      of the Tharav, decided that the order was mala
\n\t      fide  and cancelled it on 8th July, 1949\tvide
\n\t      Government  Letter,  Revenue  Department\t No.
\n\t      2103-M  49 dated the 8th July, 1949.   By\t the
\n\t      time these orders were issued, the tree growth
\n\t      in  the Jagiri forests concerned\twas  already
\n\t      sold  by some of the Jagirdars and  the  trees
\n\t      cut.   Further cutting of trees and export  of
\n\t      trees  cut was however stopped by\t the  Forest
\n\t      Department after receipt of the orders of\t 8th
\n\t      July,  1949.  On representation being made  to
\n\t      Government,   however,  agreed  to  allow\t  to
\n\t      release  the material felled from\t the  forest
\n\t      under   dispute,\tpending\t decision   on\t the
\n\t      settlement  of forest rights, subject  to\t the
\n\t      condition\t that the contractor  furnished\t two
\n\t      sureties\tsolvent for the material removed  or
\n\t      deposited\t with the Divisional Forest  Officer
\n\t      certain  amount  per wagon load  of  material.
\n\t      The  owner of the material was also  asked  to
\n\t      give a written undertaking that he would abide
\n\t      by the ultimate decision of Government.
\n\t       ………….\n<\/p><\/blockquote>\n
\t      5.    Government\t is,  however,\tpleased\t  to
\n\t      examine  individual  cases  of  Jagirdars\t and
\n\t      inamdars\tirrespective of the Tharav of  1948,
\n\t      on   the\tbasis  of  the\t Forest\t  Settlement
\n\t      Officer’s Report and other considerations.<\/p><\/blockquote>\n
\t      7.    The\t question  of forest rights  in\t the
\n\t      following\t   villages    is    still     under
\n\t      consideration  of\t Government  and   necessary
\n\t      orders  in that behalf will be issued  in\t due
\n\t      course:-\n<\/p><\/blockquote>\n
\t      (1)   Nanirath. (2) Gothimada. (3) Rathada.
\n\t       …………..”\n<\/p><\/blockquote>\n
Before\tthis the suits we are dealing with were filed.\t The
\ncontention  of the plaintiffs was that the Merger  agreement
\nof  March  1948\t was not an Act of  State,  because  it\t was
\npreceded by surrender by the Ruler of sovereignty in respect
\nof three subjects.  This contention was not accepted in\t the
\nHigh  Court and has not been raised here.  The next  conten-
\ntion was that the Tharao or order of March 12, 1948 was a
\n540<\/span>
\nlegislative act and as all the old laws of the State were to
\ncontinue  to  be in force except as modified by\t the  Indian
\nStates\t(Application of Laws) Order, 1948, the Tharao  could
\nbe  revoked by the appellant by Legislative  authority\tonly
\nand not by an executive act.  The High Court did not  accept
\nthis  contention, because according to the High\t Court,\t the
\nTharao\twas not a piece of legislation, but was a  -rant  by
\nthe  Ruler.   The  third contention  was  that\tthe  Central
\nGovernment  through  Mr. V. P. Menon has undertaken  not  to
\nquestion  any order or action taken before 1st April,  1948,
\nand that this created a bar to the repudiation of the  order
\nof  the Maharana dated March 12, 1948.\tThis contention\t was
\nnot  accepted by the High Court.  The High Court  held\tthat
\nthe letter formed a part of an Agreement which could only be
\nenforced by the High Contracting Parties, if at all, but not
\nby any other person, and in any event, municipal courts\t had
\nno  authority  to  enforce the agreement.   The\t High  Court
\nrelied\tupon Art. 363 of the Constitution and the  decisions
\nof this Court.\n<\/p>\n
The  High  Court, however, accepted the\t contention  of\t the
\nplaintiffs, that it was open to the succeeding sovereign  to
\nwaive  or relinquish its right to repudiate the\t actions  of
\nthe  previous Ruler and to acknowledge either  expressly  or
\nimpliedly  the\trights\tconferred on  the  subjects  of\t the
\nprevious  Ruler\t and that this had been done in\t this  case.
\nThey referred to the permission which had been given by\t the
\nofficers of the Forest Department to the plaintiffs in\tthis
\nsuit  to  cut  and carry away the timber  and  regarded\t the
\nletter\tof  Mr.\t V.  P. Menon  as  evidence  of\t waiver\t and
\nrelinquishment.\t  They\theld on the  authority\tof  Virendra
\nSingh  and  Others  v. The State  of  Uttar  Pradesh<\/a>(1)\t and
\nBholanath  J.  Thakar  v. State of Saurashtra<\/a>  (2)  and\t the
\njudgment of the Bombay High Court in Bhoirajji v. Saurashtra
\nState(3)  that the Government must, in these  circumstances,
\nbe held to have waived or relinquished its rights to enforce
\nthe Act of State against the plaintiffs.\n<\/p>\n
On behalf of the appellant, it is urged (a) that the Act  of
\nState continued till the resolutions were passed and there
\n(1) [1955] 1 S.C.R. 415.       (2) A.I.R. (1954) S.C. 680
\n(3)  61 Bom.  L.R. 20.\n<\/p>\n
541<\/span><\/p>\n
was no waiver or relinquishment in favour of the appellants,
\nand  (b) that the action of the subordinate officers of\t the
\nForest\tDepartment  did\t not bind Government  and  the\tres-
\npondents  cannot take advantage of the letter of Mr.  V.  P.
\nMenon.\tOn behalf of the respondents, in addition to meeting
\nthe  above arguments, it is contended that the Tharao was  a
\nlaw and could only be revoked by another law.  It is further
\nargued that after the Merger, s. 299(1) of the Government of
\nIndia  Act, 1935 which read “No person shall be deprived  of
\nhis  property  in British India save by\t authority  of\tlaw”
\nprotected   the\t respondents  and  this\t protection   became
\nabsolute  on January 26, 1950, by reason of Art. 31  of\t the
\nConstitution.\tAs the resolutions in question\twere  passed
\nafter the commencement of the Constitution, it is urged that
\nthey  cannot affect the rights of the respondents  who\tcame
\nunder the protection of Art. 31 of the Constitution.  It  is
\ncontended  that\t in  any case, the Act of  State  could\t not
\noperate\t against  the citizens of the State which  the\tres-
\npondents became on the Merger or on the inauguration of\t the
\nConstitution.\tIt  is\talso argued on behalf  of  the\tres-
\npondents  on the authority of a case of the Permanent  Court
\nof  International Justice and certain cases of\tthe  Supreme
\nCourt of the United States that the Act of State should\t not
\ninterfere with rights in property held from a former Ruler.
\nThe  appellant\tcontends  in reply that\t the  Act  of  State
\ncontinued,  because  the  contractors,\tand  jagirdars\twere
\npermitted  to  work the forests on their  furnishing  under-
\ntakings,  and it was only completed against them  in  April,
\n1949,  when they were asked to stop their work\teven  though
\nthe  actual order of Government deciding whether  to  accept
\nthe  Tharao or not was communicated to them in 1953.  It  is
\nargued\tthat  what  was\t of real  consequence  was  not\t the
\ndecision of the Government but the stoppage of the work.  It
\nis  also argued that s. 299(1) did not protect\tthe  respon-
\ndents  against\tthe Act of State and that as  there  was  no
\nState  succession on January 26, 1950, the original  Act  of
\nState  did not come to an end.\tIt is also pointed out\tthat
\nthis  Court has not accepted the rule of  International\t Law
\nreferred  to  in Virendra Singh’s case(1)  and\thas  instead
\nacted on
\n(1)  [1955] 1 S.C.R. 415.\n<\/p>\n
542<\/span><\/p>\n
the doctrine of Act of State as interpreted by the Courts in
\nEngland.   I shall deal with these points in brief,  because
\nmost  of them have been decided against the  respondents  in
\nthe  High  Court  on the basis of earlier  rulings  of\tthis
\nCourt.\n<\/p>\n
To begin with, this Court has interpreted the integration of
\nIndian States with the Dominion of India as an Act of  State
\nand has applied the law relating to an Act of State as\tlaid
\ndown  by  the  Privy  Council in  a  long  series  of  cases
\nbeginning  with Secretary of State in Council for  India  v.
\nKamachee  Boye Saheba(1) and ending with Secretary of  State
\nv. Sardar Rustam Khan and Other<\/a>(2).  The cases on this point
\nneed  not be cited.  Reference may be made to  M\/s.   Dalmia
\nDadri Cement Co. Ltd. v. Commissioner of Income-tax<\/a>(3),\t The
\nState  of Saurashtra v. Menon Haji Ismali Haji<\/a>(4),  jaganath
\nAgarwala  v. State of Orissa<\/a>(4) and State of  Saurashtra  v.
\nJamadar\t Mohamed Abdulla and Others<\/a>(5).\t In these  cases  of
\nthis Court, it has been laid down that the essence of an Act
\nof  State  is an arbitrary exercise of\tsovereign  power  on
\nprinciples which are paramount to the Municipal Law, against
\nan  alien and the exercise of the power is neither  intended
\nnor  purports  to be legally founded.  A  defence  that\t the
\ninjury is by an Act of State does not seek justification for
\nthe  Act  by  reference\t to  any  law,\tbut  questions\t the
\njurisdiction  of  the court to decide upon the\tlegality  or
\njustice\t of  the action.  The Act of State comes to  an\t end
\nonly  when the new sovereign recognises either expressly  or
\nimpliedly the rights of the aliens.  It does not come to  an
\nend  by\t any  action of subordinate  officers  who  have  no
\nauthority  to  bind the new  sovereign.\t  Till\trecognition,
\neither express or implied, is granted by the new  sovereign,
\nthe Act of State continues.\n<\/p>\n
If we apply these tests (rightly applied in the High Court),
\nwe  reach the result that the Government of Bombay  and\t the
\nCentral\t Government  could refuse to  recognise\t the  rights
\ncreated\t on  the  eve of the Merger by\tthe  Tharao  of\t the
\nMaharana  and to say that it was not acceptable to them\t and
\ntherefore not binding on them.\tSuch action may be
\n(1)  (1859) 13 Moore P.C. 22. (3)  [1959] S.C.R. 729
\n(5)  [1962] 1 S.C.R. 205. (2) (1941) 68 I.A. 109.
\n(4)  (1960] 1 S.C.R. 537. (6) [1962] 3 S.C.R. 970.\n<\/p>\n
543<\/span><\/p>\n
harsh or unfair; but the Municipal Courts cannot declare  it
\nto  be so, because unless the rights are irrevocably  recog-
\nnised  earlier the Municipal Courts have no jurisdiction  to
\npronounce  upon the legality or the justness of the  action.
\nIt  is for this reason that the respondents pleaded  in\t the
\nHigh Court that there was a waiver or relinquishment of\t the
\nAct  of\t State in their favour.\t Relinquishment\t and  waiver
\nwere again relied upon by the respondents before us and they
\nrefer  to  two circumstances from which an  inference  about
\nwaiver or relinquishment can be raised.\t The first is cl.  7
\nof the letter of Mr. V. P. Menon quoted above and the second
\nis  the conduct of the officers of the Forest Department  in
\nallowing  the  contractors  and the jagirdars  to  work\t the
\nforests in accordance with the Tharao of the Maharana.\t Cl.
\n7  of a similar letter of guarantee was considered  by\tthis
\nCourt  in  Maharaj  Umeg Singh and Others v.  The  State  of
\nBombay and Others<\/a>(1).  In that case also arguments were\t the
\nsame  as  here.\t  It was then  contended  that\tthe  Ruler’s
\nagreement with the Government ensured for the benefit of the
\nsubjects even if they were not parties to the agreement.  It
\nwas  then pointed out on behalf of the Government  that\t the
\nagreement,  if\tany, could not be sought to be\tenforced  by
\npersons who were not parties to it.  This Court observed:\n<\/p>\n
\t      “We do not feel called upon to pronounce\tupon
\n\t      the validity or otherwise of these contentions
\n\t      also   for   the\tsimple\t reason\t  that\t the
\n\t      petitioners would be out of Court either\tway.
\n\t      If  they\twere  deemed to be  parties  to\t the
\n\t      agreements of merger and letters of  guarantee
\n\t      they  would  be  faced with  the\tbar  to\t the
\n\t      maintainability of the petitions under Article
\n\t      363  of the Constitution which lays down\tthat
\n\t      neither the Supreme Court nor any other  Court
\n\t      shall have jurisdiction in any dispute arising
\n\t      out  of any provision of a treaty,  agreement,
\n\t      covenant,\t engagement, sanad or other  similar
\n\t      instrument which was entered into or  executed
\n\t      before the commencement of the Constitution by
\n\t      any Ruler of an Indian State and to which\t the
\n\t      Government of
\n\t      (1)   [1955] 2 S..C.R. 164.\n<\/p><\/blockquote>\n
544<\/span><\/p>\n
\t      the  Dominion of India…… was a party.\t  If
\n\t      on the other hand they were deemed not to have
\n\t      been parties to the same they would not be the
\n\t      contracting parties and would certainly not be
\n\t      able to enforce these obligations.”\n<\/p><\/blockquote>\n
It would, therefore, appear that the present respondents who
\nwere  not parties to the Merger agreement or to\t the  letter
\nwritten by Mr. Menon which was made expressly a part of\t the
\nAgreement  cannot  take\t advantage of cl. 7.  If  they\twere
\nparties, Art. 363 would bar such a plea.\n<\/p>\n
It  is next contended that the Act of State had come  to  an
\nend  after the Government of India Act, 1935 was applied  to
\nthe State and the State became a part of the territories  of
\nthe Government of India.  This argument was raised to  claim
\nthe  benefit  of s. 299 (1) of the Government of  India\t Act
\n1935.\t  The  interference  with  the\trights\tin   forests
\nconferred by   the  Tharao  and\t the  agreements  with\t the
\ncontractors    based  on  the Tharao took, place  in  April,
\n1949.  It was contended that on June 10, 1948, the  subjects
\nof Sant State became Indian citizens and they were protected
\nby s. 299(1).  The Officers of the Forest Department did not
\nunconditionally\t allow the forests to be worked.  They\tmade
\nit clear to the contractors and the jagirdars that what they
\nwere  doing was not final and that Government was  going  to
\ndecide about the Tharao and the contracts later.  No  doubt,
\nthe  forests were allowed to be worked, but  an\t undertaking
\nwas obtained from each contractor and jagirdar.\t This showed
\nthat  the officers of the Forest Department did not  attempt
\nto bind the Government, even if they could.  It is true that
\nthe  -order of Government to stop work was not\tcommunicated
\nto the contractors and the jagirdars but the working of\t the
\nforests was as a matter of fact stooped much earlier and the
\nlearned\t Attorney-General is right in pointing out  that  it
\nwas  all  that mattered.  This action of  the  officers\t was
\nlater  approved by Government when it decided that it  would
\nnot  allow  any\t rights\t to flow from  the  Tharao  and\t the
\ncontracts.  In other words, while Government was considering
\nthe   matter,\tthe  officers  of  the\t Forest\t  Department
\ntentatively  allowed  the  forests to be worked\t but  in  no
\nmanner to bring the Act of State to art end.  The Act
\n545<\/span>
\nof State could only come to an end if Government  recognised
\nthe rights flowing from the Tharao.  That, Government  never
\ndid.   There  was thus no recognition of the Tharao  or\t the
\nrights\tflowing from it at any time.  It was pointed out  by
\nthis  Court in Aggarwala’s case(1) that Government may\ttake
\ntime to consider and delay does not militate against the Act
\nof State.  In that case also the decision of Government\t was
\ntaken after the coming into force of the Constitution.\tThis
\nCourt pointed out, agreeing with Vaje Singhji jorawar  Singh
\nv.  Secretary  of  State for  India(2)\tthat  enquiries\t may
\ncontinue  for some time without any inference of  waiver  or
\nrelinquishment.\t No doubt, in Bholanath Thaker’s case(3) and
\nin  Virendra  Singh’s case(4) waiver or\t relinquishment\t was
\ninferred from the conduct of Government.  Such an  inference
\nmay  legitimately be raised where Government,  after  having
\naccepted   the\trights,\t attempts  to  go  back\t upon\tsuch
\nacceptance.   There  must, however, be a  clear\t indication,
\neither expressly or by implication, that Government has,  in
\nfact,  accepted\t the  rights.\tIn  the\t present  case,\t the
\nsubordinate  officers of the Forest Department\tallowed\t the
\nforests to be worked, making it quite clear that  Government
\nwas  considering the matter and took undertakings  from\t the
\nrespondents  that  they\t would\tabide  by  the\tdecision  of
\nGovernment.  Government passed an order declining to  accept
\nthe Tharao.  The order so passed was not communicated to the
\nrespondents  but  later it was reiterated  as  a  resolution
\nwhich was communicated.\n<\/p>\n
To avoid this result, there are two arguments upon which the
\nrespondents rely and they are the main contentions in  these
\nappeals.   The respondents seek support for the judgment  by
\nchallenging  the  decision  on some of\tthe  points  decided
\nagainst them.  The first is that the Tharao was a law  which
\ncould only be rescinded by another law.\t In this connection,
\nthe  respondents  rely upon the observations  made  by\tthis
\nCourt in Madhaorao Phalke v. The State of Madhya  Bharat<\/a>(5).
\nThese observations were based upon
\n(1)  [1962] 1 S.C.R. 205. (2) (1924) L. R. 51 I. A. 357.
\n(3)  A I.R. (1954) S.C. 680.  (4)  [1955] 1 S.C.R. 415.
\n(5) [1961] 1 S.C.R. 957. 964.\n<\/p>\n
134-159 SC-35.\n<\/p>\n
546<\/span><\/p>\n
the  earlier  case  in Ameer-un-nissa Begum  and  Others  v.
\nMehboob Begum and Others<\/a>(1).  In these cases, it was pointed
\nout that the distinction between legislative, executive\t and
\njudicial  acts\tof  an absolute Ruler (such  as\t the  Indian
\nRulers\twere)  was  apt\t to disappear  when  the  source  of
\nauthority was the sovereign.  These observations are  sought
\nto  be\tapplied here.  In the past also\t these\tobservations
\nwere invoked on occasion.  In so far as the subjects of\t the
\nRuler were concerned, they were bound to obey not only\tlaws
\nbut any orders of the Ruler, whether executive or  judicial.
\nFor  them  they did not exist any  difference  because\teach
\nemanation  of  the  will of  the  sovereign  required  equal
\nobedience  from them.  But it does not mean that  the  Ruler
\nacted  legislatively  all the time and never  judicially  or
\nexecutively.  If this was the meaning of the observations of
\nthis Court, then in Phalke’s case(2) it would not have\tbeen
\nnecessary to insist that in determining whether there was  a
\nlaw  which  bound the succeeding sovereign,  the  character.
\ncontent\t  and\tpurpose\t of  the  declared  will   must\t  be
\nindependently considered.  In Ameer-un-nissa’s case,(3) this
\nCourt  was concerned.  With a Firman of the Nizam  and\tthat
\nwas  one of the accepted modes of making laws  in  Hyderabad
\nState.\t In Phake’s case(2), this Court was  concerned\twith
\nKalambandis which were held by this Court to be laws binding
\nupon  the subsequent Government unless repealed or  replaced
\nby  other  law.\t  The Kalambandis were\tso  regarded  partly
\nbecause the Maharana had himself laid down that\t Kalambandis
\nissued by him were to be regarded as law, and partly because
\nthe  Kalambandis  created  a tenure which  carried  with  it
\npensions.   The\t pensions  were grants\tbut  the  manner  of
\nenjoyment  of  the pensions was determined by the  rules  of
\ntenure\tprovided  in  the  Kalambandis\talso  bearing\tupon
\nsuccession  and devolution.  These cases were  distinguished
\nin more recent cases when the observations were sought to be
\nextended  to others which were clearly not  legislative\t and
\nreference  may be made to Maharaj shree Umaid Mills Ltd.  v.
\nUnion  of India and Others<\/a>(3) and The Bengal  Nagpur  Cotton
\nLtd. v. The Board of Revenue, Madhya Pradesh and  Others<\/a>(4).
\nIt was pointed
\n(1) A.T.R. 1955 S.C. 352.      (2) [1961] 1 S.C.R. 957, 964.
\n(3) A.T.R. 1963 S.C. 953.    (4) A.I.R. 1964 S.C. 888.\n<\/p>\n
547<\/span><\/p>\n
out  in these two cases that the observations  in  Ameer-un-
\nnissa’s\t case(1)  Phalke’s  case(2) could  not\tbe  read  as
\nindicating that everything that the Maharaja said or ordered
\nwas a law.  In the latter case, this Court pointed out\tthat
\na proper law would be one which was made in accordance\twith
\nthe  traditional mode of making laws in the territory or  in
\naccordance  with some procedure which was expressly  devised
\nfor  tile  occasion.   It was pointed out that\tlaw  is\t the
\nresult\tof  a  legislative process and the  result  must  be
\nintended  to  bind  as a rule of conduct; it  must  not\t for
\nexample be a contract or a grant or a gift etc.
\nViewed from this angle, it is quite obvious that the  Tharao
\nwas  not  a  law.   It was a grant  made  to  the  jagirdars
\nmentioned  in the Tharao.  It is contended that it  is\tmade
\napplicable  to persons belonging to five  different  tenures
\nand  that  the ‘management’ of the forests was\tto  be\tdone
\naccording to the policy and administration of the State.  No
\ndoubt, the Tharao is applicable to a large number of persons
\nenjoying  different  tenures but it is stated  therein\tthat
\norders\twere to be issued individually to all of them.\t The
\nTharao\twas  issued only 8 days before the  Merger.   It  is
\nsurprising  that the Maharaja thought of the  complaints  of
\nthe  grantees on the eve of the Merger.\t The fact  that\t the
\nMaharana’s  Tharao was passed to benefit a large  number  of
\npersons\t en bloc does not make it any the more a law  if  it
\ndid  not  possess  any\tof  the\t indicate  of  a  law.\t The
\nrespondents would not admit that if it had been addressed to
\nindividuals, it would have changed its character from a\t law
\nto a grant.  This fact makes no difference to its character.
\ncontent\t and purpose.  Further, the original grant of  which
\nthe  Tharao became a part was also a grant.  One such  grant
\nhas  been quoted above.\t The word “Vahivat” does  show\tthat
\nthe  grant was for management but in this context, it  means
\nmore than management.  It was customary to use this word  in
\nconferring  rights which were liable to be  resumed.   These
\ngrants did give rights to the grantees but did not lay\tdown
\nany  rule  of conduct.\tIt may be pointed out that  in\tUmeg
\nSingh’s case(3) it was contended that cl. 5 of the letter of
\n(1) A.I.R. 1955 S.C. 352.\t(2) [1961]  1 S.C.R. 957,
\n(3) [1955] 2 S.C.R.164.\n<\/p>\n
548<\/span><\/p>\n
Mr.  Menon prevented legislation and it was then  held\tthat
\nthe grants were not legislative measures of the Maharaja and
\ndid  not bar the making of laws to set the grant at  naught.
\nIn that case also there was a Tharao in dispute. The  Tharao
\ncannot,\t therefore,  be treated as a law at all.   It  is  a
\ngrant and as a grant it was open to the new sovereign not to
\nrecognise it.\n<\/p>\n
It  was contended that in any event, after the\tcommencement
\nof  the Government of India Act, 1935, the  respondents\t had
\nthe protection of s. 299(1).  This point was raised but\t was
\nleft  open by the majority in Jamadar’s case(1) to which  we
\nhave  already  referred.   On  that  occasion,\tSarkar\t and
\nMudholkar JJ. in a separate judgment held that s. 299(1) did
\nnot  afford any protection.  The learned Judges pointed\t out
\nthat  s.  299(1) did not add to the rights  of\tpersons\t but
\nprotected  such rights as existed.  If on the Merger of\t the
\nterritories   of  the  Indian  Rulers  with  those  of\t the
\nGovernment  of India. there was Act of State and if as\theld
\nby  this Court in the cases to which reference\thas  alreadY
\nbeen  made it was open to the Government of India to  decide
\nwhether\t or not to recognise certain rights, the  Government
\nof India could do so.  In that event, s. 299(1) did not come
\ninto  play  because it could only come into play  after\t the
\nrights were recognised.\t The Act of State continued  because
\nGovernment was taking time to consider whether to accept the
\nTharao\tor  not and while the decision\twas  being  reached,
\nthere\twas  a\tsecond\tchange\tinasmuch  as   the   present
\nConstitution  was passed.  It is contended that there was  a
\nlapse  of  the\toriginal Act of State  because\tof  a  State
\nsuccession  on January 26, 1950, and as this was before\t the
\nResolutions   of  1951\tand  1953,  the\t  respondents\twere
\nprotected.\n<\/p>\n
The  first question to consider is whether there took  place
\nin  1950 a State succession.  State succession\ttakes  place
\neither in law or in fact.  It takes place in law when  there
\nis  a juridical substitution of one State for  another.\t  It
\ntake  place in-fact when there is (a) annexation (2) or\t (b)
\ncession(2)
\n(1)  [1962] 3 S.C.R. 970.\n<\/p>\n
(2)  e.g. Algiers by France (1831) or South African Republic
\nby Great Britain (1901).\n<\/p>\n
(3)  e.g. the Ionian Islands by Britain to Greece (1864)  or
\nterritory  to Poland by Germany.\n<\/p>\n
549<\/span><\/p>\n
or (c) fusion of one State with another into a federal Union
\n(2)  or\t (e) partition ration of secession(3).\tIt  will  be
\nseen that on the 26th January, 1950, there was no succession
\nin  fact  because  none\t of these  events  took\t place.\t  As
\nOppenheim defined “succession”—\n<\/p>\n
\t      “A succession of International Persons  occurs
\n\t      when  one or more International  Persons\ttake
\n\t      the  place of another International Person  in
\n\t      consequence of certain changes in the latter’s
\n\t      position International Law, 5th edn. p. 151.”\n<\/p><\/blockquote>\n
In this sense, though the people of India gave themselves  a
\nConstitution, there was no State succession in so far as the
\npeople\tof  Sant State were concerned.\tFor them  the  State
\nsuccession  was\t over sometime before.\tNo doubt,  when\t the
\nDominion  of India became a sovereign  Democratic  Republic,
\nthere  was a breaking away from the British Crown, but\tthat
\nwas  a\tState succession in a different field.\tWe  are\t not
\nconcerned  with\t the  secession of India  from\tthe  British
\nCrown,\tbut  with State succession between  Sant  State\t and
\nIndia, and there was no second succession in 1950.  Whatever
\nhad  happened had already happened in 1948 when\t Sant  State
\nmerged\twith the Dominion of India.  The Act of State  which
\nbegan in 1948 could continue uninterrupted even beyond\t1950
\nand  it\t did  not lapse or get replaced by  another  Act  of
\nState.\t The Constitution no doubt guaranteed the rights  of
\ncitizens  after 1950 but these rights granted by  the  Ruler
\nwere  fort recognised even before 1950 and the\tConstitution
\ngave  its  support  to those rights  which  were  extant  on
\nJanuary 26, 1950.\n<\/p>\n
It only remains to consider the argument of Mr.\t Purushotham
\nbased  on  the view of Chief Justice John Marshall,  of\t the
\nSupreme\t Court\tof the United States expressed\tin  U.S.  v.
\nPercheman(3) followed by Cardozo J. in 1937
\n(1)  e.g.   Fusion  of\tSerbia\twith  croat  etc.  to\tform
\nYugoslavia.\n<\/p>\n
(2) e.g. Hawaii in U.S.A.      (3) e.g. India and Pakistan.
\n(4) e.g. U.S.A. from Britain.\t(5) 32 U.S. 51 at 86, 87.\n<\/p>\n
550<\/span><\/p>\n
in  Shapleigh  v.   Mier(1).  It was there  laid  down\tthat
\nprivate ownership is not disturbed by changes in sovereignty
\nand that according to the modern usage of nations a  cession
\nof territory is not understood to be cession of the property
\nof the\tinhabitants. These two cases were referred to in the
\njudgment of Bose J. in Virendra Singh’s case (2) who pointed
\nout  that these principles were also reflected in the  Sixth
\nAdvisory  Opinion  of September 10, 1923  of  the  Permanent
\nCourt of International Justice.\t Mr. Purushotham cited other
\ncases  where  the  Supreme Court of the\t United\t States\t had
\nconsidered   obligations  which\t old  Spanish  and   Maxican
\ntreaties  had created.\tIt was argued that  this  represents
\nthe modern and progressive view and we were asked to  revise
\nthe entire law of Act of State as understood in India during
\nthe past 100 years and particularly the last dozen years.
\nThe principle on which this Court has acted in the past\t few
\nyears has been amply indicated earlier in this judgment.  It
\nmay be summarized in the words of Fletcher Moulton, L. J. in
\nSalaman v. Secretary of State for India(3):\n<\/p>\n
\t      “An Act of State is essentially an exercise of
\n\t      sovereign\t  power,   and\t hence\t cannot\t  be
\n\t      challenged,  controlled or interfered with  by
\n\t      municipal courts.\t Its sanction is not that of
\n\t      law,   but  that\tof  sovereign  power,\tand,
\n\t      whatever\tit be, municipal courts must  accept
\n\t      it,  as it is without question.  But  it\tmay,
\n\t      and often must, be part of their duty to\ttake
\n\t      cognizance of it.\t For instance, if an act  is
\n\t      relied  on  as being an act of State,  and  as
\n\t      thus  affording an answer to claims made by  a
\n\t      subject, the courts must decide whether it was
\n\t      in  truth\t an act of State, and what  was\t its
\n\t      nature and extent”.\n<\/p><\/blockquote>\n
The  Courts  in\t England  have also  acted  on\tthe  further
\nprinciple  which may be shortly stated in the words of\tLord
\nMcNair(4):\n<\/p>\n
(1) 299 U.S. 468 at 470.\t (2) [1955] 1 S.C.R. 415.
\n(3)  (1906] 1 K. B. 613.\n<\/p>\n
(4)  International  Law Opinions (1956) Vol 1. P. 1129;\t See
\nalso   O’Connel\t Y. B. (1950) P. 93.\n<\/p>\n
551<\/span><\/p>\n
\t      “The  term  ‘Act of State’ is used,  not\tonly
\n\t      narrowly\tto  describe the  defence  explained
\n\t      above, but also, perhaps somewhat loosely,  to
\n\t      denote   a  rule\twhich  is  wider  and\tmore
\n\t      fundamental  namely, that ‘those acts  of\t the
\n\t      Crown which are done under the prerogative  in
\n\t      the  sphere  of  foreign\taffairs’  (sometimes
\n\t      called ‘Acts of State’ or ‘Matters of State’);
\n\t      for instance, the making of peace and war, the
\n\t      annexation  or abandonment of  territory,\t the
\n\t      recognition   of\ta  new\tState  or  the\t new
\n\t      Government of an old State, etc., cannot\tform
\n\t      the  basis  of an action brought\tagainst\t the
\n\t      Crown,  or  its  agents or  servants,  by\t any
\n\t      person  British  or alien, or by\tany  foreign
\n\t      State,  in British Municipal Tribunals.\tSuch
\n\t      acts are not justiciable in British Courts, at
\n\t      the  suit\t either of British  subjects  or  of
\n\t      aliens; they may form the subject of political
\n\t      action  in Parliament or, when -the  interests
\n\t      of  foreign  States  or  their  nationals\t are
\n\t      involved,\t of  diplomatic protest\t or  of\t any
\n\t      international  judicial  process that  may  be
\n\t      available”.\n<\/p><\/blockquote>\n
We are not concerned with the obligations created by  treaty
\nwhich  according to the opinions of some writers  ‘run\twith
\nthe land’ and bind the territory.  Other writers, as pointed
\nout  by Lord McNair in his Law of Treaties by Keith  in\t his
\nTheory\tof State Succession and Crandall in Treaties,  Their
\nMaking\tand Enforcement. hold that on cession, the  treaties
\nare  abrogated automatically.  Such a view was taken by\t the
\nUnited Kingdom and United States when Algiers was annexed by
\nFrance\tand by the former when South Africa was\t annexed  by
\nGreat  Britain\tand  by the United  States  when  Korea\t was
\nannexed by Japan in 1910. (See Mervyn jones B. Y. B.  (1947)
\nP.  360;  Dr. C. W. Jenks B. Y. B. (1952 P.  105).   On\t the
\nother hand, the treaties of the annexing or cessionary State
\nare  held  to  apply  to the  new  territories.\t  These\t are
\ntreaties  with\tother  States which is not  the\t case  here.
\nWhere is the treaty here?  The rights conferred by the Ruler
\nwere not the result of a treaty.  Nor
\n552<\/span>
\ncan  the  Merger agreement be exalted to the position  of  a
\ntreaty.\t There is no treaty involved here.  Even if it\twere
\npossible  to hold that there was a treaty between the  Ruler
\nand  the  Central  Government,\tthere is  no  power  in\t the
\nMunicipal Courts in India to pronounce upon the Agreement as
\nthe subject is outside their jurisdiction by reason of\tArt.\n<\/p>\n
363.   This distinguishes the jurisdiction and power of\t the
\nSupreme Court of the United States in which consideration of
\ntreaties  is  included.\t The bar of  our  Constitution\talso
\nprecludes the consideration whether these agreements can  be
\nto be of the nature of treaties.\n<\/p>\n
As  regards the principles of International Law, it  may  be
\npointed\t  out  that  after  the\t Report\t of  the   Transvaal
\nConcessions Commission and Professor Keith’s theories in his
\nbook, the attention of the world communities has indeed been
\ndrawn  to  the\tpreservation  of  economic  concessions\t and
\nacquired  rights by the annexing or cessionary State.\tWhen
\nthe  Indian  Islands were ceded to Greece the  Law  Officers
\n(Sir Robert Phillimore was one of them) advised:\n<\/p>\n
\t      “Both   according\t  to   the   principles\t  of
\n\t      International  Law  and the  practice  of\t all
\n\t      civilised States, ceded territories pass,\t cum
\n\t      onere to the new sovereign.’
\n\t      (Opinion of 15th August, 1863, F. 0. 83\/2287.)
\n\t      McNair International Opinions, Vol. 1 p. 156.\n<\/p><\/blockquote>\n
Similar\t advice was given on the occasion of  annexation  of
\nPeruvian territory by Chile (1884), of Madagascar by  France
\n(1896), cession of Cuba and the Philipines by Spain  (1898).
\nMcNair ibid pp. 157 et seq.  Again at the annexation of\t the
\nBoer  Republics\t between 1900 and 1909 what  should  be\t the
\nattitude of Britain led to domestic controversy.  The  legal
\nadvisor to the High Commissioner advised that responsibility
\narising\t from  obligations  incurred by\t the  South  African
\nRepublic  and Orange Free State could be repudiated but\t the
\nLaw Officers in England reported that a Government  annexing
\nterritory  annexes it subject, speaking generally,  to\tsuch
\nlegal  obligations as have been incurred by  the  previously
\nexisting Government. The obligations included  concessionary
\ncontracts but the Law Officers added a
\n553<\/span>
\nrider  that  “the duty to observe such contracts  cannot  be
\nenforced  in  a\t municipal court; it  rests  merely  on\t the
\nrecognition  of International Law of what is equitable\tupon
\nthe  acquisition  of property of the conquered\tState”\t(see
\nopinion of 30th November, 1900, F.O. quoted by B. Y. B. 1950
\nat p. 105).\n<\/p>\n
The  Transvaal\tConcessions Commission made  its  report  in
\nApril 1901.  The report said inter alia:\n<\/p>\n
\t      “After  annexation,  it  has  been  said,\t the
\n\t      people  change  their  allegiance,  but  their
\n\t      relations\t to each other and their  rights  of
\n\t      property\tremain\tundisturbed;  and   property
\n\t      includes\t rights\t which\tlie   in   contract.
\n\t      Concessions  of the nature of those which\t are
\n\t      the  subject  of enquiry present\texamples  of
\n\t      mixed   public  and  private  rights  :\tthey
\n\t      probably\tcontinue to exist  after  annexation
\n\t      until abrogated by the annexing State, and  as
\n\t      a\t matter of practice in modern  times,  where
\n\t      treaties\t have  been  made  on\tcession\t  of
\n\t      territory,  have\toften  been  maintained\t  by
\n\t      agreement.”\n<\/p><\/blockquote>\n
The  Commission, however said that no rule of  International
\nLaw  compelled this but added that the best  modern  opinion
\nfavoured   that\t such  rights  should  be  respected.\t The
\ndistinction between what is a rule of law and what is a rule
\nof  ethics  was criticised : see Westlake in (1901)  17\t Law
\nQuarterly Review p. 395.  However, Prof.  Keith gave support
\nto the view.  The report of the Commission was\tconsiderably
\ninfluenced by the opinion in Cook v. Sprigg(1) International
\nexperts, however, in drafting the terms of settlement of the
\nfirst Balkan War accepted a new formula in 1920 by which the
\ncessionary  State was treated: as subrogated in\t all  rights
\nand changes.  These opinions were put to test in some  cases
\nbefore\tthe  Permanent\tCourt of  International\t Justice  in
\nconnection  with the Jaffa Concessions and the case  of\t the
\nGerman Settlers Case.  In the former, the Court decided, for
\ntechnical  reasons,  that it had no jurisdiction  but  added
\nthat “if Protocol XII left intact the general principles  of
\nsubrogation,”  the administration of Palestine was bound  to
\nrecognise the Jaffa,
\n(1)  [1899] A.C. 572.\n<\/p>\n
554<\/span><\/p>\n
Concessions  “in  consequence of the general  principles  of
\nInternational Law.” In the case of Settlers of German origin
\nin territory ceded by Germany to Poland and German  interest
\nin Upper Silesia case (P.C.I.J. series B No. 6 and series  A
\nNo.  7)\t the doctrine of acquired rights  was  accepted,  in
\nrespect\t of private rights.  The term “acquired rights”\t has
\nnot received a consistent meaning in this connection.  It is
\nnot  the  notion of ius quaesitum which was  the  result  of
\njuristic activity following upon the social contract theory.
\nIn  International  Law, it has different meanings.   At\t one
\nextreme\t is  the  view\tthat  it must  be  “a  grant  to  an
\nindividual of rights under municipal law which touch  public
\ninterest”  and at the other end “every economic\t concession”
\nis held included.  Of course even International Law does not
\nrecognise,a   universal\t succession.   The  term    economic
\nconcessions” must involve a contract between the State or  a
\npublic authority on the one hand and a concessionaire on the
\nother and must also involve an investment of capital by\t the
\nlatter\tfor erection of public works or exploitation in\t the
\npublic\tsector.\t  Such\tcases  are  the\t Mavromma  is  case,
\nLighthouses  case,  Lighthouses\t in  Crete  and\t Samos\tcase
\n(P.C.I.J.  Series  A No. 5 and Series A B No. 62 and  71  ).
\nCases  of  mere\t private rights\t without  any  corresponding
\nbenefit\t to the public are not regarded as  concessions\t but
\nthere are two cases in which it has been ruled that  private
\nrights\tmust  be  respected.  They are the  case  of  Poland
\nmentioned above.  Most of the cases deal with Concessions in
\nwhich there are reciprocal advantages.\n<\/p>\n
All  this recognition is still in the diplomatic field.\t  It
\nhas never gone beyond political consideration except in\t the
\nUnited States.\tThe cases of the United States are mostly to
\nbe  found  in 2-12 Peters and the leading case is U.  S.  v.
\nPercheman  (1).\t Occasionally the question of  concessionary
\nrights\thas been considered in the Courts in England  :\t but\n<\/p>\n
-of  that latter.  In U. S. v. Percheman(1),  Chief  Justice
\nJohn Marshall observed:\n<\/p>\n
\t      “It  may not be unworthy of remark that it  is
\n\t      very  unusual, even in cases of  conquest\t for
\n\t      the
\n\t      (1)   7. Pet. 61.\n<\/p><\/blockquote>\n
555<\/span><\/p>\n
\t      conqueror\t to  do more than  to  displace\t the
\n\t      sovereign\t  and  assume  dominion\t  over\t the
\n\t      country.\t The modem usage of  nations,  which
\n\t      has become law, would be violated; that  sense
\n\t      of justice and of right which is\tacknowledged
\n\t      and felt by the whole civilised world would be
\n\t      outraged,\t  if  private  property\t should\t  be
\n\t      generally\t confiscated,  and  private   rights
\n\t      annulled.\t The people change their allegiance;
\n\t      their relation to (their ancient sovereign  is
\n\t      dissolved; but their relations to each  other,
\n\t      and   their   rights   of\t  property    remain
\n\t      undisturbed.  If this be the modern rule\teven
\n\t      in  cases\t of  conquest,\twho  can  doubt\t its
\n\t      application to the case of an amicable cession
\n\t      of  territory?….. A cession of territory  is
\n\t      never  understood\t to  be\t a  cession  of\t the
\n\t      property\tbelonging to its  inhabitants.\t The
\n\t      King  cedes that only which belonged  to\thim.
\n\t      Lands  he had previously granted were not\t his
\n\t      to  cede.\t Neither party could  so  understand
\n\t      the  cession.   Neither party  could  consider
\n\t      itself  as attempting a wrong to\tindividuals,
\n\t      condemned\t  by  the  practice  of\t the   whole
\n\t      civilised\t world.\t The cession of a  territory
\n\t      by  its  name from one sovereign\tto  another,
\n\t      conveying the compound idea of surrendering at
\n\t      the  same\t time the lands and the\t people\t who
\n\t      inhabit  them would be necessarily  understood
\n\t      to  pass\tthe  sovereignty only,\tand  not  to
\n\t      interfere with private property.”\n<\/p><\/blockquote>\n
These  words of Chief Justice Marshall have been  quoted  in
\nlegal  opinions and have influenced  international  opinion.
\nThe question has been raised that we must accent this as the
\nexposition  of\tthe law to be applied  by  municipal  courts
\nhere.\n<\/p>\n
The  doctrine  in  the\tUnited\tStates\tis  not\t  unlimited.
\nLimitations were pointed out by Chief Justice John  Marshall
\nhimself in the case of Foster v. Nielson(1).  That case
\n(1)  [1829] 2 Pet. 253.\n<\/p>\n
556<\/span><\/p>\n
involved the effect upon private land titles of a phrase  in
\nan  Article of a treaty with Spain.  That phrase was  “shall
\nbe ratified and confirmed to those in possession”.  It\twas,
\nas  the\t Chief Justice said, in the “language  of  contract”
\nand.  it required legislative implementation  before  titles
\ncould be claimed.  This has led to a differentiation between
\nself  executing\t treaties and  non-self-executing  treaties.
\nSays Chief Justice John Marshall:-\n<\/p>\n
\t      “A treaty is in its nature a contract  between
\n\t      two  nations, not a Legislative Act.  It\tdoes
\n\t      not generally effect, of itself, the object to
\n\t      be  accomplished,\t especially so\tfar  as\t its
\n\t      operation is infra-territorial; but is carried
\n\t      into execution by the sovereign powers of\t the
\n\t      respective parties to the instrument.
\n\t      In the United States a different principle  is
\n\t      established.   Our  Constitution\tdeclares  ‘a
\n\t      treaty  to  be the law of the  land.   It\t is,
\n\t      consequently,  to\t be regarded  in  courts  of
\n\t      justice\tas   equivalent\t  to   an   Act\t  of
\n\t      Legislature,  whenever it operates  of  itself
\n\t      without the aid of any legislative  provision.
\n\t      But when the terms of the stipulation import a
\n\t      contractwhen either of the parties engages  to
\n\t      perform a particular act-the treaty  addresses
\n\t      itself  to  the political,  not  the  Judicial
\n\t      Department;  and the Legislature must  execute
\n\t      the  contract before it can become a rule\t for
\n\t      the Court.”\n<\/p><\/blockquote>\n
In  India, the position is different.  Article\t253  enables
\nlegislation to be made to implement international  treaties.
\nThis means that the law would bring the treaty in the  field
\nof  municipal  law.  The matter was considered\tin  one\t cam
\nBirma v. The State(1), where the High Court declared:\n<\/p>\n
\t      “Treaties\t which are a part  of  international
\n\t      law  do not form part of the law of  the\tland
\n\t      unless  expressly made so by  the\t legislative
\n\t      authority”.\n<\/p><\/blockquote>\n
This accords with what has been said by me but the judgment
\nseems to suggest that treaties which do not affect private
\n(1)  A.I.R. [1951] Rai. 127.\n<\/p>\n
557<\/span><\/p>\n
rights also require legislative implementation.\t This is not
\nquite  accurate,  because  it  is  not\tnecessary  that\t all
\ntreaties must be made a part of municipal law.\tI agree with
\nAlexander  in “International Law in India” in  International
\nand  Comparative  Law  Quarterly (1952) p. 289\tat  p.\t295.
\nPreuss [Michigan Law Review (1953) p. 1123 n. 151 calls it a
\nrare  example  of a treaty which was  not  enforced  without
\nlegislative sanction.  The only other example he gives is Re
\nArrow River and Tributaries Slide and Boom Co. Ltd. (1932) 2
\nB.L.R. 250. see B.Y.B. (1953) 30, pp. 202, 203.
\nThe precedent of the United States cannot be useful  because
\nit  has been held by the Supreme Court of the United  States
\nthat,  although\t the Courts have no power  to  question\t the
\nvalidity of the Act of State, they can consider its  effect.
\nSee U. S. v. Percheman(1) at P. 86 and that the\t enunciation
\nof treaties must be accepted by Courts, Clark v. Allen\t(2).
\nOur   practice\tand  Constitution  shows  that\t there\t are
\nlimitations upon the powers of Courts in matters of treaties
\nand  Courts cannot step in where only political\t departments
\ncan  act.  The power of the Courts is further  limited\twhen
\nthe  right is claimed against the political exercise of\t the
\npower of the State.\n<\/p>\n
Again,\tthe right claimed here is not even  a  concessionary
\nright  such as he has received the support of  international
\nwriters.  It is more of the nature of a gift by the ruler at
\nthe expense of the State.  It lacks bona fides which is\t one
\nof the things to look for.  There is no treaty involved\t and
\nwhatever guarantee there is, the Constitution precludes\t the
\nmunicipal   courts   from  considering.\t   Politically\t and
\nethically  there might have been some reason to\t accept\t and
\nrespect\t such  concessions but neither is a reason  for\t the
\nmunicipal   courts  to\tintervene.   The  position  of\t the
\nmunicipal courts according to English Jurisriudence has been
\nnoticed\t in  earlier  cases.   To  them\t may  be  added\t the
\nfollowing considerations.  In Amodu Tijani v.\t  Secretary,
\nSouthern Nigeria (3) it was said:\n<\/p>\n
\t      “a  mere\tchange in sovereignty is not  to  be
\n\t      presumed\t as  meant  to\tdisturb\t rights\t  of
\n\t      private owners, and
\n\t      (1) 7. Pet.  61\t\t  (2) 331 U.S. 503.\n<\/p><\/blockquote>\n
\t      (3)   [1921] 2, A.C. 399.\n<\/p><\/blockquote>\n
558<\/span><\/p>\n
\t      the general terms of a cession are prima facie
\n\t      to be construed accordingly.” (p. 407).
\n\t      Again, in West Rand Central Gold Mining Co. v.
\n\t      Regem(1), it was said:\n<\/p><\/blockquote>\n
\t      “It must not be forgotten that the obligations
\n\t      of  conquering states with regard\t to  private
\n\t      property of private individuals,\tparticularly
\n\t      land  as to which the title had  already\tbeen
\n\t      perfected\t before the conquest  or  annexation
\n\t      are altogether different from the\t obligations
\n\t      which  arise in respect of personal rights  by
\n\t      contracts.”\n<\/p><\/blockquote>\n
The observations in Amodu Tijani’s case(2) were cited before
\nthe Privy Council in Sardar Rustam Khan’s case(3).  But Lord
\nAtkin  after  referring\t to all\t cases\tfrom  Kamachee\tBoye
\nSaheba(4), referred to the observations of Lord Halsbury  in
\nCook v. Sprigg(5).\n<\/p>\n
\t      “It is well-established principle of law\tthat
\n\t      the transactions of independent States between
\n\t      each  other  are governed by other  laws\tthan
\n\t      those  which municipal courts administer.\t  It
\n\t      is  no  answer  to say that  by  the  ordinary
\n\t      principles   of  international   law   private
\n\t      property\tis respected by the sovereign  which
\n\t      accepts the cession and assume the duties\t and
\n\t      legal obligations of the former sovereign with
\n\t      respect  of such private property\t within\t the
\n\t      ceded  territory.\t  All that can\tbe  properly
\n\t      meant   by  such\ta  proposition,\t  is   that,
\n\t      according\t to  the well  understood  rules  of
\n\t      international law, a change of sovereignty  by
\n\t      cession ought not to affect private  property,
\n\t      but  no  municipal tribunal has  authority  to
\n\t      enforce such an obligation”.\n<\/p><\/blockquote>\n
Lord Atkin referred in his judgment to Secretary of State
\nv. Bai Raibai(6) and Vajje Singh’s case(7 ) as laying the
\n(1) (1905) 2 K.B. 391.(2) (1921) 2. A.C. 399.
\n(3) (1941) 68 I. A. 109.(4) (1859.) 13 Moore P.C. 22
\n(5) 1899 A.C. 572.  (6) (1915) L. R. 42 I.A. 229.\n<\/p>\n
(7) (1924)     L. R. 51 I.A. 357.\n<\/p>\n
559<\/span><\/p>\n
limits of the jurisdiction of municipal courts.\t These cases
\nhave been applied in several decisions by this Court and the
\nview  of the Supreme Court of the United States or the\tview
\ntaken in International Law has not been accepted.  It is not
\nthat  the  Courts in England have not been  pressed  by\t the
\nrules  of  International  Law as  a  science.\tAs  Westlake
\npointed\t out  in  the  Nature and  ]Extension  of  Title  by
\nConquest (op. cit.):\n<\/p>\n
\t      “The authorities on the law of England  appear
\n\t      to   be  prepared\t to  pay  that\thomage\t ;to
\n\t      international  law.  We may refer to what\t was
\n\t      said by Vice-Chancellor Lord Cranworth in King
\n\t      of  the Two Sicilies v. Willcox, I Sim.\tN.S.
\n\t      327-9,  and by Vice-Chancellor Wood in  United
\n\t      States of America v. Prioleau, 2 Ham. 563; and
\n\t      to the generality of the proposition laid down
\n\t      by  Vice Chancellor James in United States  of
\n\t      America v. Mcrae, L.R.8. Eq. 75.\t‘I apprehend
\n\t      it,’   he\t said,\t‘to  be\t the  clear   public
\n\t      universal\t law  that any government  which  de
\n\t      facto   succeeds\tto  any\t other\t government,
\n\t      whether by revolution or restoration, conquest
\n\t      or  reconquest,  succeeds to  all\t the  public
\n\t      property,\t to  everything\t in  the  nature  of
\n\t      public (property, and to all rights in respect
\n\t      of  the  public  property,  of  the  displaced
\n\t      power, whatever may be the nature or origin of
\n\t      the title of such displaced powers”.\n<\/p><\/blockquote>\n
But  the rule that the Act of State can be questioned  in  a
\nMunicipal Court has been adopted and it has been  considered
\nthat  it  is a matter for the political departments  of\t the
\nState.\tTo quote from Cook v. Sprigg(1).\n<\/p>\n
\t      “…. if there is either an express or a well-
\n\t      understood   bargain,   between\tthe   ceding
\n\t      potentate\t and  the Government  to  which\t the
\n\t      cession  is made, that private property  shall
\n\t      be respected, that is only a bargain which can
\n\t      be enforced by sovereign
\n\t      (1)   [1899] A.C. 572.\n<\/p><\/blockquote>\n
560<\/span><\/p>\n
\t      against  sovereign in the ordinary  course  of
\n\t      diplomatic pressure.”\n<\/p><\/blockquote>\n
I do not, therefore, accept the contention that a change  of
\nopinion\t is  necessary.\t  Even Bose J., did  not  decide  in
\nVirendra Singh’s case(1), on the basis of international\t law
\nor  the opinion of the Supreme Court of the  United  States.
\nIn   my\t opinion,  these  are  matters\tfor  the   political
\ndepartment of the State.  However, desirable it may be\tthat
\nsolemn guarantees should be respected, we cannot impose\t our
\nwill upon the State, because it is outside our jurisdiction.
\nFor these reasons, I-would accept the appeals and would\t set
\naside  the  judgment under appeal and  restore\tthe  decrees
\ndismissing the suits with costs throughout.
\nSHAH J.-The Ruler of Sant State had made grants of  villages
\nto jagirdars but without right to trees.  On March 12, 1948,
\nthe  Ruler issued an order reciting that the holders of\t the
\nvillages  were not given “rights of the forests”  and  after
\nconsidering  the complaints of certain jagirdars  they\twere
\ngiven  full  rights and authority over the  forests  in\t the
\nvillages  under their vahivat.\tThe jagirdars were  directed
\nto   manage  “the  forests  according  to  the\tpolicy\t and
\nadministration\tof  the State”.\t The  respondents  claim  in
\nthese appeals that the rights of the grantees to the forests
\nwere  not  liable to be cancelled by the Dominion  of  India
\nafter  the merger of the State of Sant in June 1948, and  by
\nexecutive action the Government of Bombay was not  competent
\nto obstruct the exercise of those rights.\n<\/p>\n
Pursuant to the agreement dated March 19, 1948 as from\tJune
\n1,  1948,  the\tState of Sant merged with  the\tDominion  of
\nIndia.\t  The\tsovereignty  of\t the   Ruler   was   thereby
\n,extinguished  and  the subjects of the\t Sant  State  became
\ncitizens  of the Dominion of India.  Accession of one  State
\nto another is an act of State and the subjects of the former
\nState  may,  as held in a large number of decisions  of\t the
\nJudicial  Committee and of this Court, claim  protection  of
\nonly  such  rights  as\tthe  new  sovereign  recognises\t  as
\nenforceable  ‘by  the subjects of the former  State  in\t his
\nmunicipal courts.\n<\/p>\n
(1)  [1955] 1 S.C.R. 415.\n<\/p>\n
561<\/span><\/p>\n
In  The Secretary of State in Council of India\tv.  Kamachee
\nBoye  Saheba(1) the jurisdiction of the courts in  India  to\n<\/p>\n
-adjudicate  upon  the validity of the seizure by  the\tEast
\nIndia  Company\tof the territory of Rajah of Tanjore  as  an
\nescheat,  on  the  ground that the dignity of  the  Raj\t was
\nextinct\t for want of a male heir, and that the\tproperty  of
\nthe late Rajah lapsed to the British Government, fell to  be
\ndetermined.  The Judicial Committee held that as the seizure
\nwas  made by the British Government, acting as\ta  sovereign
\npower, through its delegate the East India Company it was an
\nact  of\t State, to, inquire into the propriety\tof  which  a
\nMunicipal   Court  had\tno  Jurisdiction.   Lord   Kingsdown
\nobserved at p. 529:\n<\/p>\n
\t      “The   transactions  of\tindependent   States
\n\t      between each other are governed by other\tlaws
\n\t      than those which Municipal Courts\t administer:
\n\t      Such Courts have neither the means of deciding
\n\t      what is right, nor the power of enforcing\t any
\n\t      decision which they may make.”\n<\/p><\/blockquote>\n
\t      In  Vajesingji joravarsingji v.  Secretary  of
\n\t      State for India  Council(1) the Board observed
\n\t      (at p. 360):\n<\/p><\/blockquote>\n
\t      “……  when  a territory is  acquired  by  a
\n\t      sovereign State for the first time that is  an
\n\t      act   of\tState.\t It  matters  not  how\t the
\n\t      acquisition has been brought about.  It may be
\n\t      by conquest, it may be by cession following on
\n\t      treaty,  it may be by occupation of  territory
\n\t      hitherto unoccupied by a recognized ruler.  In
\n\t      all  cases  the  result  is  the\tsame.\t Any
\n\t      inhabitant  of the territory can make good  in
\n\t      the  municipal courts established by  the\t new
\n\t      sovereign\t only such rights as that  sovereign
\n\t      has,  through his officers, recognised.\tSuch
\n\t      rights   as,   he\t had  under  the   rule\t  of
\n\t      predecessors  avail  him nothing.\t  Nay  more,
\n\t      even   if\t in  a\ttreaty\tof  cession  it\t  is
\n\t      stipulated  that\tcertain\t inhabitants  should
\n\t      enjoy  certain  rights, that does not  give  a
\n\t      title to those
\n\t      (1) 7 Moode’s I.A. 476. (2) L.R. 51 I.A. 357.
\n\t      184-159 s.c.- 476.\n<\/p><\/blockquote>\n
562<\/span><\/p>\n
\t      inhabitants  to enforce these stipulations  in
\n\t      the  municipal courts.  The right\t to  enforce
\n\t      remains\tonly  with  the\t  high\t contracting
\n\t      parties.”\n<\/p><\/blockquote>\n
In Secretary of State v. Sardar Rustam Khan and Others<\/a>(1) in
\nconsidering  whether  the  rights of a\tgrantee\t of  certain
\nproprietary  rights  in lands from the then Khan  of  Kalat,
\nceased\tto  be enforceable since the agreement\tbetween\t the
\nKhan  and the Agent to the Governor-General  in\t Baluchistan
\nunder which the Khan had granted to the British Government a
\nperpetual lease of a part of the Kalat territory, at a\tquit
\nrent,  and had ceded in perpetuity with full  and  exclusive
\nrevenue, civil and criminal jurisdiction and all other forms
\nof administration, it was observed by Lord Atkin  delivering
\nthe judgment of the Board that :\n<\/p>\n
\t      “… in this case the Government of India\t bad
\n\t      the  right to recognise or not  recognise\t the
\n\t      existing\ttitles to land.\t In the case of\t the
\n\t      lands  in suit they decided not  to  recognize
\n\t      them, and it follows that the plaintiffs\thave
\n\t      no  recourse  against the\t Government  in\t the
\n\t      Municipal Courts.”\n<\/p><\/blockquote>\n
The  rule that cession of territory by one State to  another
\nis an act of State and the subjects of the former State\t may
\nenforce only those rights which the new sovereign recognises
\nhas been accepted by this Court in M\/s.\t Dalmia Dadri Cement
\nCo.  Ltd.  v. The Commissioner of  Income-tax<\/a>(2);  jagannath
\nAgarwala  v.  State of Orissa<\/a> (3); Promod  Chandra  Deb\t and
\nOthers v. The State of Orissa and Others<\/a>(4) and The State of
\nSaurashtra v. Jamadar Mohamad Abdulla and others<\/a>(5), and may
\nbe regarded as well settled.\n<\/p>\n
Mr.   Purshottam  on  behalf  of  the  respondents   however
\ncontended  that this rule was a relic of  the  imperialistic
\nand  expansionist philosophy of the  British  Jurisprudence,
\nwhich
\n(1) L. R. 68 I.A. 109.\t       (2) [1959] S.C.R. 729.
\n(3) [1962] 1 S.C.R. 205.  (4) [1962] Suppl. 1 S.C.R.405.\n<\/p>\n
(5) [1962]     3 S.C.R. 970.\n<\/p>\n
563<\/span><\/p>\n
is  inconsistent  with our Constitutional  set-up.   Counsel
\nsubmits\t  that\tin  jurisdictions  where  truly\t  democratic
\ninstitutions  exist  the  rule laid  down  by  the  Judicial
\nCommittee  has\tnot  been accepted.  The  rule\tis,  counsel
\nsubmits,   inconsistent\t  with\tthe  true  spirit   of\t our
\nConstitution, which seeks to eschew all arbitrary authority,
\nand  establishes  the  rule  of\t law  by  subjecting   every
\nexecutive  action to the scrutiny of the courts and to\ttest
\nit  in the light of fundamental rights.\t Counsel  says\tthat
\nthe true rule should be the one which has been recognized by
\nthe Supreme Court of the United States that of the accession
\nof  a  State  to another, private  rights  of  the  citizens
\nenforceable  against their sovereign are not  affected,\t and
\nmay  be\t enforced in the Courts of the\tnew  sovereign.\t  In
\nsupport\t of  this argument Mr. Purshottam  relied  upon\t the
\nobservations made by Marshall, C.  J.,\tin United States  v.
\nPercheman(1):\n<\/p>\n
\t      “The  people  change their  allegiance;  their
\n\t      relation\t to  their  ancient   sovereign\t  is
\n\t      dissolved; but their relations to each  other,
\n\t      and   their   rights   of\t  property,   remain
\n\t      undisturbed.  If this be the modern rule\teven
\n\t      in  cases\t of  conquest,\twho  can  doubt\t its
\n\t      application to the case of an amicable cession
\n\t      of territory ? A cession of territory is never
\n\t      understood  to  be a cession of  the  property
\n\t      belonging to its inhabitants.  The king  cedes
\n\t      that only which belonged to him.\tLands he had
\n\t      previously  granted  were\t not  his  to  cede.
\n\t      Neither\tparty  could  consider\t itself\t  as
\n\t      attending a wrong to individuals, condemned by
\n\t      the  practice  of the whole  civilised  world.
\n\t      The  cession of a territory by its  name\tfrom
\n\t      one   sovereign  to  another,  conveying\t the
\n\t      compound\tidea  of surrendering, at  the\tsame
\n\t      time  the\t lands and the\tpeople\twho  inhabit
\n\t      them, would be necessarily understood to\tpass
\n\t      the  sovereignty only, and to  interfere\twith
\n\t      private property. ”\n<\/p><\/blockquote>\n
But  the  rights and their enforceability in  the  Municipal
\nCourts\tof  a  State  must  depend  upon  the  will  of\t the
\nsovereign.   The  sovereign  is the  fountain  head  of\t all
\nrights, all laws and
\n(1)  (1833] 32 U.S. 51, at 86, 87.\n<\/p>\n
564<\/span><\/p>\n
all justice within the State and only those rights which are
\nrecognised  by the sovereign are enforceable in his  Courts,
\nThe Municipal Courts which derive their authority from their
\nsovereign and administer his laws cannot enforce the  rights
\nWhich  the  former sovereign whose territory has  merged  or
\nbeen  seized  by the new sovereign recognised  but  the\t new
\nsovereign has not, for the right to property of the  citizen
\nis only that right which the sovereign recognises.
\nIt  may also be observed that the constitutional  provisions
\nin the United States are somewhat different.  Under the Con-
\nstitution of the United States each treaty becomes a part of
\nthe law of the land, the provisions thereof are\t justiciable
\nand the covenants enforceable by the Courts.  Recognition of
\nthe  rights of the citizens of the acceding State being\t the
\nprerogative  of\t the sovereign, if rights be  recognized  by
\ntreaty\twhich by the special rules prevailing in the  United
\nStates\tbecome\tpart of the law of the land, they  would  be
\nenforceable by the Municipal Courts, Under the rule  adopted
\nby  this Court, a treaty is a contract between two  nations,
\nit  creates rights and obligations between  the\t contracting
\nStates. but there is no judicial tribunal which is competent
\nto enforce those rights and obligations.  The treaties\thave
\nnot  the  force\t of law and do not give rise  to  rights  or
\nobligations enforceable by the Municipal Courts as  observed
\nby Hyde in his ‘International Law” vol. 1 p. 433:\n<\/p>\n
\t      “Acknowledgement\tof  the\t principle  that   a
\n\t      change  of  sovereignty – does not  in  itself
\n\t      serve  to\t impair rights of  private  property
\n\t      validly  acquired\t in  areas  subjected  to  a
\n\t      change,\tdoes  not,  of\tcourse.\t touch\t the
\n\t      question whether the new sovereign is  obliged
\n\t      to  respect  those rights when vested  in\t the
\n\t      nationals of foreign States, such as those  of
\n\t      its predecessor.\tObviously, the basis of\t any
\n\t      restraint\t in  that regard which\tthe  law  of
\n\t      nations may be deemed to impose must be sought
\n\t      in another quarter.”\n<\/p><\/blockquote>\n
The  observations  made\t by Marshall C.\t J.,  have  received
\nrepeated recognition in treaties of cession concluded by the
\n565<\/span>
\nUnited States.\tBut as observed by Lord Halsbury in cook  v.
\nSprigg(1)
\n\t      “It  is  a well-established principle  of\t law
\n\t      that  the transactions of\t independent  States
\n\t      between each other are governed by the others,
\n\t      laws   than  those  which\t  Municipal   Courts
\n\t      administer. it is no answer to say that by the
\n\t      ordinary\t principles  of\t international\t law
\n\t      private property is respected by the sovereign
\n\t      which  accepts  the cession  and\tassumes\t the
\n\t      duties  and  legal obligations of\t the  former
\n\t      sovereign\t  with\trespect\t to   such   private
\n\t      property within the ceded territory.  All that
\n\t      can  be properly meant by such, a\t proposition
\n\t      is that according to the well-understood rules
\n\t      of  international law a change of\t sovereignty
\n\t      by   cession  ought  not\tto  affect   private
\n\t      property, but no municipal tribunal has autho-
\n\t      rity to enforce such an obligation.”\n<\/p>\n
It  was then urged that by cl. 7 of the letter of  guarantee
\nwritten\t by Mr. V. P. Menon on behalf of the  Government  of
\nIndia  on  October  1, 1948, which was\tto  be\tregarded  as
\nexpressly  stated  in  that letter, as part  of\t the  merger
\nagreement dated March 19, 1948, the Government of India\t had
\nundertaken to accept all orders passed and actions taken  by
\nthe Ruler prior to the date of handing over of the  adminis-
\ntration to the Dominion Government.  Clause 7 of the  letter
\nis in the following terms:\n<\/p>\n
\t      “No order passed or action taken by you before
\n\t      the date of making over the administration  to
\n\t      the Dominion Government will be questioned un-
\n\t      less  the\t order was passed  or  action  taken
\n\t      after  the  1st day of April 1948, and  it  is
\n\t      considered  by the Government of India  to  be
\n\t      palpably unjust or unreasonable.\tThe decision
\n\t      of  the Government of India in  their  respect
\n\t      will be final.”\n<\/p><\/blockquote>\n
But  by\t virtue of Art. 363 of the Constitution, it  is\t not
\nopen  to  the respondents to enforce the covenants  of\tthis
\nagree-\n<\/p>\n
(1)  [1899] A.C. 572.\n<\/p>\n
566<\/span><\/p>\n
ment in the Municipal Courts: Maharaj Umeg Singh and  Others
\nv. The State of Bombay and<\/a> ohers(1).\n<\/p>\n
It was then urged that the Government of Bombay as  delegate
\nof  the\t Dominion of India had recognised the right  of\t the
\nrespondents  when  they were permitted to cut  the  forests.
\nBut  the plea of recognition has no force.  It is true\tthat
\nsome  of  the  forests\twere permitted\tto  be\tcut  by\t the
\ncontractors under special conditions pending decision of the
\nGovernment  of\tBombay.\t The Conservator  of  Forests  North
\nWestern\t Circle\t had  ordered that the question\t as  to\t the
\napproval to be given to the agreement dated March 12,  1948,
\nwas  under  the\t consideration of the  Government  and\tthat
\nwritten\t undertakings  should be taken from  the  jagirdars,
\ninamdars  or persons concerned that they would abide by\t the
\ndecision  or  orders  passed by\t the  Bombay  Government  in
\nrespect of such private forests when the question of  rights
\nover  such  private  forests will be  finally  settled.\t  On
\nJanuary\t 9,  1949, on the application of  the  jagirdar\t the
\nDivisional  Forest Officer agreed to issue authorisation  to
\nthe  contractor\t valid upto March 31, 1949, subject  to\t the
\ncondition  that\t export\t outside was  not  to  be  permitted
\npending\t receipt of the orders by the Government and that  a
\nwritten undertaking was given by the purchaser that he would
\nabide  by the decision and orders passed by Government.\t  In
\npursuance of this arrangement undertakings were given by the
\ncontractors  and  the  jagirdars agreeing to  abide  by\t the
\ndecision  and the orders to be passed by the  Government  of
\nBombay\tin respect of the forest rights and  admitting\tthat
\nthe  authorization issued by the Divisional  Forest  Officer
\nwas  subject  to  those undertaking.   The  Forest  Officers
\ntherefore   did\t  not  allow  the  forests  to\t be   worked
\nunconditionally.   Cutting  of trees in the forests  by\t the
\ncontractors  was  permitted  subject to\t certain  terms\t and
\nconditions and on the clear undertaking that the question as
\nto  the right and the terms under which they could  cut\t the
\nforests would be decided by the Government.
\nThe Government of Bombay on July 8, 1949, resolved that\t the
\norder passed by the Ruler of the Sant State dated March\t 12,
\n1948, transferring forest rights to holders of the
\n(1)  [1955] 2 S.C.R. 164.\n<\/p>\n
567<\/span><\/p>\n
jagirs villages were mala fide and that they should be\tcan-
\ncelled, but before taking further action in the matter,\t the
\nCommissioner should ascertain whether the possession of\t the
\nforests in question was with the Government or was with\t the
\njagirdars.  The order proceeded to state: “It the possession
\nis  still  with\t Government please ask the  Officer  of\t the
\nForest Department to retain the same and to refuse to  issue
\npasses,\t etc.,\tto private contractors and  purchasers’.   A
\ncopy  of  this order was forwarded to the  Forest  Officers,
\nSantrampur  for\t information and guidance and  it  is  found
\nendorsed  on that order that no transit passes be  issued-to
\nthe  jagirdars to whom rights over forests were conceded  in
\nMarch  1948  and all further felling in such  jagir  forests
\nshould\tbe stopped at once and compliance reported.   It  is
\ntrue  that  the\t order\tof the\tGovernor  was  not  directly
\ncommunicated  to the jagirdars or the contractors.   But  if
\nthe conduct of the Forest Officers in permitting cutting  of
\nthe  forests  is  sought  to be relied\tupon,  it  would  be
\nnecessary  to take into consideration the orders  passed  by
\nthe  Conservator  of  Forests,\tNorth-Western  Circle,\t the
\nundertakings given by the contractors and the jagirdars\t and
\nthe order passed by the Governor of Bombay and the execution
\nof that order by stoppage of the cutting of the forests.  It
\nappears that cutting of trees in forests was permitted\tonly
\nupto some time in 1949 and was thereafter stopped altogether
\nby order of the Revenue Department.\n<\/p>\n
The final resolution cancelling the agreement was passed  on
\nFebruary 6, 1953.  It was recited in the resolution that the
\nTharav\tissued by the Ruler in 1948 had been  considered  by
\nthe Government to be mala fide and the same had already been
\nrepudiated  and\t it  was not binding on\t the  Government  of
\nBombay\tboth by law and under the agreement of\tintegration,
\nin   spite  of\tthe assurance contained\t in  the  collateral
\nletter.\t  It was also recited.\n<\/p>\n
\t      “Since the Tharav\t has not been recognised  by
\n\t      Government    but\t  has\tbeen\tspecifically
\n\t      repudiated,   everything\tdone  in   pursuance
\n\t      thereof  including the contracts entered\tinto
\n\t      after passing of the Tharav. is not valid and,
\n\t      therefore, binding on this Government. ”\n<\/p><\/blockquote>\n
568<\/span><\/p>\n
Having regard to the conduct of the Officers of the  Govern-
\nment  of  Bombay and the resolution of the  Government,\t the
\nplea  that the Government of Bombay as delegate of  the\t Do-
\nminion had renounced its right not to regard itself as bound
\nby  the\t order\tmade by the Ruler of Sant  State  cannot  be
\nsustained.\n<\/p>\n
The  next question which falls to be determined\t is  whether
\nthe  order  can be regarded as “law” within the\t meaning  of
\ncl.4 of the Administration of the Indian States Order, 1948.
\nClause 4 (1) provided:\n<\/p>\n
\t      “Such provisions, or such parts of provisions\n<\/p><\/blockquote>\n
\t      (a)   of any law, or (b)\tof any notification,
\n\t      order,  scheme, rule, form or bye-law  issued,
\n\t      made  or prescribed under any law, as were  in
\n\t      force immediately before the appointed day  in
\n\t      any Indian State shall continue in force until
\n\t      altered,\trepealed  or amended  by  an  order,
\n\t      under  the Extra Provincial Jurisdiction\tAct,
\n\t      1947 (XLVII of 1947):\n<\/p><\/blockquote>\n
\t      Provided\tthat the powers that were  exercised
\n\t      by the Ruler of an Indian State in respect  of
\n\t      or in relation to such Indian State under\t any
\n\t      such provisions of law immediately before\t the
\n\t      appointed day, shall be exercised by the\tPro-
\n\t      vincial  Government or any  officer  specially
\n\t      empowered\t in  this behalf by  the  Provincial
\n\t      Government.”\n<\/p><\/blockquote>\n
It  was\t urged that the order issued by the  Ruler  of\tSant
\nState was either “law” or an “order made or prescribed under
\nany  law” in force immediately before the appointed day\t and
\nby  virtue  of\tcl. 4 of the Administration  of\t the  Indian
\nStates\tOrder,\tit  must  be  deemed  to  have\tremained  in
\noperation  and any action taken in contravention thereof  by
\nexecutive  action  was unjustified.  Our attention  has\t not
\nbeen invited to any statutory provisions relating to forests
\nin  the\t State of Sant, nor does the order dated  March\t 12,
\n1948,  purport\tto be issued in exercise  of  any  statutory
\npower.\tOn the face of it the order grants certain rights in
\nforests\t which\thad  not  been\tpreviously  granted  to\t the
\njagirdars by the
\n569<\/span>
\nRuler.\t It is urged that the Ruler of Sant was an  absolute
\nRuler in whom were vested all authority legislative,  execu-
\ntive and judicial, and whatever he did or directed had to be
\ncomplied with and therefore his actions and directions\tmust
\nbe  deemed  to be “law” within the meaning of cl. 4  of\t the
\nAdministration\tof  the Indian States Order.  But  the\tfact
\nthat  ;the  Ruler of Sant State was an\tabsolute  Ruler\t not
\nbound by any constitutional limitations upon the exercise of
\nhis  powers does not, in my judgment, invest every  exercise
\nof his powers with legislative authority.  The functions  of
\na  State  whether  it contains a  democratic  set-up  or  is
\nadministered  by  an autocratic sovereign  fall\t into  three
\nbroad categories–executive, legislative and judicial.\t The
\nline  of  demarcation of these functions in an\tabsolute  or
\nautocratic form of Government may be thin and may in certain
\ncases not be easily discernible.  But on that account it  is
\nnot  possible  to  infer that every  act  of  an  autocratic
\nsovereign has a legislative content or that every  direction
\nmade  by  him must be regarded as law.\tThat an\t act  or  an
\norder of a sovereign with absolute authority may be enforced
\nand  the  subjects have no opportunity\tof  getting  redress
\nagainst infringement of their rights in the Municipal Courts
\nof -the State will not be decisive of the true character  of
\nthe functions of the sovereign in the exercise of which\t the
\nact was done or the order was made.  The distinction between
\nfunctions executive, legislative and judicial vested in\t one
\nperson\tmay not be obliterated, merely because they  are  in
\nfact exercised or are capable of being exercised indiscrimi-
\nnately.\n<\/p>\n
In the ultimate analysis, the legislative power is the power
\nto  make, alter. amend or repeal laws and  within,;  certain
\ndefinite  limits  to delegate that power.  Therefore  it  is
\npower  to  lay down a binding rule  of\tconduct.   Executive
\npower  “is  the power to execute and enforce the  laws,\t and
\njudicial power is power to ascertain, construe and determine
\nthe rights and obligations of the parties before a  Tribunal
\nin  respect of a transaction on the application of the\tlaws
\nand  even  in  an absolute regime this\tdistinction  of\t the
\nfunctions  prevails.  If an order is made during the  regime
\nof  a  sovereign who exercises absolute powers,\t and  it  is
\nenforced or executed leaving nothing more to be done there-\n<\/p>\n
570<\/span><\/p>\n
under to effectuate it, any discussion of its true character
\nwould  be  an idle exercise.  Where however in a  set-up  in
\nwhich  the  rule of law prevails, to  support  action  taken
\npursuant to an order you have to reach the source of  autho-
\nrity in the power of the previous autocratic sovereign,\t the
\ntrue nature of the function exercised may become  important,
\nwhen  the laws of the former State are by express  enactment
\ncontinued by the new sovereign.\n<\/p>\n
The  order  dated March 12, 1948, conveys to  the  jagirdars
\nrights\twhich had been previously excluded from the  grants.
\nThe  form  of  the  order is of\t course\t not  decisive.\t  An
\nimportant,  test  for  determining  the\t character  of\t the
\nsovereign  function  is whether the order  expressly  or  by
\nclear implication prescribes a rule of conduct governing the
\nsubject\t which\tmay be complied with  a\t sanction  demanding
\ncompliance therewith.\t The order dated March 12, 1948,  is
\nexpressly in the form of a  grant of the rights\t which\twere
\nnot previously granted and    does  not either expressly  or
\nby implication seek to lay down any binding rule of conduct.
\nI am therefore unable to hold that the order issued on March
\n12,  1948, by the Ruler of Sant State was “law” or an  order
\nmade  under  any  law within the meaning of  cl.  4  of\t the
\nAdministration of the Indian States Order. 1948.
\nCases  which  have  come  before this  Court  in  which\t the
\nquestion  as to the binding effect of orders issued  by\t the
\nRulers\tof  the former Indian States fell to  be  determined
\nclearly illustrate that principle.  In Ameer-un-Nissa  Begum
\nand others v. Mahboob Begum and others<\/a>(1) the question as to
\nthe  binding character of two ‘Firmans’ dated  February\t 24,
\n1949, and September 7, 1949, issued by H. E. H. the Nizam of
\nHyderabad  fell\t to be determined.  The Court in  that\tcase
\nobserved (at p. 359);-\n<\/p>\n
\t      “The   ‘Firmans’\twere  expressions   of\t the
\n\t      sovereign\t will  of the Nizam  and  they\twere
\n\t      binding  in the same way as any  other  law-,-
\n\t      nay, they would override all other laws  which
\n\t      were  in\tconflict with them.  So\t long  as  a
\n\t      particular ‘Firman’ held the field, that alone
\n\t      would gov-\n<\/p><\/blockquote>\n
\t      (1) A I.R. (1955) S.C. 352.\n<\/p><\/blockquote>\n
571<\/span><\/p>\n
\t      ern or regulate the rights of the parties con-
\n\t      cerned,  though it could be annulled or  modi-
\n\t      fied by a later ‘Firman’ at any time that\t the
\n\t      Nizam willed.”\n<\/p><\/blockquote>\n
\t      The  Court  declined to consider\twhether\t the
\n\t      ‘Firmans’were in the nature of “legislative
\n\t      enactment” or “judicial orders” and observed:
\n\t      “The   Nizam   was  not\tonly   the   supreme
\n\t      legislature, he was the fountain of justice as
\n\t      well.   When  he constituted a new  Court,  he
\n\t      could,  according\t to  ordinary  notions,\t  be
\n\t      deemed  to  have\texercised  his\t legislative
\n\t      authority.  When again he affirmed or reversed
\n\t      a judicial decision, that may appropriately be
\n\t      described as a judicial act.  A rigid line  of
\n\t      demarcation, however, between the one and\t the
\n\t      other would from the very nature of things  be
\n\t      not justified or even possible.”\n<\/p><\/blockquote>\n
In  that  case the primary question which the Court  had  to
\nconsider  was whether certain ‘Firmans’ issued by the  Nizam
\ncould  be  enforced.   It was held that\t the  order  may  be
\nlegislative  or judicial in character, but it could  not  be
\nregarded as executive.\tIt may be noticed that no action was
\nrequired to be taken after the cessor of the sovereignty  of
\nthe Nizam, in pursuance of the ‘Firmans’.  The ‘Firmans’ had
\nbecome\teffective, and titles of the parties stood  adjusted
\nin  the\t light of those ‘Firmans’ during the regime  of\t the
\nNizam.\n<\/p>\n
In Director of Endowments.  Government of Hyderabad v. Akram
\nAli(1)\tthe  effect  of a ‘Firman’ issued by  the  Nizam  on
\nDecember   30.\t1920,  directing  that\tthe   Ecclesiastical
\nDepartment to supervise a Dargah within the jurisdiction  of
\nthe Nizam until the rights of the parties were enquired into
\nand adjudicated upon by a civil court fell to be determined.
\nThe Court in that case held that the right of Akram Ali\t who
\nclaimed\t to  be hereditary Sajjad Nashin  and  Mutwalli\t was
\nsubject\t to  the order of the Nizam which  had\tbeen  passed
\nbefore\tthe Hyderabad State merged with the Union  of  India
\nand the applicant having no rights it could
\n(1)  A.I.R. 1956 S.C. 60.\n<\/p>\n
572<\/span><\/p>\n
be  enforced at the date of the Constitution and the  Courts
\nwere  incompetent to grant him relief till the\trights\twere
\ndetermined by the Constitution.\t The effect of the  ‘Firman’
\nwas  to\t deprive  the respondent Akram Ali  and\t all  ‘other
\nclaimants  of all rights to possession pending enquiry\tinto
\nthe  case.  It is clear from the observations made  in\tthat
\njudgment that the only decision of the Court was that by the
\n‘Firman’  the rights of the Sajjad Nashin and  Mutwalli\t was
\nsuspended till determination by the civil court of his right
\nto possession.\tThe ‘Firman’ was given effect not because it
\nwas  regarded as the expression of the legislative will\t but
\nbecause it had become effective before the Constitution came
\ninto effect suspending the rights of the applicant.
\nIn Madhorao Phalke v. The State of Madhya Bharat<\/a>(1) the true
\ncharacter  of certain ‘Kalambandis’ issued by the Rulers  of
\nGwalior\t fell  to  be determined.   The\t appellant  was\t the
\nrecipient  of a hereditary military pension granted  by\t the
\nRuler  of Gwalior to his ancestors in recognition  of  their
\nmilitary  services.   The  right  to  receive  pension\t was
\nrecognised  by the ‘Kalambandis’ of 1912 and 1935 issued  by
\nthe  Ruler.   After  the formation of the  State  of  Madhya
\nBharat under the Constitution, the Government of that  State
\nby an executive order terminated the right of the appellant.
\nThe  ‘Kalam-bandis’  though  not  issued  in  the  form\t  of
\nlegislative enactments were issued for the administration of
\nthe  department\t relating to the Shiledari  units.  and\t the
\nnature\tof the provisions unambiguously impressed upon\tthem
\nthe character of statutes or regulations having the force of
\nlaw.  The ‘Kalambandis’ recognised and conferred  hereditary
\nrights: they provided for the adoption of a son by the widow
\nof a deceased Silledar subject to the approval of the  State
\nand  also  for\tthe  maintenance  of  widows  out  of  funds
\nspecially  set apart for that purpose, and contemplated\t the
\noffering  of  a\t substitute when a silledar  became  old  or
\notherwise unfit to render service: they made detailed provi-
\nsion as to mutation of names after the death of a  silledar.
\nThey further enacted that the Asami being for the  shiledari
\nservice it could not be mortgaged for a debt of any  banker,
\nand if a decree holder sought to proceed against the amount
\n(1)  [1961] S.C.R. 957.\n<\/p>\n
573<\/span><\/p>\n
payable\t to him, execution had to be carried out in  accord-
\nance  with and in the manner and subject to the\t limitations
\nprescribed  in\tthat  behalf.  The  ‘Kalambandis’  were\t not
\ntreated as administrative orders issued merely for the\tpur-
\npose of regulating the working of the administration of\t the
\ndepartment of irregular forces, and were therefore to be re-
\ngarded\tas  regulations having all  the\t characteristics  of
\nlegislative enactments.\n<\/p>\n
In  Promod  Chandra  Deb’s case(1)  the\t true  character  of
\n,certain  ‘Khor\t Posh’\tgrants\tgranted\t by  the  Rulers  of
\nTalcher,  Bamara and Kalahandi fell to be determined,  in  a
\ngroup  of petitions for enforcement of\tfundamental  rights.
\nOut  of\t the four petitions, petition No. 167  of  1958\t was
\ndismissed  ,on the ground that under an order passed by\t the
\nExtra Provincial Jurisdiction Act, 1947, a grant made by the
\nRuler  ,of  Bamra in favour of the petitioner  was  annulled
\nbefore Bamra became part of the Union of India and the right
\ncreated\t by the grant had on that account ceased  to  exist.
\nIn two other petitions Nos. 168 of 1958 and 4 of 1959 it was
\nfound by the Court that the maintenance grants in favour  of
\ncertain\t members of the family of the Ruler were  recognised
\nby  the Government of India ‘and the right  thus  recognised
\nwas  given  effect  to and payments  pursuant  thereto\twere
\ncontinued  for\tnearly eight years after the merger  of\t the
\nState.\tThis Court held that the State having recognized its
\nobligation to pay the maintenance grants which were  -agreed
\nto be granted under the statutory law and the custom of\t the
\nState, the grants could not be annulled by executive action.
\nIn the principal writ petition No. 79 of 1957 the grants  by
\nthe  Ruler  of Talcher was made subject to  the\t -terms\t and
\nconditions  laid  down\tunder  Order 31\t of  the  Rules\t and
\nRegulations  of the State of Talcher of 1937.\tThese  Rules
\nand Regulations of Talcher of 1937 were regarded as the\t law
\nof the State and it was in accordance with the law that\t the
\n‘Khor Posh’ grants were made by the Ruler.  If was held that
\nthese grants had the effect of law.  Sinha C.J.,  delivering
\nthe majority judgment of the Court observed (at p. 436):\n<\/p>\n
\t      “There is also no doubt that the grant made by
\n\t      the   ruler  of  Talcher\tin  favour  of\t the
\n\t      petitioner
\n\t       (1)  [1962] Suppl.  1 S.C.R. 405.\n<\/p><\/blockquote>\n
574<\/span><\/p>\n
\t      continued\t to be effective until\tthe  Merger.
\n\t      The  nature  and conditions of such  grant  of
\n\t      Khorposh are governed by the provisions of the
\n\t      laws of that State as embodied in Order 31  of
\n\t      the  ‘Rules and Regulations of Talcher,  1937.
\n\t      Under the laws of Talcher, the petitioner\t had
\n\t      been  enjoying his Khorposh rights  until\t the
\n\t      cash grant, as it became converted in  1943-44
\n\t      as  aforesaid,  was stopped by  the  State  of
\n\t      Orissa, in April, 1949.”\n<\/p><\/blockquote>\n
In the view of this Court the terms and conditions,  subject
\nto  which the grant was made, were on the facts of the\tcast
\nin  the\t nature\t of legislative acts  and  not\texercise  of
\nexecutive functions.  The Court in that case did not purport
\nto  lay\t down that any act done by the Ruler whether  it  be
\nexecutive,  legislative or judicial must be  regarded  since
\nthe  merger  of\t the  State  as\t in  the  exercise  of\t the
\nlegislative  will of the Ruler and therefore  continuing  as
\nlaw.\n<\/p>\n
In  a  recent  judgment\t of  this  Court  in  Tilkayat\tShri
\nGovindlalji Maharaj etc. v. State of Rajasthan and others(‘)
\nthe  ‘Firman’ issued by the Udaipur Darbar in 1934  relating
\nto  the administration of the temple of Sharnathji at  Nath-
\ndwara,\twhich was expressly declared to be a public  temple,
\nand governing the devolution of the right to the  management
\nof  the temple, and certain incidental matters, fell  to  be
\ndetermined.  The ‘Firman’ consisted of four clauses.  By the
\nfirst  clause it was declared that according to the  law  of
\nUdaipur\t the shrine of Shrinathji had always been and was  a
\nreligious  institution\tfor the followers of  the  Vaishnava
\nSampradaya  and that all the property immovable and  movable
\ndedicated,  offered or presented to or otherwise  coming  to
\nthe deity Shrinathji had always been and was the property of
\nthe shrine and that the Tilkayat Maharaj for the time  being
\nwas  merely the custodian manager and trustee. of  the\tsaid
\nproperty  for the shrine.  The second clause prescribed\t the
\nrule of succession and declared that it was regulated by the
\nlaw  of primogeniture, and provided that the Udaipur  Darbar
\nhad  absolute  right to depose any Tilkayat Maharai  on\t the
\nground that such Tilkayat Maharaj was unfit. The
\n(1)  A.I.R. (1963) S.C. 1638.\n<\/p>\n
575<\/span><\/p>\n
third clause provided for measures to be taken by the  Ruler
\nfor  management\t of the shrine during the  minority  of\t the
\nTilkayat Maharaj and by the last clause it was provided that
\nin  accordance\twith  the law of Udaipur  the  Maharana\t had
\ndeclared Shri Damodarlalji-the then Tilkayat Maharajunfit to
\noccupy\tthe  Gaddi  and had approved of\t the  succession  of
\nGoswami Govindlalji to the Gaddi of Tilkayat Maharaj.\tThis
\n‘Firman’ declared the character of the trust relating to the
\nShrinathji temple, laid down rules as to the succession\t and
\nprovided  for  the  management during the  minority  of\t the
\nTilkayat, and declared the right of the State to remove\t the
\nTilkayat and for enforcement of that right by declaring that
\nthe  then Tilkayat was unfit to occupy the Gaddi.  This\t was
\nin substance though not in form exercise of the\t legislative
\nwill  of the sovereign.\t Its operation was not exhausted  by
\nits  enforcement  during  the  regime  of  the\tMaharana  of
\nUdaipur.  Devolution of the Gaddi, and declaration about the
\npower  of the Ruler over the shrine were intended to  govern
\nthe administration of the shrine for all times.\t It is\ttrue
\nthat  in  that case in paragraph-32 it\twas  observed  after
\nreferring  to  Madhorao\t Phalke’s  ease(1),   Ameer-un-Nissa
\nBegum’s case (2 ) and the Director of Endowments, Government
\nof Hyderabad’s case(3):\n<\/p>\n
\t      “In  the\tcase of an absolute Ruler  like\t the
\n\t      Maharana\tof Udaipur it is difficult  to\tmake
\n\t      any  distinction\tbetween an  executive  order
\n\t      issued by him or a legislative command  issued
\n\t      by him.  Any order issued by such a Ruler\t has
\n\t      the force of law and did govern the rights  of
\n\t      the parties affected thereby.”\n<\/p><\/blockquote>\n
It was not and could not be laid down that all orders issued
\nby  an absolute Ruler were legislative in character: it\t was
\nmerely sought to be emphasized that so long as the territory
\nof Udaipur and the shrine were under the sovereignty of\t the
\nMaharana  the distinction between commands  legislative\t and
\nexecutive  was academic, for all orders and commands of\t the
\nRuler  had to be obeyed alike.\tBut since the merger of\t the
\nState with the Union of India, the question
\n(1) [1961] S.C.R. 957,\t       (2) A.I.R. (1955) S.C. 352.
\n(3)  A.I.R. 1956 S.C. 60,
\n576<\/span>
\nwhether the ‘Firman’ was a mere executive order or a  legis-
\nlative\tenactment assumed vital importance.  If the  command
\nwas merely executive unless the rights created thereby\twere
\nrecognized by the Dominion of India they had no validity and
\nno  reliance  could  be placed upon them  in  the  Municipal
\nCourts.\t  If  the command was legislative, the laws  of\t the
\nformer\t State\thaving\tbeen  continued\t upon  merger,\t the
\nlegislative   command\tretained   vitality   and   remained
\nenforceable.   In  the\tcontext\t in  which  it\toccurs\t the
\nstatement set out did not and was not intended to lay  down,
\nthat  there is no distinction between  legislative  commands
\nand  executive\torders which have to be enforced  after\t the
\nmerger of the State with the Indian Union.\n<\/p>\n
I  may refer to decisions which illustrate  the\t distinction
\nbetween\t legislative  commands and executive orders  of\t the
\nRulers of the former Indian States. In Maharaja Shree  Umaid
\nMills  Ltd.  v. Union of India and  Others<\/a>(1)  the  question
\nwhether\t an  agreement between the Ruler of  Jodhpur  and  a
\nlimited Company whereby the Ruler agreed to exempt or  remit
\ncertain\t duties\t or royalties and to hold  the\tCompany\t not
\nliable\tto  pay taxes and further gave an assurance  to\t the
\nCompany to amend the laws so as to make them consistent with
\nthe  agreement was not regarded as “law” within the  meaning
\nof  Art. 372 of the Constitution.  In the view of the  Court
\nthe  agreement rested solely on the consent of the  parties:
\nit  was\t entirely  contractual in nature an a  none  of\t the
\ncharacteristics\t of  law.  The Court in that  case  observed
\nthat  every  order  of an absolute  Ruler  who\tcombines  in
\nhimself\t  all\tfunctions  cannot  be\ttreated\t  as   “law”
\nirrespective of the nature or character of the order passed.
\nThere  is, it was observed, a valid distinction\t between  an
\nagreement  between  two or more parties even if one  of\t the
\nparties\t is  the  sovereign  Ruler,  and  the  law  relating
\ngenerally  to agreements; the former rests on  consensus  of
\nmind, the latter expresses the will of the sovereign.\tThis
\ncase  supports the proposition that every act done or  order
\npassed\tby an absolute Ruler of an Indian State cannot\thave
\nthe force of law or be regarded as “law” since the merger of
\nhis  territory\twith  the ‘Union of  India’.   To  have\t the
\nvitality of law after
\n(1)  A.I.R. (1963) S.C. 953.\n<\/p>\n
577<\/span><\/p>\n
merger, it must be the expression of the legislative will of
\nthe Ruler,
\nThere  is yet another judgment of this Court in\t The  Bengal
\nNagpur\tCotton\tMills Ltd. v. The Board of  Revenue,  Madhya
\nPradesh and Others<\/a>(1) in which also the question whether  an
\nagreement  between the Ruler of Rajnandgaon and\t M\/s.\tShaw
\nWallace\t and Company in connection with the setting up of  a
\ntextile factory on certain concessional terms in the  matter
\nof imposition of octroi duties on imported goods fell to  be
\ndetermined.  It was observed in that case:\n<\/p>\n
\t      “It  is plain that an agreement of  the  Ruler
\n\t      expressed\t in the shape of a contract;  cannot
\n\t      be  regarded as a law.  A law must follow\t the
\n\t      customary\t forms\tof law-making  and  must  be
\n\t      expressed as a binding rule of conduct.  There
\n\t      is  generally  an established method  for\t the
\n\t      enactment of laws, and the laws, when enacted,
\n\t      have  also a distinct form.  It is  not  every
\n\t      indication  of the will of the Ruler,  however
\n\t      expressed,   which  amounts  to  a  law.\t  An
\n\t      indication of the will meant to bind as a rule
\n\t      of  conduct  and enacted with  some  formality
\n\t      either  traditional or specially\tdevised\t for
\n\t      the  occasion,  results in a law\tbut  not  an
\n\t      agreement to which there are two parties,\t one
\n\t      of which is the Ruler.”\n<\/p><\/blockquote>\n
The order of the Ruler of Sant dated March 12, 1948, was not
\nin  the\t form of a legislative enactment.  It also  did\t not
\nseek to lay down a course of conduct: it merely purported to
\ntransmit  certain  rights which were till the  date  of\t the
\norder vested in the Ruler to the jagirdars who were grantees
\nof  the\t villages.  It is difficult to hold  that  an  order
\nmerely granting forest rights not in pursuance of any legis-
\nlative authority, but in exercise of the power of the  sove-
\nreign  in whom the rights were vested, to the  jagirdars  to
\nwhom the villages were granted without forest rights, can be
\nregarded  as  “law”  within  the meaning of  cl.  4  of\t the
\nAdministration\tof the Indian States Order, 1948,  when\t the
\norder was not intended to lay down any binding rule of
\n(1) A.I.R. 1964 S.C. 888.\n<\/p>\n
(2) 134-154 S.C. 37.\n<\/p>\n
578<\/span><\/p>\n
conduct\t of the grantees and merely purported to convey\t the
\nrights which till then were vested in the Ruler.
\nThe other question which remains to be determined is whether
\nthe respondents are entitled to the protection of s.  299(1)
\nof the Government of India Act, 1935, or Art. 31 (1) of\t the
\nConstitution.  Undoubtedly the order which deprives them  of
\nthe  right to cut forest trees which they claimed  from\t the
\njagirdar  who derived them under the grant dated  March\t 12,
\n1948, from the Ruler of Sant is an executive order.  Section
\n299(1)\tof the Government of India Act, 1935, protection  of
\nwhich  was claimed on the merger of the State of  Sant\twith
\nthe Dominion of India provided:\n<\/p>\n
\t      “No  person shall be deprived of his  property
\n\t      in  British India save by authority of law.”
\nThe clause conferred protection upon the property rights  of
\npersons\t against any executive action not supported by\tlaw.
\nTo attract the clause, there must, however, exist a right to
\nproperty  which is sought to be protected.  If\tfor  reasons
\nwhich  we  have\t already stated\t in  considering  the  first
\nquestion,  the subjects of the acceding State  are  entitled
\nonly  to  such\trights\tas  the\t new  sovereign\t chooses  to
\nrecognize,  in the absence of any recognition of the  rights
\nof the respondents or their predecessor jagirdars, there was
\nno  right to property of which protection could be  claimed.
\nAs  held  by this Court in State of  Saurashtra\t v.  Jamadar
\nMohamad\t  Abdulla  and\tothers<\/a>(1)  orders  passed   by\t the
\nAdministrator  of the State of Junagadh appointed on  behalf
\nof the Government of India (which had assumed charge of\t the
\nadministration of the State after the Nawab of Junagadh fled
\nthe  country) on various dates between November 9, 1947\t and
\nJanuary\t 20,  1949, cancelling grants in favour\t of  certain
\npersons in whose favour the grants had previously been\tmade
\nby the Nawab of Junagadh were not liable to be challenged in
\nsuits  filed  by  the grantees in the Civil  Courts  of\t the
\nDominion,  on  the plea that the properties had\t been  taken
\naway without the authority of law.  This Court held that the
\nimpugned  orders  cancelling  the grants in  favour  of\t the
\nrespondents  and taking of the properties arose out  of\t and
\nduring\tan  act of State and they could\t not  be  questioned
\nbefore Municipal Tribunals, for the
\n(1)  (1962] 3 S.C.R. 970.\n<\/p>\n
579<\/span><\/p>\n
orders of cancellation were passed before the change over of
\nde jure sovereignty.\n<\/p>\n
There  is  no support for the assumption made  by  the\tres-
\npondents that an act of State arises merely at a fixed point
\nof time when sovereignty is assumed.  An act of State may be
\nspread over a period, and does not arise merely on the point
\nof acquisition of sovereign right: see Promod Chandra  Deb’s
\ncase(1).  Nor is the new sovereign required to announce\t his
\ndecision when he assumes or accepts sovereignty over foreign
\nterritory,   about  the\t rights\t created  by   the   quondam
\nsovereign,  on\tpain of being held bound by  the  rights  so
\ncreated.    The\t  decision  of\tthis  Court   in   jagannath
\nAgarwalla’s  case(2) pointedly illustrates  this  principle.
\nThe  State of Mayurbhanj merged with the Province of  Orissa
\non January 1, 1949, but an order dated June 28, 1952 made by
\nthe Board of Revenue acting on behalf of the State of Orissa
\nrejecting the claim made by a person who had entered into an
\nagreement or arrangement with the Maharaja of Mayurbhanj  in
\n1943  was held to be in the course of an act of\t State,\t the
\nrejection of the claim being in pursuance of an order issued
\nunder  s. 4 of the Extra Provincial Jurisdiction Act, 47  of
\n1947.  Therefore till the right to property of the  subjects
\nof  the\t former\t Indian\t State was  recognized\tby  the\t new
\nsovereign  there was no title capable of being\tenforced  in
\nthe Courts of the Dominion or the Union.\n<\/p>\n
It  was then urged that in any event since the enactment  of
\nthe  Constitution, by executive action a person may  not  be
\ndeprived  of  his  right to property,  and  this  protection
\napplies\t as much to rights granted by the former  Rulers  to
\npersons\t who  on merger became citizens of the\tDominion  of
\nIndia  as  to  rights of property  of  other  citizens.\t  In
\nsubstance it is urged that even if there was no\t recognition
\nof  the\t right to property which was granted by\t the  former
\nsovereign by the Dominion Government, after the enactment of
\nthe constitution the right granted by the former Rulers\t may
\nonly  be  taken\t away  by legislative  command\tand  not  by
\nexecutive   action.    This   argument\t proceeds   upon   a
\nmisconception  of  the\tnature\tof  the\t fundamental   right
\nconferred by Art. 31(1) of the Constitution.  In terms,\t the
\nArticle\t  confers  a  right  to\t claim\tprotection   against
\ndeprivation of property otherwise than by
\n(1) [1962] Suppl. 1 S.C.R. 405.\n<\/p>\n
(2) [1962] 1 S.C.R. 205.\n<\/p>\n
580<\/span><\/p>\n
authority  of law.  A right to property is undoubtedly\tpro-
\ntected\t against  all  actions\totherwise  than\t under\t the
\nauthority  of  law.  But the clause postulates\ta  right  to
\nproperty which is protected.  It does not purport to  invest
\na  person  with\t a  right to property  which  has  not\tbeen
\nrecognized  by the Dominion of India or the Union.  Even  if
\nthe right to property was recognized by the Indian State  of
\nwhich  the  claimant  was  subject, so long  as\t it  is\t not
\nrecognized   by\t the  Dominion\tor  the\t Union\tit  is\t not
\nenforceable  by the Courts in India.  On the merger  of\t the
\nState  of Sant with the Dominion of India,  undoubtedly\t the
\nrespondents  became citizens of the Dominion and  they\twere
\nentitled  like\tany other citizen to the protection  of\t the
\nrights which the Dominion recognized.\n<\/p>\n
It  has\t also  to be remembered\t that  promulgation  of\t the
\nConstitution did not result in transfer of sovereignty\tfrom
\nthe Dominion of India to the Union.  It was merely change in
\nthe form of Government.\t By the Constitution, the  authority
\nof the British Crown over the Dominion was extinguished, and
\nthe sovereignty which was till then rooted in -the Crown was
\nsince  the  Constitution came into force  derived  from\t the
\npeople\tof  India.   It is true\t that  whatever\t vestige  of
\nauthority  which the British Crown had over the Dominion  of
\nIndia,\tsince  the  Indian  Independence  Act  was   thereby
\nextinguished, but there was no cession, conquest  occupation
\nor  transfer of territory.  The new governmental set up\t was
\nthe  final  step in the process of evolution  towards  self-
\ngovernment.   The fact that it did not owe its authority  to
\nan  outside agency but was taken by the\t representatives  of
\nthe  people made no difference in its true  character.\t The
\ncontinuance of the governmental machinery and of the laws of
\nthe  Dominion, give a lie to any theory of  transmission  of
\nsovereignty  or of the extinction of the sovereignty of\t the
\nDominion,  and from its ashes, the springing up\t of  another
\nsovereign  as suggested in Virendra Singh and Others v.\t The
\nState of Uttar Pradesh<\/a>(1) which\t will presently examine.
\nIf  therefore  the respondents had under the  Government  of
\nIndia Act, 1935, after the merger not acquired any right  to
\nthe forests by virtue of any recognition of the Tharav dated
\nMarch 12, 1948, the promulgation of the Constitution
\n(1)  [1955] 1 S.C.R. 415.\n<\/p>\n
581<\/span><\/p>\n
did  not invest them with any additional rights which  would
\nconvert\t either\t their\tclaims to  the\tforest\trights\tinto
\nproperty  or to enable them to enforce in the Indian  Courts
\nsuch claims not recognized by the State as fundamental right
\nto  property.\tBy Art. 31 right to  property  is  protected
\nagainst all actions save by authority of law.  But if  there
\nwas  no\t right\tto property, an\t executive  action  refusing
\nrecognition  of a claim to property could not infringe\tArt.
\n31 of the Constitution.\n<\/p>\n
In  Virendra Singh’s case(1) this Court held that since\t the
\npromulgation of the Constitution grants which had been\tmade
\nby the previous Rulers, even if they were not recognized  by
\nthe Dominion of India or the Union, could not be  interfered
\nwith  except  by  authority  of\t law.\tIn  that  case\t the
\npetitioners  were grantees from the Rulers of the States  of
\nSarila and Charkhari of certain villages before those States
\nmerged\twith the Dominion of India.  The  States  originally
\nmerged\twith the Union of Vindhya Pradesh, and\tthe  Vindhya
\nPradesh\t Government confirmed the grants in  December  1948.
\nBut  the  Union\t of  the  States  of  Vindhya  Pradesh\t was
\ndissolved, and the covenanting States separately acceded  to
\nthe  Dominion  of India, and surrendered all  authority\t and
\njurisdiction in relation to the governance of the States and
\nexecuted  instrument  called  ‘The  Vindhya  Pradesh  Merger
\nAgreement’.   The  States which formed the  Vindhya  Pradesh
\nwere  transformed  into a Chief Commissioner’s\tProvince  on
\nJanuary\t 23, 1950.  The grants of the four villages made  in
\nfavour of the petitioners Were revoked in August 1952 by the
\nGovernment  of\tthe State of Uttar Pradesh  to\twhich  State
\nthose  villages\t being enclaves within\tits  territory\twere
\ntransferred.   The grantees of the villages then  petitioned
\nthis Court under Art. 32 of the Constitution challenging the
\nvalidity  of  the orders revoking the grant  of\t jagirs\t and
\nmaufis in the four villages as violative of Arts. 31 (1) and
\n19 (1 ) (f ) of the Constitution.  This Court observed\tthat
\nthe  properties in question were the properties\t over  which
\nthe  Rulers  had  right of disposition at the  date  of\t the
\ngrants, and the grants were absolute in character and  would
\nunder  any  civilised  system of law pass  an  absolute\t and
\nindefeasible  title to the grantees and that  assuming\tthat
\nthe titles were defensible at the mere will of
\n (1) [1955] 1 S.C.R. 415.\n<\/p>\n
582<\/span><\/p>\n
the  sovereign\tthe  fact remained that\t they  were  neither
\nresumed by the former Rulers nor confiscated by the Dominion
\nof  India as an act of State and upto the 25th\tof  January,
\n1950,  the  right and title of the grantees to\tcontinue  in
\npossession was good and was not interfered with.  The  Court
\naccordingly  held  that the Constitution  by  the  authority
\nderived from and conferred by the people of India; destroyed
\nall   vestige  of  arbitrary  and  despotic  power  in\t the
\nterritories  of\t India and over its citizens and  lands\t and
\nprohibited just such acts of arbitrary power as the State of
\nUttar  Pradesh in that case was seeking to uphold.   It\t was
\nfurther\t observed that the Dominion of India and the  States
\nhad  abandoned their sovereignty and surrendered it  to\t the
\npeople of the land who framed the new Constitution of  India
\nand as no sovereign can exercise an act of State against its
\nown  subjects, the orders of revocation of the\tgrants\twere
\ninvalid.   In my view the conclusion of the Court  proceeded
\nupon two assumptions, neither of which was true:\n<\/p>\n
\t      (i)   that the sovereignty of the Dominion  of
\n\t      India and of the States was surrendered to the
\n\t      people  of India, and in the exercise  of\t the
\n\t      sovereign power the people gave themselves the
\n\t      new Constitution as from January 26, 1950; and\n<\/p><\/blockquote>\n
\t      (ii)  the\t petitioners  who were in  de  facto
\n\t      possession of the disputed lands had rights in
\n\t      them which they could have enforced upto\t26th
\n\t      January, 1950, in the Dominion Courts  against
\n\t      all persons except possibly the State.\n<\/p><\/blockquote>\n
These assumptions are not supported by history or by consti-
\ntutional  theory.   There is no warrant for holding  at\t the
\nstroke of mid-night of the 25th January, 1950, all our\tpre-
\nexisting political institutions ceased to exist, and in\t the
\nnext  moment  arose  a new set\tof  institutions  completely
\nunrelated to the past.\tThe Constituent Assembly which\tgave
\nform to the Constitution functioned for several years  under
\nthe  old regime, and set up the constitutional machinery  on
\nthe foundations of the earlier political set up.  It did not
\nseek to destroy the past institutions: it raised an  edifice
\non what existed before.\t The Constituent Assembly molded  no
\nnew
\n583<\/span>
\nsovereignty:it\tmerely gave shape to the aspirations of\t the
\npeople,\t by destroying foreign control and evolving  a\tcom-
\npletely\t democratic form of government as a  republic.\t The
\nprocess was not one of destruction, but of evolution.
\nFor  reasons  already stated it is impossible to  hold\tthat
\nwhat were mere claims to property till the 25th of  January,
\n1950,  could  be regarded as enforceable  against  any\tone.
\nTill  the Dominion of India recognised the right,  expressly
\nor  by implication there was no right to property which\t the
\nCourts\tin  India could enforce.  There is  nothing  in\t the
\nConstitution which transformed the claims which till January
\n25, 1950, had not been recognized into property rights so as
\nto  prevent  all further exercise of the act of\t State,\t and
\nextinguish  the powers of the Union to refuse  to  recognize
\nthe claims.\n<\/p>\n
The  order passed in August 1952 revoking the grants by\t the
\nRulers\tof Sarila and Charkhari was in my view in  substance
\nan  act\t of State.  It is true that there can be no  act  of
\nState  by  a sovereign against his own\tsubjects.   But\t the
\nState was seeking to refuse to recognize the claims made  by
\nthe  grantees from the former Rulers, and the fact that\t the
\nact  of State operated to the prejudice of persons who\twere
\nat  the\t date of refusal of recognition\t citizens,  did\t not
\ndeprive\t the  act  of  State  of  either  its  character  or
\nefficacy.\n<\/p>\n
These  appeals must therefore be allowed and the suit  filed
\nby the respondents dismissed with costs throughout.
\nRAGHUBAR DAYAL J.-I agree with the views expressed R, by  my
\nlearned\t brother  Ayyangar J., on all the points  except  in
\nregard to the Tharao dated March 12. 1948, being law.
\nI  agree with brother Hidayatullah J., that this  Tharao  is
\nnot law, and further agree with him in the order proposed.
\nMUDHOLKAR J.-This Bench has been constituted for considering
\nwhether the reasoning underlying the decision of this  Court
\nin Virendra Singh v. The State of Uttar Pradesh<\/a>(1) that\t the
\ninhabitants  of the Indian States brought with\tthem,  after
\nthe merger of those States in the Dominion of India pursuant
\nto agreements entered into by the Rulers of those
\n(1) [1955] 1 S.C.R. 415.\n<\/p>\n
584<\/span><\/p>\n
States, rights to property granted to them by the Rulers  of
\nthose  States,\tis  correct or not.  The  decision  and\t the
\nvarious\t grounds  upon which it rests  have  been  carefully
\nexamined by my brother Ayyangar J., in his judgment and I am
\ngenerally in agreement with what he has said.  As,  however,
\nI  take\t a somewhat different view on some  of\tthe  matters
\nwhich arise for consideration in this case this judgment has
\nbecome necessary.\n<\/p>\n
The  facts  have been set out fully in the  judgment  of  my
\nlearned\t brother  and, therefore, it will be  sufficient  to
\nmention only such of them as are necessary to elucidate\t the
\nquestions  which I propose to deal with.  In consequence  of
\ntwo  agreements\t entered into by the former  Ruler  of\tSant
\nState, the territory of that State merged in the Dominion of
\nIndia  as  from June 10, 1948.\tPrior to that  date  it\t had
\nacceded\t to  the Dominion of India on three  subjects  only.
\nThis State, along with other ruling States in India,  became
\nan  independent\t sovereign State in the year 1947  when\t the
\nDominions of India and Pakistan were constituted.  By virtue
\nof the powers vested in the Central Government by the  Extra
\nProvincial Jurisdiction Act, 1947 it delegated its functions
\nto  the Government of Bombay which passed the Indian  States
\n(Application  of  Laws) Order, 1948 on July 28,\t 1948.\t In,
\nconsequence of that Order certain laws in force in the\tPro-
\nvince of Bombay were extended to the merged territories.  By
\nthe  operation\tof the Indian States  (Merger  of  Governors
\nProvinces)  Order, 1949, the Sant State became part  of\t the
\nProvince of Bombay.\n<\/p>\n
The  agreement\trelating to the merger of the State  in\t the
\nDominion of India was entered into by the Ruler of Sant some
\ntime  before the date on which the merger became  effective.
\nThe Ruler of the State passed a Tharao (which is  translated
\nas ‘Order) on March 12, 1948 in the following terms:-\n<\/p>\n
\t      “S. Ta.  Mu Outward Register No. 371.
\n\t      The   Jivak,   Patavat,\tInami,\t Chakariyat,
\n\t      Dharmada\tvillages  in Sant  State  are  being
\n\t      given  (granted) to Jagirdars and the  holders
\n\t      of the said villages are not given rights over
\n\t      forests.\t  Hence\t  after\t  considering\t the
\n\t      complaints of certain Jagirs, they,
\n585<\/span>
\n\t      are being given full rights and authority over
\n\t      the  forests  in\tthe  villages  under   their
\n\t      vahivat.\t So, they should manage the  vahivat
\n\t      of  the  forest according to  the\t policy\t and
\n\t      administration  of the State.  Orders in\tthis
\n\t      regard to be issued.”\n<\/p><\/blockquote>\n
Taking\tadvantage  of the Tharao several  Jagirdars  entered
\ninto contracts pertaining to the exploitation of the forests
\nin their Jagirs.  The respondents in these appeals are\tsome
\nof  the forest contractors.  The Government of the  Province
\nof Bombay through the officers of its Forest Department\t did
\nnot allow the respondents to exercise their rights under the
\ncontracts  entered  into with them by the Jagirdars  on\t the
\nground\tthat the grant of forest rights by the former  Ruler
\nto  the\t Jagirdars  was\t not  binding  upon  the   successor
\nGovernment.  Thus being deprived of their right to work\t the
\nforests\t the various respondents instituted suits after\t the
\ncoming\tinto  force  of the Constitution  of  India.   Their
\nclaims\twere  opposed by the State of Bombay mainly  on\t the
\nground\tthat  in  the absence  of  recognition,\t express  or
\nimplied,  by the successor State of rights conferred by\t the
\nformer-\t Ruler\ton the Jagirdars the respondents  could\t not
\nenforce\t them  in the municipal courts.\t The  suits  of\t the
\nrespondents  were dismissed by the court of  first  instance
\nand  appeals preferred therefrom by them were  dismissed  by
\nthe District Court.  In second appeal, however, the  appeals
\nwere allowed by the High Court by a common judgment in which
\nreliance is placed largely upon what has been held and\tsaid
\nby this Court in Virendra Singh’s case(1) though a reference
\nhas also been made to two other decisions of this Court\t and
\nsome decisions of the Privy Council.\n<\/p>\n
In  the\t arguments before us it has never been\tin  question
\nthat  the acquisition of the territory of Sant State by\t the
\nDominion  of  India  in\t pursuance  of\tthe  Instrument\t  of
\nAccession  and\tMerger Agreement was an act of\tState.\t The
\nrespondents’ contentions were, however, that (1) in point of
\nfact  the Government of Bombay, acting through the  officers
\nof  the\t forest\t department had\t recognised  the  Jagirdar’s
\nrights by permitting the contractors to carry on the work of
\ncutting timber; (2) that though the Government of”
\n(1)  [1955] 1 S.C.R. 415.\n<\/p>\n
586<\/span><\/p>\n
Bombay\tsubsequently repudiated the Jagirdars’\trights\tthat
\nrepudiation was of no avail; (3) that the letter sent to the
\nRuler  of Sant State by the Secretary to the States  Depart-
\nment, Mr. V. P. Menon, in October, 1948 amounted to a waiver
\nby the Dominion of India of the right of repudiation of\t the
\nrights of Jagirdars; (4) that after the Jagirdars became the
\ncitizens  of the Dominion of India there could be no act  of
\nState  against\tthem; (5) that the doctrine evolved  by\t the
\nPrivy  Council in its decisions starting from  Secretary  of
\nState  for India v. Kamachee Boye Sahiba(1) and\t going\tupto
\nAsrar Ahmed v. Durgah Committee, Ajmer(2) was opposed to the
\npresent\t view  on the effect of conquest  and  cession\tupon
\nprivate\t rights\t as exemplified in the decisions  in  United
\nStates\t v.  Percheman(3)  and\tthat  this   Court   should,
\ntherefore,  discard the Privy Council’s view and  adopt\t the
\nmodem  view inasmuch as the latter is considered  by  common
\nconsent\t to  be\t just  and fair and  finally  (6)  that\t the
\nJagirdars  could  not  be  deprived  of\t the  forest  rights
\ndeprived  by  them from the Ruler of Sant State\t before\t the
\nConstitution,  without ,complying with the provisions of  s.
\n299  of\t the Government of India Act, 1935,  and  after\t the
\ncoming into force of the Constitution without complying with
\nthe provisions of Art. 31 of the Constitution.
\nI agree with my brother Ayyangar J., that the fact that some
\nofficers   of  the  forest  department\thad  permitted\t the
\nrespondents to carry on operations in the forests leased out
\nto  them by the Jagirdars does not amount to recognition  of
\nthe  right conferred upon the latter by the Tharao of  March
\n12,  1948.   In\t the first place, it was  not  open  to\t the
\nofficers  of the forest department to grant  recognition  to
\nthe  Jagirdars’ rights for the simple reason that the  right
\nof  granting  recognition  could be exercised  only  by\t the
\nGovernment acting through its appropriate agency.   Moreover
\nthe  permission\t which was accorded to the  respondents\t was
\nonly  tentative and expressly subject to the final  decision
\nof  the Government on the question of their right under\t the
\nleases granted by the Jagirdars.\n<\/p>\n
(1) (1859) 13 Moore P.C. 22.   (2) A-1 R 1947 P. C I.
\n(3) (1883) 32 U. S. 51.\n<\/p>\n
587<\/span><\/p>\n
The  second contention of the respondents is based  upon  -a
\nmisapprehension of the legal position flowing from the\tlong
\nseries\tof  decisions of the Privy Council which  have\tbeen
\naccepted  by this Court in several of its decisions  and  in
\nparticular Dalmia Dadri, Cement Co. Ltd. v. The Commissioner
\nof  Income-tax<\/a>(1); State of Saurashtra v. Memon Haji  Ismail<\/a>
\n(2) ; Promod Chandra Deb and Ors. v. The State of Orissa and
\nOrs.<\/a>(3); State of Saurashtra v. Jamadar Mahamad Abdulla\t and
\nOrs.<\/a>(4). The one decision in which the Privy Council’s\tview
\nis criticised is that of Virendra Singh’s case(5).  The view
\nof  the Privy Council has been expressed by Lord Dunedin  in
\nVajesinghji  v.\t Secretary  of State  for  India(6)  in\t the
\nfollowing  passage which has been ,quoted with\tapproval  in
\nseveral judgments.\n<\/p>\n
\t      “When  a territory is acquired by a  sovereign
\n\t      State  for  the first time that is an  Act  of
\n\t      State.  It matters not how the acquisition has
\n\t      been brought about.  It may be by conquest, it
\n\t      may be by cession following on treaty, it\t may
\n\t      be   by  occupation  of\tterritory   hitherto
\n\t      unoccupied by a recognised ruler. in all cases
\n\t      the result is the same., Any inhabitant of the
\n\t      territory\t can  make  good  in  the  municipal
\n\t      courts  established by the new sovereign\tonly
\n\t      such rights as that sovereign has, through his
\n\t      officers,\t recognised.  Such rights as he\t had
\n\t      under  the  rule\tof  predecessors  avail\t him
\n\t      nothing.\t Nay  more, even if in a  treaty  of
\n\t      cession\tit   is\t stipulated   that   certain
\n\t      inhabitants should enjoy certain rights,\tthat
\n\t      does not give a title to, those inhabitants to
\n\t      enforce  those stipulations in  the  municipal
\n\t      courts.\tThe right to enforce,  remains\tonly
\n\t      with the high contracting parties.”\n<\/p><\/blockquote>\n
Thus  what is clear beyond doubt is that the rights  derived
\nby the inhabitants of the conquered and ceded territory from
\nits former rulers cannot be enforced by them against the new
\n(1) [1959] S.C.R. 729.(2) [19601 1 S.C.R. 537.
\n(3) [1962] Supp. 1. S.C.R. 405.(4) [19621 3 S.C.R. 970.
\n(5) [1955] 1 S C.R. 415.(6) 51 T.A. 357.\n<\/p>\n
588<\/span><\/p>\n
sovereign  in the courts of that sovereign unless they\thave
\nbeen recognized by the sovereign.  The only basis upon which
\nrights\tof  this kind can be enforced in a  municipal  court
\nwould  be the fact of its recognition by the new  sovereign.
\nA  right  which\t cannot -on its\t own  strength\tbe  enforced
\nagainst a sovereign in the courts of that sovereign must  be
\ndeemed to have ceased to exist.\t It follows therefore that a
\nright\twhich  has,  ceased  to\t exist\tdoes   not   require
\nrepudiation.\n<\/p>\n
As  regards the argument that the Government has waived\t its
\nright to withold recognition, I agree with all that has been
\nsaid by my brother Ayyangar J. Indeed, if the inhabitants of
\na  ceded territory have ceased to have a right\tagainst\t the
\nnew  sovereign there is nothing for the sovereign to  waive.
\nI  also agree with my learned brother that if the letter  of
\nthe  Secretary to the States Department wpon which  reliance
\nis  placed  by the respondents is regarded as  part  of\t the
\nagreement  of merger the municipal courts are  precluded  by
\nArt.  363  of  the Constitution from  enforcing\t any  rights
\narising thereunder.\n<\/p>\n
The  argument that there can be no Act of State against\t its
\ncitizens  is  based  upon the supposition  that\t the  rights
\nclaimed\t by the Jagirdars from their former Ruler  would  be
\navailable to them against the new sovereign unless they were
\nrepudiated   and  that\there,  as  the\tresolution  of\t the
\nGovernment  of\tBombay dated February 6, 1953  stating\tthat
\nJagirdars’ rights have already been repudiated amounts to an
\nAct  of State against persons who had long before this\tdate
\nbecome\tthe  citizens  of  the\tRepublic  of  India  it\t was
\nincompetent.   As already pointed out, the municipal  courts
\ncannot\ttake  notice of a right such as this unless  it\t had
\nbeen  recognized  expressly  or by implication\tby  the\t new
\nsovereign.  doubt,  the\t Government  resolution\t speaks\t  of
\nrepudiation.   That  in my opinion is only a  loose  way  of
\nconveying  that\t the rights of the Jagirdars have  not\tbeen
\nrecognized.   That resolution does no more than set out\t the
\nfinal decision of Government not to give recognition to\t the
\nTharao\tof March 12, 1948 by which the former Ruler of\tSant
\nState  ad conferred certain forest rights on the  Jagirdars.
\nIndeed, it is clear from paragraph 3 of that resolution that
\nthe  Government\t had  expressly\t borne\tin  mind  the  legal
\nposition
\n589<\/span>
\nthat  rights claimed under the Tharao gave no title  to\t the
\ninhabitants  of\t Sant State to enforce them in\ta  municipal
\n,court and that the right to enforce them remained only with
\nthe high contracting parties.\n<\/p>\n
Now as to the argument that this Court should discard the  view
\ntaken by the Privy Council in Secretary of State for   India
\nv. Kamchee Boye Sahiba(1); Secretary of State for India\t  v.
\nBai  Rajbai(2);\t Vajesinghji  v.  Secretary  of\t State\t for
\nIndia(3);  Secretary of State v. Sardar Rustom\tKhan<\/a>(4)\t and
\nAsrar  Ahmed’s\tcase(5) and adopt the view taken  by  ,Chief
\nJustice Marshall in Percheman’s case(6).  I agree with\tmuch
\nwhich  my learned brother has said but would,add one  thing.
\nIt  is\tthis.\tThe  courts  in\t England  have\tapplied\t the
\nprinciples  of international law upon the view that what  is
\nby the common consent of all civilized nations held to be an
\n,appropriate  rule  governing international  relations\tmust
\nalso  be deemed to be a part of the common law\tof  England.
\nThus   English\tcourts\thave  given  effect  to\t  rules\t  of
\ninternational\tlaw   by   resorting   to   a\tprocess\t  of
\nincorporation(7).   The\t English courts also  recognise\t the
\nprinciple that since the British Parliament is paramount the
\nrules  of  international  law are subject to  the  right  of
\nParliament  to\tmodify\tor abrogate any\t of  its  rules.   A
\nmunicipal  court  can only enforce the law in force  in\t the
\nState.\t Therefore,  if\t a  rule  of  international  law  is
\nabrogated  by  Parliament  it  cannot  be  enforced  by\t the
\nmunicipal  courts of the State and where it is\tmodified  by
\nParliament  it\tcan  be enforced  by  the  municipal  courts
\nsubject\t  to  the  modification.   Would  the  position\t  be
\ndifferent  where a particular rule of international law\t has
\nbeen  incorporated  into  the common law  by  decisions\t ,of
\ncourts?\t  So far as the municipal courts are concerned\tthat
\nwould  be the law of the land which alone it has  the  power
\nand  the duty to enforce.  Where Parliament does not  modify
\nor  abrogate  a rule of international law which\t has  become
\npart of the common law, is it open to a municipal
\n(1) (1859) 13  Moore P.C. 22(2) 42 I.A. 229.\n<\/p>\n
(3) 51 I.A. 357.    (4) 68 I.A. 109.\n<\/p>\n
(5) A.I.R. 1947 P.C. I.(6) (1833) 32 U. S. 51.
\n(7) See International Law-a Text 1962 by Jacobini, p. 32  et
\nseq
\n590<\/span>
\ncourt to abrogate it or to enforce it in a modified form  on
\nthe  ground  that  the\topinion\t of  civilized\tStates\t has
\nundergone  a change and instead of the old rule a more\tjust
\nand fair rule has been accepted ? Surely the law of a  State
\ncan only be modified or repealed by a competent\t legislature
\nof theState and not by international opinion however weighty
\nthat  Opinion may be.  Now, a rule of international  law  on
\nwhich  the several Privy Council decisions as to the  effect
\nof  conquest  or  cession  on  the  private  rights  of\t the
\ninhabitants. of the conquered or ceded territory is  founded
\nhas  become a part of the common law of this country.\tThis
\nis  ‘law  in  force  and  is  saved  by\t Art.  372  of\t the
\nConstitution.  The courts in India are, therefore, bound  to
\nenforce\t that  rule  and not a\trule  of  international\t law
\ngoverning the same matter based upon the principle of  state
\nsuccession which had received the approval of Marshall\tC.J.
\nand  which has also received the approval of  several  text-
\nbook  writers,\tincluding  Hyde(1).  It\t is  true  that\t the
\nInternational  Court of Justice has also stated the  law  on
\nthe  point  to\tbe  the same but that  does  not  alter\t the
\nposition  so far as the municipal courts are concerned.\t  If
\nin the light of this our law is regarded as inequitous or  a
\nsurvival of an imperialistic system the remedy lies not with
\nus  but\t with  the  legislature\t or  with  the\t appropriate
\nGovernment by granting recognition to the private rights  of
\nthe inhabitants of a newly acquired territory.
\nThus while according to one view there is a State succession
\nin  so far as private rights are concerned according to\t the
\nother which we might say is reflected in our laws, it is not
\nso.   Two  concepts  underlie  our law :  One  is  that\t the
\ninhabitants  of\t acquired  territories bring  with  them  no
\nrights enforceable against the new sovereign.  The other  is
\nthat  the municipal courts have no jurisdiction\t to  enforce
\nany rights claimed by them, even by virtue of the provisions
\nof a treaty or other transaction internationally binding  on
\nthe new sovereign unless their rights have been recognized
\n(1)  See Hyde international Law Vol. 1, 2nd ed. p. 431, and
\nWesley\tL.  Gould-An introduction to International  Law\t pp.
\n422-427.\n<\/p>\n
591<\/span><\/p>\n
by  the\t new  sovereign.   Municipal  courts  derive,  their
\njurisdiction from the municipal law and not from the laws of
\nnations and a change in the laws of nations brought about by
\nthe consent of the nations of the world cannot confer upon a
\nmunicipal  court  a jurisdiction which it does\t-.lot  enjoy
\nunder the municipal law.\n<\/p>\n
Apart  from  that the rule cannot be regarded  merely  as  a
\ndevice\tof colonial powers for enriching themselves  at\t the
\nexpense\t of  the inhabitants of conquered  territories\tand,
\ntherefore,  an\tanachronism.  It would neither be  just\t nor
\nreasonable  to\tbind  the  new\tsovereign,  by\tduties\t and
\nobligations in favour of private parties created by the\t ex-
\nsovereign  from\t political  motives or for  the\t purpose  of
\nrobbing\t the  new  sovereign  of  the  full  fruits  of\t his
\nacquisition.   No doubt, International Law does not  prevent
\nlegislation by the new sovereign for the purpose of  freeing
\nitself from Such duties and obligations but that would be  a
\nlong and laborious process and may be rendered onerous or by
\nreason of constitutional provisions such as those  contained
\nin Part III of our Constitution, even impossible.  It  would
\nalso not be reasonable to regard the new sovereign as  being
\nbound by duties and obligations created by the\tex-sovereign
\ntill  such time as the new sovereign was able to  show\tthat
\nthey  were  incurred by the ex-sovereign mala fide.   It  is
\napparently  for\t such reasons that the law as found  by\t the
\nPrivy  Council deprives the grantees under the former  ruler
\ncompletely  of\ttheir rights as against a new  sovereign  by
\nmaking those rights unenforceable in a municipal court.\t It,
\nhowever,  also envisages the recognition of those rights  by
\nthe  new  sovereign.  This means that the new  sovereign  is
\nexpected to examine all the grants and find out for  himself
\nwhether any of the grants are vitiated by mala fides or were
\nagainst\t his  legitimate  interests  so\t that  he  can\tgive
\nrecognition to those grants only which were not vitiated  by
\nmala  fides or which were not against his  interests.\tThat
\nthis  is how the rule was applied would be clear  from\twhat
\nhappened  in  this country when time and  again\t territories
\nwere   ceded  by  former  Indian  Rulers  to   the   British
\nGovernment.   As  an  instance of this there  was  the\tInam
\nEnquiry\t in  the middle of the last century as a  result  of
\nwhich a very large number of Inams were ultimately
\n592<\/span>
\nrecognised  by the British Government.\tThat  while  dealing
\nwith the claims of the former grantees in ceded\t territories
\nused  to  be examined meticulously would be clear  from\t the
\nfacts in Bai Rajbai’s case(1).\tSuch being the actual  posi-
\ntion I do not think that the rule which has been applied  in
\nthis  country  can be regarded to be anachronism  or  to  be
\niniquitous
\nIn  so\tfar as the argument is based on\t the  provisions  of
\ns.299  of the Government of India Act, 1935 and Art.  31  of
\nthe  Constitution  is concerned I would reiterate  the\tview
\nwhich my brother Sarkar J. and myself have taken in  Jamadar
\nMahamad\t Abdulla’s case(3) and Promod Chandra Deb’s  case(4)
\nwhich  is the same as that expressed by my brother  Ayyangar
\nJ., and with which my brother Hidayatullah J., has agreed. ,
\nAdverting  to a similar argument advanced by Mr. Pathak\t ‘in
\nthe  former  case we quoted the following passage  from\t the
\njudgment  of  Venkatarama Aiyar J., in Dalmia  Dadri  Cement
\nCo’s case(4):-\n<\/p>\n
\t      “,It is also well established that in the\t new
\n\t      set up these residents do not carry with\tthem
\n\t      the rights which they possessed as subjects of
\n\t      the  ex-sovereign and that as subjects of\t the
\n\t      new  sovereign, they have only such rights  as
\n\t      are granted or recognised by him.”
\n\t      and  a  passage  from  the  judgment  in\t Bai
\n\t      Rajbai’s case(5), and then observed :
\n\t      “Any  right  to  property which  in  its\tvery
\n\t      nature is not legally enforceable was  clearly
\n\t      incapable of being protected by that section.”
\n\t      (pp. 1001-2).\n<\/p><\/blockquote>\n
\t      That  was\t a  reference to s.  299(1)  of\t the
\n\t      Government  of India Act, 1935.  In the  other
\n\t      case we have observed at p. 499:-\n<\/p><\/blockquote>\n
\t      “In our opinion s. 299(1) of the\tConstitution
\n\t      Act  of  1935 did not help grantees  from\t the
\n\t      former
\n\t       (1) 42 I.A. 229. (2) (1962] 3 S.C.R. 970.
\n\t      (3)  [1962]  Supp. 1 S.C.R. 405.\t (4)  [1959]
\n\t      S.C.R. 729.   (5)\t   42 I. A. 229.\n<\/p><\/blockquote>\n
593<\/span><\/p>\n
\t      rulers whose rights had not been recognized by
\n\t      his   new\t  sovereign   in   the\t matter\t  of
\n\t      establishing  their  rights in  the  municipal
\n\t      courts  of  the  new  sovereign  because\tthat
\n\t      provision\t only protected such rights  as\t the
\n\t      new citizen had at the moment of his  becoming
\n\t      a citizen of the Indian Dominion.\t It did\t not
\n\t      enlarge  his  rights  nor\t did  it  cure\t any
\n\t      infirmity\t     in\t     the      rights\t  of
\n\t      thecitizen:…………..”\n<\/p><\/blockquote>\n
The  other point raised in these appeals was as\t to  whether
\nthe  Tharao  relied upon by the respondents was a  law\tand,
\ntherefore,  could be said to have been kept in force by\t the
\nprovisions  of the Application of Laws Order, 1949  made  by
\nthe Province of Bombay.\t My brother Ayyangar J., has largely
\non  the\t basis\tof the decision of this\t Court\tin  Madhorao
\nPhalke\tv. The State of Madhya Pradesh<\/a> (1) held that  it  is
\nlaw.  On the other hand my brother Hidayatullah J., has come
\nto  the opposite conclusion.  My brother Shah J.,  has\talso
\nheld  that the Tharao is not a law.  I agreed with the\tview
\ntaken  by my brother Hidayatullah J., and brother  Shah\t J.,
\nthat  it  is  not a law and that the  decision\tin  Madhorao
\nPhalke’s case(1) does not justify the conclusion that it  is
\n‘law’.\tI do not think it necessary for the purpose of\tthis
\ncase  to  examine further the question as to  what  are\t the
\nindicia of a law.\n<\/p>\n
For  these  reasons  I would allow the\tappeals\t with  costs
\nthroughout.\n<\/p>\n
\t\t\t   ORDER
\nSINHA  C.J.–In accordance with the opinion of the  majority
\nthe  appeals are allowed with costs throughout–one  set  of
\nhearing fees.\n<\/p>\n
(1) [1961] 1 S.C.R. 957.\n<\/p>\n
134-154 S.C.-38.\n<\/p>\n
594<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Gujarat vs Vora Fiddali Badruddin … on 30 January, 1964 Equivalent citations: 1964 AIR 1043, 1964 SCR (6) 461 Author: N R Ayyangar Bench: Sinha, Bhuvneshwar P.(Cj), Subbarao, K., Hidayatullah, M., Shah, J.C. & Dayal, Raghubar, Ayyangar, N.R. & Mudholkar, J.R. PETITIONER: STATE OF GUJARAT Vs. RESPONDENT: VORA FIDDALI […]<\/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-26759","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Gujarat vs Vora Fiddali Badruddin ... on 30 January, 1964 - 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\/state-of-gujarat-vs-vora-fiddali-badruddin-on-30-january-1964\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Gujarat vs Vora Fiddali Badruddin ... on 30 January, 1964 - 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