{"id":9747,"date":"1958-04-28T00:00:00","date_gmt":"1958-04-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-dalmia-dadri-cement-co-ltd-vs-the-commissioner-of-on-28-april-1958"},"modified":"2017-10-20T06:46:58","modified_gmt":"2017-10-20T01:16:58","slug":"ms-dalmia-dadri-cement-co-ltd-vs-the-commissioner-of-on-28-april-1958","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-dalmia-dadri-cement-co-ltd-vs-the-commissioner-of-on-28-april-1958","title":{"rendered":"M\/S. Dalmia Dadri Cement Co. Ltd vs The Commissioner Of … on 28 April, 1958"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S. Dalmia Dadri Cement Co. Ltd vs The Commissioner Of … on 28 April, 1958<\/div>\n
Equivalent citations: 1958 AIR 816, \t\t 1959 SCR 729<\/div>\n
Author: T V Aiyyar<\/div>\n
Bench: Das, Sudhi Ranjan (Cj), Aiyyar, T.L. Venkatarama, Das, S.K., Gajendragadkar, P.B., Bose, Vivian<\/div>\n
           PETITIONER:\nM\/S.  DALMIA DADRI CEMENT CO.  LTD.\n\n\tVs.\n\nRESPONDENT:\nTHE COMMISSIONER OF INCOME-TAX(and connected petition)\n\nDATE OF JUDGMENT:\n28\/04\/1958\n\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nBOSE, VIVIAN\nDAS, SUDHI RANJAN (CJ)\nDAS, S.K.\nGAJENDRAGADKAR, P.B.\n\nCITATION:\n 1958 AIR  816\t\t  1959 SCR  729\n\n\nACT:\n       Act  of State-Covenant between States for  merger-Rights\t of\n       subjects of the Covenanting States-Enforcement in  municipal\n       courts\tof  the\t New  State-Income-tax-Concessional   rates\n       granted by the Covenanting State-Whether binding on the\tNew\n       State.\n\n\n\nHEADNOTE:\nThe appellant company which was incorporated in 1938 in\t the\nerstwhile  State of Jind obtained certain  concessions\tfrom\nthe  Ruler  of the State under an agreement dated  April  1,\n1938, -which, inter alia, provided that the State was to  be\nallotted  certain shares in the company without any  payment\nand as regards income-tax the company was to be assessed  at\nconcessional rates.  On May 5, 1948, the Ruler of jind along\nwith  the  Rulers  of  seven other  States  entered  into  a\nCovenant for the merger of their territories into one State,\nArticle\t VI of the Covenant provided, inter alia,  that\t the\nRuler\tof  the\t Covenanting  State  shall  make  over\t the\nadministration\tof  his State to the Rajpramukh of  the\t new\nState  and that all duties and obligations of the  Ruler  of\nthe  Covenanting  State shall devolve on the New  State\t and\nshall be discharged by it.  In accordance with that  Article\nthe  Rajpramukh\t took  over the administration\tof  jind  on\nAugust 20, 1948, and immediately after assumption of  office\npromulgated Ordinance No. 1 Of S. 2005, by s. 3 of which all\nlaws  in force in the State of Patiala were made  applicable\nmutatis\t mutandis  to the territories of the New  State\t and\nthat  all  laws\t in force in the  Covenanting  States  stood\nrepealed.   On\tNovember 24, 1949, the Rajpramukh  issued  a\nproclamation  accepting\t the Constitution of  India  and  on\nApril 13, 1950, the New State became a taxable territory  of\nthe Union of India.\n730\nThe  result of the constitutional changes was that  the\t law\nrelating to income-tax applicable to the appellant, for\t the\nperiod\tprior to August 20, 1948, was that of Jind, for\t the\nperiod\tAugust\t20,  1948, to April 13, 1950,  that  of\t the\nPatiala Income-tax Act and after April 13, 1950, the  Indian\nIncome-tax  Act\t ;  but the  appellant\tcontended  that\t the\nincome-tax  should  be\tlevied on him  as  provided  in\t the\nagreement  entered into with the Ruler of jind, dated  April\n1, 1938:\nHeld, (1) that S. 3 Of the Ordinance No. 1 Of S. 2005 on its\ntrue construction extinguished the right to tax\t concessions\nconferred  on the appellant under the agreement dated  April\n1,  1938,  and\tthat  the  appellant  cannot  rely  on\tthat\nagreement after August 20, 1948.\n(2)The\tCovenant  dated\t May 5, 1948, entered  into  by\t the\nRulers\tof  the States, is in whole and in parts an  act  of\nState  and Article VI cannot be relied on by  the  appellant\nfor the enforcement of the rights conferred on him under the\nagreement  with the Ruler of jind as against the  Rajpramukh\nof the new State,\nPer  S.\t R.  Das C. J., Venkatarama Aiyar,  S.\tK.  Das\t and\nGajendragadkar\t JJ.-When  a  treaty  is  entered  into\t  by\nsovereigns  of independent States whereunder sovereignty  in\nterritories  passes from one to the other,  clauses  therein\nproviding  for the recognition by the new sovereign  of\t the\nexisting  rights of the residents of those territories\tmust\nbe  regarded  as invested with the character of\t an  act  of\nState  and no claim based thereon could be enforced  in\t the\nmunicipal  courts  established by the new  sovereign  unless\nthose rights have been recognised by him.\nSecretary of State for India v. Bai Ralbai, (1915) L. R.  42\nI. A. 229, Vajasingji Joravarsingji and others v.  Secretary\nof State, (1924) L. R. 51 1. A. 357, Sccretary of  State  v.\nSardar\tRustam\tKhan,<\/a>  (1941) L. R. 68 1. A.  109,  Cook  v.\nSprigg, [1899] A. C. 572 and Hoani Te Heuheu Tukino v. Aotea\nDistrict Maori Land Board [1941] A. C. 308, relied on.\nPer  Bose  J.-International  opinion is\t divided  about\t the\neffect\tthat  a\t change\t of sovereignty\t has  on  rights  to\nimmoveable property and this decision must not be used as  a\nprecedent  in a case in which rights to immoveable  property\nare concerned.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELATE, JURISDICTION: Civil Appeal No.230 of  1954.
\nPetition No. 276 of 1953.\n<\/p>\n
Appeal\tfrom the judgment and order dated June 7,  1954,  of
\nthe former Pepsu High Court in Civil Misc.  No. 97 of  1953.
\nPetition  under Article 32 of the Constitution of India\t for
\nthe enforcement of fundamental rights.\n<\/p>\n
731<\/span><\/p>\n
G.S.   Pathak,\tVeda  Vyasa,  S.  K.  Kapur  and  J.   B.
\nDadachanji, for the appellants-petitioners.
\nH.   N.\t   Sanyal,    Additional    Solicitor-General\t  of
\nIndia,R.Ganapathi  Iyer, Raj Gopal Sastri and R. H.  Dhebar,
\nfor the respondents.\n<\/p>\n
1958.\tApril  28.   The  judgment  of\tS.  R.\tDas  C.\t J.,
\nVenkatarama  Aiyar,  S. K. Das and  Gajendragadkar  JJ.\t was
\ndelivered  by  Venkatarama  Aiyar J.  Bose  J.\tdelivered  a
\nseparate judgment.\n<\/p>\n
VENKATARAMA  AIYAR J.-Messrs. Dalmia Dadri Cement  Co.\tLtd.
\nwhich  is the appellant in Civil Appeal No. 230 of 1954\t and
\nthe  petitioner\t in Petition No. 276 of 1953,  is  a  public
\ncompany\t engaged in the manufacture and sale of cement at  a
\nplace called Dadri situate in what was once the\t independent
\nState of Jind.\tOn April 1, 1938, one Shanti Prasad Jain,  a
\npromoter of the above company, obtained certain\t concessions
\nfrom the Ruler of Jind under an agreement, Ex.\tA, and as it
\nis  this document that forms the basis of the present  claim
\nof the appellant, it is necessary to refer to the,  material
\nterms  thereof.\t Clause (1) of the agreement grants  to\t the
\nlicensee,  Shanti  Prasad  Jain,  the  sole  and   exclusive
\nmonopoly right of manufacturing cement in the Jind State and
\nfor that purpose he is authorised in Cl. (2) to win and work
\nall  quarries,\tstrata,\t seams and beds\t of  kankar,  rorey,
\nlimestone  or  other like materials “. Under  Cl.  (7),\t the
\nlicence is to last for a period of 25 years with option\t for
\nsuccessive  renewals.\tClause (10) requires that  a  public
\nlimited\t company should be formed before July 21,  1936,  to
\nwork  the concessions, and that it should be  registered  in
\nthe Jind State.\t Under Cl. (11), the State is to be allotted
\n6  per cent. cumulative preference shares fully paid  up  of
\nthe face value of rupees one lack and ordinary shares  fully
\npaid  up of the total face value of Rs. 50,000\twithout\t any
\npayment\t whatsoever.   Then  there are\tprovisions  for\t the
\npayment\t of  royalty  to the State and\tsale  of  cement  at
\nconcession  rates to local consumers.  Clause (23)  is\tvery
\nmaterial for the present dispute, and is as follows:\n<\/p>\n
93<\/span>
\n732<\/span><\/p>\n
” The Company shall be assessed to income-tax in  accordance
\nwith  the State procedure but the rate of  income-tax  shall
\nalways\tbe  four per cent. up to a limit of  the  income  of
\nrupees five lacs and five per cent. on such income as is  in
\nexcess\tof  rupees five lacs……….. Clause\t(24)  grants
\nexemption  from\t export, import and other  duties  excepting
\nconsmers.   Clause  (37)  provides  for\t settlement  of\t all
\ndisputes between the parties by arbitration.
\nIn  accordance with the terms set out above,  the  appellant
\ncompany was duly incorporated in the Jind State, and on\t May
\n27,  1938, Shanti Prasad Jain executed in its favour a\tdeed
\nagreeing  to  transfer\tall ”  his  rights,  privileges\t and
\nobligations ” under Ex.\t A. The appellant claims that it has
\nbecome in this wise entitled as assignee of the licensee  to
\nall  the benefits granted under Ex.  A. The  contention\t was
\nraised\tby the respondent that the deed dated May 27,  1938,
\ndoes  not  itself  purport to assign the  rights  under\t the
\nlicense,  Ex. A but merely agrees to do so, and that in\t the
\nabsence\t of  a further deed transferring those\trights,\t the
\nappellant  could not claim the rights of assignee.  But\t Cl.
\n(35)  expressly provides that ” the licensee shall  transfer
\nhis  rights to the proposed Company on its formation “,\t and
\nafter\tthe  appellant\twas  incorporated,  the\t State\t had
\nthroughout  recognised\tit  as the person  entitled  to\t the
\nrights and subject to the obligations under the license\t and
\nrealised  royalty and levied income-tax in  accordance\twith
\nthe  provisions of Ex.\tA. This objection was taken for\t the
\nfirst time only in the Writ Petition No. 276 of 1953 in this
\nCourt.\t It  is\t stated for the appellant-and  that  is\t not
\ncontroverted  for the respondent-that under the law of\tJind
\nState  an assignment need not be in writing, and that  being
\nso,  it\t is  open to us to infer such  assignment  from\t the
\nconduct\t of the parties.  We must accordingly  decide  these
\ncases on the footing that the rights under the license,\t Ex.
\nA,  dated April 1, 1938, had become vested in the  appellant
\nby assignment.\n<\/p>\n
On  August  15, 1947, India became independent, and  on\t the
\nsame  date,  the  Ruler\t of Jind  signed  an  Instrument  of
\nAccession ceding to the Government of India
\n733<\/span>
\npower to legislate with respect to Defence, External Affairs
\nand Communications.  On May 5, 1948, eight of the Rulers  of
\nStates in East Punjab including Jind entered into a Covenant
\nfor  the merger of their territories into one State,  called
\nthe Patiala and East Punjab States Union.  For brevity, this
\nState  will hereafter be referred to as the  Patiala  Union.
\nArticle VI of the Covenant on which the appellant relies  in
\nsupport of its claim is as follows:\n<\/p>\n
” The Ruler of each Covenanting State shall, as soon as\t may
\nbe  practicable,  and in any event not later than  the\t20th
\nAugust,\t 1948, make over the administration of his State  to
\nthe Raj Pramukh; and thereupon,\n<\/p>\n
(a)all\trights, authority and jurisdiction belonging to\t the
\nRuler  which appertain, or are incidental to the  Government
\nof  the Covenanting State shall vest in the Union and  shall
\nhereafter  be exercisable only as provided by this  Covenant
\nor by the Constitution to be framed thereunder;\n<\/p>\n
(b)all\tduties\tand obligations of the Ruler  pertaining  or
\nincidental to the Government of the Covenanting State  shall
\ndevolve on the Union and shall be discharged by it;\n<\/p>\n
(c)all the assets and liabilities of the Covenanting State ”
\nshall be the assets and liabilities of the Union; and\n<\/p>\n
(d)the\tmilitary  forces, if any, of the  Covenanting  State
\nshall become the military forces of the Union.”
\nArticle\t X  provides that a Constituent Assembly  should  be
\nformed\tas early as practicable, and that it should frame  a
\nConstitution for the State, and that until the\tConstitution
\nis  so framed, the Rajpramukh is to have power to  make\t and
\npromulgate  Ordinances for the peace and good government  of
\nthe  Union.  Under Art.\t XVI, the Union ” guarantees  either
\nthe  continuance in service of the permanent members of\t the
\npublic\tservices  of  each  of\tthe  Covenanting  States  on
\nconditions which will be not less advantageous than those on
\nwhich  they were serving on the 1st February, 1948,  or\t the
\npayment\t  of  reasonable  compensation\tor   retirement\t  or
\nproportionate pension.”\n<\/p>\n
734<\/span><\/p>\n
In accordance with Art.\t VI of the Covenant, the  Rajpramukh
\nof the Patiala Union took over the administration of Jind on
\nAugust 20, 1948, and immediately after assumption of office,
\nhe  promulgated\t the Patiala and East  Punjab  States  Union
\nAdministration Ordinance No. 1 of S. 2005.  Section 3 of the
\nOrdinance, which is material for the present discussion,  is
\nas follows:\n<\/p>\n
  ” As soon as the administration of any  covenanting  State
\nhas  been  taken over by the Raj Pramukh  as  aforesaid\t all
\nLaws,  Ordinances, Acts, Rules, Regulations,  Notifications,
\nHidayate  Firman-i-Shahi,  having force of  law\t in  Patiala
\nState  on the date of commencement of this  Ordinance  shall
\napply mutatis mutandis to the territories of the said  State
\nand  with  effect from that date all laws in force  in\tsuch
\nCovenanting  State  immediately before that  date  shall  be
\nrepealed:\n<\/p>\n
Provided  that proceedings of any nature whatsoever  pending
\non  such  date\tin  the\t courts\t or  offices  of  any\tsuch
\nCovenanting State shall, notwithstanding anything  contained
\nin  this Ordinance or any other Ordinance be disposed of  in
\naccordance with the laws governing such proceedings in force
\nfor the time being in any such Covenanting State.”
\nThis  Ordinance\t came  into force on August  20,  1948.\t  On
\nFebruary 5, 1949, it was repealed and replaced by  Ordinance
\nNo. XVI of S. 2006, s. 3(a) whereof being in the same  terms
\nas s. 3 of Ordinance No. 1 of 8. 2005.\n<\/p>\n
Article\t  X(1)\tof  the\t Covenant  provided,  as  has\tbeen
\nmentioned,  for the framing of a Constitution for the  Union
\nin  the\t manner\t provided therein.  That,  however  did\t not
\nmaterialise, and on November 24, 1949, the Rajpramukh issued
\na proclamation accepting the Indian Constitution as that  of
\nthe Patiala Union, and thus, the Union became a Part B State
\nunder  the  Constitution.  On April 13,\t 1950,\tthe  Patiala
\nUnion accepted the Federal Financial Integration Scheme, and
\nbecame\ta  taxable territory of the Union of India  and\t the
\nIndian Finance Act, 1950, became applicable to it from April
\n13,  1950.   The  position, therefore, is  that\t as  regards
\nliability to be assessed to income-tax
\n735<\/span>
\nwhich  is what we are concerned with in\t these\tproceedings,
\nthe law applicable to the appellant for the period prior  to
\nAugust\t20, 1948, was the income-tax law of’ Jind,  for\t the
\nperiod\tAugust\t20,  1948, to April 13,\t 1950,\tthe  Patiala
\nIncome-tax  Act,  S.  2001,  which  came  into\tforce  under
\nOrdinance  No.\t1 of S. 2005 and after April 13,  1950,\t the
\nIndian Income-tax Act.\n<\/p>\n
Civil  Appeal No. 230 of 1954 arises out of proceedings\t for
\nassessment  of\tincome-tax for the year 1949-1950.   By\t its
\norder  dated November 11, 1952, the Appellate  Tribunal\t has
\nfound that the taxable profits of the appellant for the year
\nof account which is the calendar year 1948 was Rs. 1,94,265,
\nand  that  finding is not now in dispute.   The\t substantial
\npoint  now  in controversy is as to the rate  at  which\t tax
\nshould\tbe levied on that amount, whether it should be\twhat
\nis  enacted in the Patiala Income-tax Act as  contended\t for
\nthe  respondent,  or  what is provided in Cl.  (23)  of\t the
\nagreement,  Ex.\t  A, as claimed by the appellant.   On\tthis
\nquestion, the Appellate Tribunal held that the Patiala Union
\nwhich  was  a new State that had come into  existence  as  a
\nresult\tof  the\t Covenant was not bound\t by  the  agreements
\nentered\t into  previously by the rulers of  the\t Covenanting
\nStates,\t that the appellant could claim the benefit of\tthat
\nagreement  only\t if the new State chose to recognise  it,  ”
\nthat there had been, in fact, no such recognition, and that,
\nin  consequence, the tax was leviable as prescribed  in\t the
\nPatiala Income-tax Act, S. 2001.  On the application of\t the
\nappellant,  the\t Tribunal  referred under s.  66(1)  of\t the
\nIndian\tIncome-tax  Act,  the  following  question  for\t the
\nopinion of the High Court:\n<\/p>\n
”  Whether the asseessee’s profits and gains earned  in\t the
\ncalendar year 1948 were assessable for S. 2006 (1949-50)  at
\nthe  rates in force according to the Patiala Income-Tax\t Act
\nof S. 2001 read with section 3 of the Patiala & East  Punjab
\nStates\tUnion Administration Ordinance (No.  1 of S.  2005),
\nas  repealed  and re-enacted in section 3 of the  Patiala  &
\nEast Punjab States Union General Provisions (Administration)
\nOrdinance  (No.\t XVI of 2006), or in accordance with  clause
\n(23) of the agreement of April, 1938 above referred to,”\n<\/p>\n
736<\/span><\/p>\n
By their judgment dated June 7, 1954, the learned ,Judges of
\nthe High Court answered the question against the  appellant,
\nbut granted a certificate under s. 66(A)(2)  of\t the  Indian
\nIncome-tax Act, and that is   how  Civil Appeal No.  230  of
\n1954  comes before us.\n<\/p>\n
Meantime,   proceedings\t  were\ttaken  by   the\t  Income-tax
\nauthorities  for assessment of tax for years  subsequent  to
\n1949-1950,  and\t the dispute again related to  the  question
\nwhether the amount of tax should be determined in accordance
\nwith  Cl.  (23) of Ex.\tA or the provisions  of\t the  Indian
\nIncome-tax  Act,  1922.\t  The  Income-tax  Officer,  Rohtak,
\nrejected the contention of the appellant that it was  liable
\nto  pay\t tax  only in accordance with.\tEx.   A\t and  passed
\norders\tdetermining  the  tax under the\t provisions  of\t the
\nIndian\tIncometax  Act for the year 1950-1951 on  April\t 28,
\n1952,  for 1951-1952 on May 12, 1952, and for  1952-1953  on
\nMarch  17,  1953.  Appeals against these  orders  have\tbeen
\npreferred  by  the  appellant, and they\t are  stated  to  be
\npending before the Appellate Assistant Commissioner.  On the
\nallegation  that the tax as imposed in the orders  aforesaid
\nis  unauthorised,  and\tthat  it  constitutes  an   unlawful
\ninterference with its rights to carry on business guaranteed
\nunder  Art. 19(1)(g), the appellant has filed  Petition\t No.
\n276   of  1953\tfor  an\t appropriate  writ   directing\t the
\nrespondents  to levy tax in accordance with  the  agreement,
\nEx.   A, dated April 1, 1938.  In support of this  petition,
\nin  addition to the contentions raised in Civil\t Appeal\t No.
\n230 of 1954 the petitioner also urges that even if the Union
\nof India is entitled to repudiate the agreement dated  April
\n1,  1938, it has not, in fact, done so, and that it has,  on
\nthe  other hand, recognised it as good and is therefore\t not
\nentitled now to go back upon it, and that the levy of tax in
\naccordance with the provisions of the Indian Income-tax\t Act
\nis  accordingly illegal.  As the contentions raised  in\t the
\nappeal and in the petition are substantially identical, they
\nwere heard together.\n<\/p>\n
Before\tus, the validity of the assessment of incometax\t for
\nthe  year  1949-1950  was challenged by Mr.  Pathak  on\t the
\nfollowing grounds:\n<\/p>\n
737<\/span><\/p>\n
(1)Ordinance  No.  1 of S. 2005 under  which  the  Patiala
\nIncome-tax Act Act is sought to be applied -to the appellant
\ndoes  not,  on\tits true  construction,\t annul’\t the  rights
\ngranted under Ex.  A.\n<\/p>\n
(2)If  the  Ordinance in question is to\t be  construed\tas
\nhaving that effect, then it is in contravention of Art.\t  VI
\nof the Covenant, and is therefore unconstitutional and void.
\n(3)Even apart from the Covenant, the agreement, Ex. A,\tis
\nbinding\t on the Patiala Union and the impugned Ordinance  is
\nbad as infringing it; and
\n(4)the\tPatiala Union had, in fact, recognised the  rights
\ngranted\t under Ex.  A and it is therefore binding on it,  as
\nif it were a contract entered into by itself.
\n(1)On  the first question, the argument of Mr.\tPathak\tis
\nthis:  The  Ruler of Jind was an absolute monarch,  and\t his
\nword was law.  The agreement, Ex. A, must therefore be\theld
\nto  be\ta  special law conferring rights  on  the  licensee.
\nSection\t 3  of\tOrdinance  No. 1 of S.\t2005  is  a  general
\nprovision extending all laws of the State of Patiala to\t the
\nterritories   of  the  Covenanting  States.   The  rule\t  of
\nconstruction  is  well\testablished  that  general  statutes
\nshould\tbe  interpreted so as not to interfere\twith  rights
\ncreated\t tinder\t special laws.\tSection 3 of  the  Ordinance
\nshould therefore be construed as not intended to affect\t the
\nrights\tconferred  under Ex.  A. Reliance is placed  on\t the
\nstatement   of\tthe  law  in  Maxwell’s\t Interpretation\t  of
\nStatutes,   10th  Edn.,\t pp.  176  and\t180,  and   on\t the
\nobservations  in Blackpool Corporation v. Starr\t Estate\t Co.
\n(1).   Now the rule of construction expressed in  the  maxim
\ngeneralia   specialibus\t  non  derogant\t is   well   settled
\nand we shall also assume in favour of the appellant that the
\nagreement,  Ex.\t  A,  is a special law in the  nature  of  a
\nprivate\t Act  passed  by the British  Parliament,  and\tthat
\naccordingly  s. 3 of the Ordinance should not be  construed,
\nunless\tthe  contrary  appears\texpressly  or  by  necessary
\nimplication,  as  repealing the provisions of  Ex.   A.\t But
\nultimately,  the question is what does the language  of\t the
\nenactment mean ? Section 3 is quite explicit, and
\n(1)[1922] 1 A. C. 27, 34.\n<\/p>\n
738<\/span><\/p>\n
it  provides that from the date of the commencement  of\t the
\nOrdinance  ”  all laws in force in such\t Covenanting  States
\nimmediately  before that date shall be repealed “,  and\t the
\nproviso\t further enacts that pending proceedings are  to  be
\ndisposed  of in accordance with laws in force for  the\ttime
\nbeing,\tin  the\t Covenanting States.  In the  face  of\tthis
\nlanguage  which\t is  clear and unqualified, it\tis  idle  to
\ncontend that Ordinance No. 1 of S. 2005 saves the rights  of
\nthe  appellant to the tax concessions under Cl. (23) of\t Ex.
\nA.\n<\/p>\n
(2)It is next contended by Mr. Pathak that if Ordinance\t No.
\n1  of S. 2005 is to be construed as extinguishing the  right
\nto concessions conferred under Ex.  A, then it must be\theld
\nto  be unconstitutional and void.  This contention is  based
\non  Art.   VI (b) of the Covenant, which provides  that\t the
\nobligations  of\t the rulers pertaining to or  incidental  to
\ngovernment  of\tthe Covenanting State shall devolve  on\t the
\nUnion and be discharged by it.\tIt is argued that the  Ruler
\nof  Jind had for good and valuable consideration  undertaken
\ncertain obligations under Cl. (23) of Ex.  A with  reference
\nto  taxation which is a governmental function, that  he\t had
\nhimself\t scrupulously  honoured\t them so long as  he  was  a
\nRuler, and then passed them on under Art.  VI (b) to the new
\nState  created under the Covenant, that the  Rajpramukh\t who
\nwas  a party to the Covenant and claimed under it was  bound
\nby that obligation, that his power to enact laws is  subject
\nunder Art.  VI (a) to the obligations mentioned in Art.\t  VI\n<\/p>\n
(b), and that the impugned law is, if it is to be  construed
\nas having the effect of abrogating those obligations,  ultra
\nvires his powers under the Covenant and is, in\tconsequence,
\nvoid.\tIn answer to this, the respondent contends that\t the
\nCovenant  entered into by the rulers is an act of State\t and
\nthat  any violation of its terms cannot form the subject  of
\nany  action  in the municipal courts, that  the\t obligations
\nmentioned  in  Art.  VI (b) refer not to  liabilities  under
\nagreements for which there was special provision in Art.  VI\n<\/p>\n
(c) but to obligations of the character contemplated by\t the
\nInstrument of Accession, and that, in any event, the  rights
\ngranted to the – licensee under Ex.  A were
\n739<\/span>
\nterminable  by\tthe  Ruler of Jind at  will,  and  that,  in
\nconsequence,  if the obligation under Cl. (23)\tdevolved  on
\nthe Raj Pramukh under Art.  VI (b) it did so subject’ to his
\nrights\tunder Art.  VI (a) to terminate it if he so  willed,
\nand  that, therefore, the impugned law did not violate\tArt.
\nVI (b).\n<\/p>\n
The  question  that arises for our decision is\twhether\t the
\nCovenant was an act of State.  On that, there can be no\t two
\nopinions.   It\twas  a\ttreaty entered\tinto  by  rulers  of
\nindependent States, by which they gave up their\t sovereignty
\nover  their  respective territories, and vested\t it  in\t the
\nruler  of a new State.\tThe expression ” act of State ”\t is,
\nit  is\tscarcely necessary to say, not\tlimited\t to  hostile
\naction\tbetween\t rulers\t resulting  in\tthe  occupation\t  of
\nterritories.  It includes all acquisitions of territory by a
\nsovereign  State  for  the  first time,\t whether  it  be  by
\nconquest  or  cession.\tVide Vajesingji Joravar\t Singji\t and
\nothers\tv. Secretary of State (1) and Thakur Amar Singji  v.
\nState  of  Rajasthan  (2).  And on principle,  it  makes  no
\ndifference  as\tto  the nature of the  act,  whether  it  is
\nacquisition  of new territory by an existing State or as  in
\nthe   present  case,  formation\t of  a\tnew  State  out\t  of
\nterritories  belonging to quondam States.  In  either  case,
\nthere is establishment of new sovereignty over the territory
\nin question, and that is an act of State.\n<\/p>\n
Mr. Pathak did not contest the position that the Covenant in
\nso far as it provided for the extinction of the\t sovereignty
\nof   the   rulers  of  the  Covenanting\t  States   and\t the
\nestablishment  of  a new State is an act of State.   But  he
\ncontended that it was much more than that, that it was\talso
\nin  the\t nature of a Constitution for the new State  in\t the
\nsense  that it is a law under which all the  authorities  of
\nthe  new  State including the Raj Pramukh had  to  act.\t  In
\nsupport\t of  this contention he referred to Art.   X,  which
\nprovided for the convening of a Constituent Assembly for the
\nframing of the Constitution, and argued that the Articles of
\nthe  Covenant which provided for the administration  of\t the
\nState by the Rajpramukh were in the nature of an interin
\n(1)(1924) L. R. 51 I. A. 357, 360.\n<\/p>\n
94<\/span><\/p>\n
(2) [1955] 2 S.C.R. 303, 335.\n<\/p>\n
740<\/span><\/p>\n
Constitution.  He also relied on Art.  XVI, which guaranteed
\nthe rights of the permanent members of\tthe public  services
\nin  the\t Covenanting States to continuance in  service,\t and
\ncontended that this could not be regarded as an act of State
\nbut only as a law relating to the administration of the\t new
\nState.\t In this view of the Covenant, he argued,  Art.\t  VI
\nmust  be held to be a constitutional provision\tenacted\t for
\nthe  protection\t of private rights, that it was,  in  conse-
\nquence, binding on the ruler of the new State, and that\t the
\nmunicipal courts were competent to grant appropriate reliefs
\nfor the breach thereof.\n<\/p>\n
This  argument proceeds, in our view, on a misconception  as
\nto  what is an act of state and what is a law of  the  State
\nconferring rights on the subject, or, as the learned counsel
\nfor  the  appellant termed it, Constitution  of\t the  State.
\nWhen the sovereign of a Statemeaning by that expression, the
\nauthority  in which the sovereignty of the State is  vested,
\nenacts a law which creates, declares or recognises rights in
\nthe subjects, any infraction of those rights would be action-
\nable  in the courts of that State even when that  infraction
\nis by the State acting through its officers.  It would be no
\ndefence to that action that the act complained of is an\t act
\nof state, because as between the sovereign and his  subjects
\nthere  is  no  such  thing as an act of\t state,\t and  it  is
\nincumbent on his officers to show that their action which is
\nunder challenge is within the authority conferred on them by
\nlaw.  Altogether different considerations arise when the act
\nof  the\t sovereign has reference not to the  rights  of\t his
\nsubjects  but  to acquisition of  territories  belonging  to
\nanother sovereign. That\t is  a matter  between\tindependent
\nsovereigns,and\tany  dispute arising therefrom\tmust  be
\nsettled byrecourse  not\t to  municipal\tlaw  of\t either
\nStates but to diplomatic action, and that failing, to force.
\nThat  is  an act of state pure and simple, and that  is\t its
\ncharacter  until the process of acquisition is completed  by
\nconquest  or cession.  Now, the status of the  residents  of
\nthe  territories  which\t are thus  acquired  is\t that  until
\nacquisition is completed as aforesaid they are the  subjects
\nof the ex-sovereign of those territories
\n741<\/span>
\nand   thereafter  they\tbecome\tthe  subjects  of  the\t new
\nsovereign.  It is also well established that in the new set-
\nup these residents do not carry with them the, rights  which
\nthey possessed as subjects of the ex-sovereign, and that  as
\nsubjects  of the new sovereign, they: have only such  rights
\nas  are\t granted or recognised by him.\t Vide  Secretary  of
\nState for India v. Bai Rajbai (1), Vajesingji Joravar Singji
\nand others v. Secretary of State (2), Secretary of State  v.
\nSardar Rustam Khan<\/a> (3) and Asrar Ahmed v. Durgah  Committee,
\nAjmer (4).  In law, therefore, the process of acquisition of
\nnew  territories is one continuous act of state\t terminating
\non  the assumption of sovereign powers de jure over them  by
\nthe  new  sovereign and it is only  thereafter\tthat  rights
\naccrue to the residents of those territories as subjects  of
\nthat sovereign.\t In other words, as regards the residents of
\nterritories   which  come  under  the  dominion\t of  a\t new
\nsovereign,  the right of citizenship commences when the\t act
\nof state terminates and the two therefore cannot co-exist.
\nIt follows from this that no act done or declaration made by
\nthe  new  sovereign  prior to his  assumption  of  sovereign
\npowers over acquired territories can quoad the residents  of
\nthose  territories be regarded as having the character of  a
\nlaw  conferring on them rights such as could be agitated  in
\nhis courts.  In accordance with this principle, it has\tbeen
\nheld  over and over again that clauses in a  treaty  entered
\ninto by independent rulers providing for the recognition  of
\nthe rights of the subjects of the ex-sovereign are incapable
\nof enforcement in the courts of the new sovereign.  In\tCook
\nv. Sprigg (5), the facts were that the ruler of Pondoland in
\nAfrica\thad  granted certain concessions in  favour  of\t the
\nappellants  and subsequently ceded those territories to\t the
\nBritish Government.  The latter having declined to recognise
\nthose concessions, the appellants sued for a declaration  of
\ntheir  rights thereunder, and the question was whether\tthey
\nhad  a\tright  of action in respect of what was\t an  act  of
\nState.\tOne of the contentions
\n(1)  (1015) L.R. 42 I.A. 229.\n<\/p>\n
(3)  (1941) L.R. 68 I.A. 109.\n<\/p>\n
(2)  (1924) L. R. 51 T.A. 357, 360.\n<\/p>\n
(4)  A.I.R. 1947 P.C. 1.\n<\/p>\n
(5)   [1899] A.C. 572,578.\n<\/p>\n
742<\/span><\/p>\n
urged on their behalf was that the ruler of Pondoland had at
\nthe time of cession of his territories expressed his  desire
\nto the British Government that the concessions in favour  of
\nthe   appellants   should  be  recognised   and\t  that,\t  in
\nconsequence,  the appellants had the right to  enforce\tthem
\nagainst\t the new Government.  In rejecting this\t contention,
\nthe Lord Chancellor observed:\n<\/p>\n
”  The taking possession by Her Majesty, whether by  cession
\nor by any other means by which sovereignty can be  acquired,
\nwas  an act of state and treating Sigcau as  an\t independent
\nsovereign-which\t the  appellants  are  compelled  to  do  in
\nderiving title from him.  It is a well-established principle
\nof  law that the transactions of independent States  between
\neach  other  are  governed by other laws  than\tthose  which
\nmunicipal courts administer.”\n<\/p>\n
“It  is no answer to say that by the ordinary principles  of
\ninternational  law  private  property is  respected  by\t the
\nsovereign  which accepts the cession and assumes the  duties
\nand  legal obligations of the former sovereign with  respect
\nto  such private property within the ceded  territory.\t All
\nthat  can  be properly meant by such a proposition  is\tthat
\naccording to the well-understood rules of international\t law
\na  change  of  sovereignty by cession ought  not  to  affect
\nprivate property, but no municipal tribunal has authority to
\nenforce\t such  an  obligation.\tAnd if there  is  either  an
\nexpress\t or  a well-understood bargain\tbetween\t the  ceding
\npotentate  and the Government to which the cession  is\tmade
\nthat  private  property shall be respected, that is  only  a
\nbargain\t which\tcan  be enforced by  sovereign\tagainst\t the
\nsovereign in the ordinary course of diplomatic pressure.”
\nIn  Vajesingji\tJoravar Singji and others  v.  Secretary  Of
\nState for India (1), the dispute related to the title of the
\nappellants  to certain lands situated in the  Panch  Mahals.
\nThis  area  formed at one time part of the dominion  of\t the
\nScindias  of  Gwalior,\tand  it was  ceded  to\tthe  British
\nGovernment by treaty on December 12, 1860.  Clauses (2)\t and
\n(3) of the treaty provided for
\n(1)(1924) L.R. 51 I.A. 357, 360.\n<\/p>\n
743<\/span><\/p>\n
the  recognition  by  the new sovereign\t of  rights  of\t the
\nresidents  under existing leases, jagirs and the like.\t The
\ncomplaint  of  the appellants was that in 1907\tthe  British
\nGovernment had proposed to lease the lands to them on  terms
\nwhich infringed their proprietary rights, and that this\t was
\nin  violation of the rights which had been guaranteed  under
\nCls.  (2)  and (3) of the treaty, and was,  in\tconsequence,
\nbad.   The answer of the Government was that the  treaty  in
\nquestion was an act of state and conferred no rights on\t the
\nappellants.   In  upholding this  contention,  Lord  Dunedin
\nobserved:\n<\/p>\n
” When a territory is acquired by a sovereign state for\t the
\nfirst time that is an act of state.  It matters not how\t the
\nacquisition has been brought about.  It may be by  conquest,
\nit  may\t be  by cession following on treaty, it\t may  be  by
\noccupation of territory hitherto unoccupied by a  recognised
\nruler.\tIn all cases the result is the same.  Any inhabitant
\nof  the\t territory  can make good in  the  municipal  courts
\nestablished  by the new sovereign only such rights  as\tthat
\nsovereign  has,\t through  his  officers,  recognized.\tSuch
\nrights\tas he had under the rule of predecessors  avail\t him
\nnothing.   Nay\tmore, even if in a treaty of cession  it  is
\n,stipulated  that certain inhabitants should  enjoy  certain
\nrights,\t that does not give a title to those inhabitants  to
\nenforce\t these\tstipulations in the municipal  courts.\t The
\nright  to  enforce remains only with  the  high\t contracting
\nparties.”\n<\/p>\n
In Hoani Te Heuheu Tukino v. Aotea District Maori Land Board
\n(1),  the  question arose with reference to  the  Treaty  of
\nWaitangi  entered  into by the British Government  with\t the
\nnative chiefs of New Zealand in 1840.  Under cl. (1) of\t the
\nTreaty,\t there was a complete cession by the chiefs  of\t all
\ntheir\trights\tand  powers  of\t sovereignty.\tClause\t (2)
\nguaranteed  to\tthe chiefs, the tribes\tand  the  respective
\nfamilies  and individuals certain rights in  lands,  forests
\nand  fisheries.\t  In 1935, the Legislature  of\tNew  Zealand
\nenacted\t a  law, the provisions of which  were\timpugned  as
\nultra vires on the ground that they infrigned the rights
\n(1)  [1941] A.C. 308.\n<\/p>\n
744<\/span><\/p>\n
protected by cl. (2) of the Treaty of Waitangi.\t In  holding
\nthat  the  rights under the Treaty furnished no\t ground\t for
\naction in the civil courts, Viscount Simon L. C. referred to
\nthe  decision  in Vajesingji Joravar Singji  and  others  v.
\nSecretary of State (1) and observed :\n<\/p>\n
”  So  far as the appellant invokes the\t assistance  of\t the
\ncourt,\tit  is clear that he cannot rest his  claim  on\t the
\nTreaty of Waitangi, and that he must refer the court to some
\nstatutory recognition of the right claimed by him.”
\nThe result of the authorities then is that when a treaty  is
\nentered into by sovereigns of independent States  whereunder
\nsovereignty  in\t territories passes from one to\t the  other,
\nclauses\t therein  providing for the recognition by  the\t new
\nsovereign  of the existing rights of the residents of  those
\nterritories must be regarded as invested with the  character
\nof  an\tact  of state and no claim based  thereon  could  be
\nenforced  in a court of law.  It must follow from this\tthat
\nthe  Covenant in question entered into by the rulers of\t the
\nCovenanting  States is in its entirety an act of state,\t and
\nthat  Art.   VI\t therein cannot operate\t to  confer  on\t the
\nappellant  any\tright as against the  Patiala  Union.\tThis
\nconclusion  becomes  all  the more impregnable\twhen  it  is
\nremembered that the Covenant was signed by the rulers on May
\n5,  1948,  whereas  the new state came into  being  only  on
\nAugust\t20,  1948.   In\t the  decisions\t cited\tabove,\t the
\nsovereign against whom the obligations created by the treaty
\nwere  sought  to  be enforced was  the\tvery  sovereign\t who
\nentered\t into that treaty or his successor.  But  here,\t the
\nruler  of the Patiala Union against whom Art.  VI is  sought
\nto  be\tenforced  was not a party to the  Covenant  at\tall,
\nbecause that State had not come into existence on that date.
\nThe  person  who signed the Covenant was the  ruler  of\t the
\nState  of Patiala which was one of the\tCovenanting  States,
\nbut  that  State  as well as the seven\tother  States  which
\nentered\t into  the Covenant stood all of them  dissolved  on
\nAugust 20, 1948, when the new Patiala Union came into being.
\nThe new State could not and did not enter into any  covenant
\nbefore\tAugust\t20, 1948, and therefore, in  strictness,  it
\ncannot be
\n(1)  (1924) L.R. 511.  A. 357, 360.\n<\/p>\n
745<\/span><\/p>\n
held to be bound by Art.  VI, to which it was not a party.
\nConsiderable  emphasis\twas laid for the appellant  on\tArt.
\nXVI  of\t the Covenant under which the Union  guaranteed\t the
\ncontinuance  of the service of permanent members  of  public
\nservices, and this ‘was relied on as showing that the rights
\nof  the subjects of the quondam States were intended  to  be
\nprotected.   This argument is sufficiently answered by\twhat
\nwe have already observed, namely, that a clause in a  treaty
\nbetween\t high contracting parties does not confer any  right
\non  the subjects which could be made the  subject-matter  of
\naction\tin  the courts, and that the Patiala  Union  is\t not
\nbound by it, because it was not a party to the Covenant.  It
\nshould,\t however, be mentioned that after the  formation  of
\nthe new State oil August 20, 1948, the first legislative act
\nof the sovereign was the promulgation of Ordinance No. 1  of
\nS. 2005, and s. 4 thereof expressly recognises the rights of
\nthe permanent members of public services.  That\t undoubtedly
\nis  a law enacted by the sovereign conferring rights on\t his
\nsubjects and enforceable in a court of law, but at the\tsame
\ntime  the enactment of such a law serves to  emphasise\tthat
\nthe  Articles  have not in themselves the force of  law\t and
\nwere  not intended to create or recognise rights.   In\tthis
\nconnection, reference should also be made to cl.  XVI of the
\nOrdinance which enacts that ” the provisions of articles  XV
\nand  XVII  of the Covenant relating to the  bar\t of  certain
\nsuits and proceedings shall have the force of law.”
\nIn  support of his contention that Art.\t VI of the  Covenant
\nis to be regarded as a Constitutional provision, counsel for
\nthe appellant relied on certain passages in the judgment  of
\nthis  Court in Thakur Amar Singji v. State of Rajasthan\t (1)
\nat  pp. 313 and 315 wherein a similar covenant entered\tinto
\nby the rulers of Rajasthan was described as a  Constitution.
\nApart  from  the use of the word ” Constitution “,  we\tfind
\nnothing in these passages which has any bearing on the point
\nnow under consideration.  There, the question was as regards
\nthe vires of a law enacted by
\n(1)[1955] 2 S.C.R. 303.\n<\/p>\n
746<\/span><\/p>\n
the Rajpramukh of Rajasthan, and that depended on whether he
\nwas  the authority in whom the legislative authority of\t the
\nState  was  vested within Art. 385.  This  Court  held\tthat
\nunder  the Covenant it was the Rajpramukh who had the  power
\nto  enact  laws, and that the Ordinance issued\tby  him\t was
\ntherefore  valid,  and\tit  was in  that  context  that\t the
\ncovenant  was referred to as a Constitution.  We had not  to
\nconsider there the question whether the Covenant was an\t act
\nof state, or whether it was a law conferring on the citizens
\nof  the\t defunct States rights which were enforceable  in  a
\ncourt  of  law.\t No such question arose\t for  decision,\t and
\ntherefore the description of the Covenant as a\tConstitution
\ncannot\tbe  read as importing a decision that it  is  a\t law
\nconferring  rights and not an act of state.  In the  result,
\nwe hold that the Covenant is in whole and in parts an act of
\nstate, that Art.  VI therein does not operate to confer\t any
\nrights on the subjects of the Covenanting States as  against
\nthe  sovereign of the new State constituted thereunder,\t and
\nthat Ordinance No. 1 of S. 2005 is, in consequence, not open
\nto attack as being a violation of Art.\tVI.\n<\/p>\n
(3)We  shall now consider the contention of the\t appellant
\nthat even apart from Art.  VI of the Covenant, the  impugned
\nOrdinance  No.\t1 of S. 2005 is bad in so far as  it  annuls
\nrights\tgranted\t by the Ruler of Jind  under  the  agreement
\ndated  April 1, 1938.  It was argued that Ex.  A was  not  a
\nmere concession which could be withdrawn by the sovereign at
\nhis will and pleasure, but that it was an agreement  entered
\ninto  for valuable consideration and creating mutual  rights
\nand  obligations,  that\t the appellant had,  acting  on\t the
\nagreement, allotted to the State shares of the value of\t Rs.
\n1,50,000  without  payment  and\t had  incurred\tconsiderable
\nexpense in working the concessions, and that, therefore,  it
\nwas  not open to the Patiala Union to go back upon it.\t The
\ndecisions  in The Piqua Branch of the State Bank of Ohio  v.
\nKnoop  (1)  and\t Home of the Friendless v.  Rouse  (2)\twere
\nrelied on as authorities for the proposition that a State is
\nnot   competent\t  to  revoke  a\t grant\tmade   by   it\t for
\nconsideration.\n<\/p>\n
(1) (1853) 14 L. Ed. 977,
\n(2) (1869) 19 L. Ed- 495.\n<\/p>\n
747<\/span><\/p>\n
In The Piqua Branch of the State Bank of Ohio v. Knoop\t(1),
\na law of the State of Ohio of the year 1845 had provided for
\nthe incorporation of Banks and it contained provisions as to
\nthe  taxes  payable  by them to the State and  the  mode  of\n<\/p>\n
-payment.   In\t1851 another Act was passed, the  effect  of
\nwhich  was to increase the tax payable and the\tvalidity  of
\nthis Act was questioned by a Bank incorporated under the Act
\nof 1845.  It was held by the majority of the Court that\t the
\nAct  of 1845 was a legislative contract, and that the  State
\nLegislature was not competent to impair the rights which had
\nbeen   acquired\t under\tthat  contract.\t  In  Home  of\t the
\nFriendless  V.\tRouse (2), a Society called the Home of\t the
\nFriendless  was established under a charter granted  by\t the
\nState  of  Missouri.   The charter  had\t provided  that\t the
\nproperties  of\tthe Society shall be exempt  from  taxation.
\nSubsequently, the State proposed to withdraw the  concession
\nand  impose  tax.  It was held by the Supreme Court  of\t the
\nUnited\tStates that the charter was a contract entered\tinto
\nbetween\t the  State and the Society, and that there  was  no
\npower in the State to go behind it.\n<\/p>\n
Now,  it should be observed that the decisions\tcited  above
\nwere given on S. 10 of Art.  1 of the American\tConstitution
\nthat  ” no State shall pass a law impairing the\t obligations
\nof  contracts “. There is, in our Constitution,\t no  similar
\nprovision  protecting  contractual  rights,  and  it   would
\ntherefore  be  unsafe  to rely on  American  authorities  in
\ndeciding  on  the validity of legislation  which  interferes
\nwith  rights under contracts.  And moreover, we are  dealing
\nwith  a contract entered into by a sovereign,  whose  powers
\nwere not subject to any constitutional limitation, and whose
\nword  was, as contended for the appellant, law.\t  But  apart
\nfrom  this,  there  is\tan  obvious  reason  why  the  above
\ndecisions  have no application to the  present\tcontroversy.
\nThe  point for decision there was whether a State which\t had
\nentered into a contract with its subjects conferring  rights
\non them was entitled to enact a law abridging or  abrogating
\nthose rights,
\n(1)  (1853) 14 L. Ed. 977.\n<\/p>\n
(2) (1869) 19 L. Ed. 495.\n<\/p>\n
95<\/span>
\n748<\/span><\/p>\n
and the answer was in the negative.  But here, the ,impugned
\nlaw  is that of the Patiala Union and the contract which  it
\naffects\t is  not a contract entered into by it\tbut  by\t the
\nRuler  of  Jind and unless it can be  established  that\t the
\nobligations  of the Ruler have devolved on the sovereign  of
\nthe  Patiala Union, the question whether he could  repudiate
\nobligations undertaken by him cannot arise.  That would have
\narisen\tfor  consideration  if Art.  VI had  the  effect  of
\nimposing  obligations on him.  But on our finding that\tthat
\nis not its effect, there is no scope for the contention that
\nthe  impugned  Ordinance  is  bad  as  involving  breach  of
\ncontractual  obligations,  which were entered  into  by\t the
\nPatiala Union, or which devolved on it.\n<\/p>\n
(4)Lastly,  we\thave to deal with the  contention  of  Mr.
\nPathak\tthat the Patiala Union had affirmed  the  agreement,
\nEx.   A, that, in consequence, it was bound by it as  if  it
\nhad  itself entered into it, and that the liability  of\t the
\nappellant  to income-tax should therefore be  determined  in
\naccordance with Cl. (23) thereof.  This contention would  be
\nirrefragable  if the Patiala Union had, as a fact,  affirmed
\nthe agreement.\tBut has that been established ? It has\tbeen
\nalready observed that the rights of the appellant under\t Ex.
\nA  would  become  enforceable  only if\tthe  new  State\t had
\naccorded  recognition  to  them,  and  what  is\t  requisite,
\ntherefore, is a declaration or conduct of the Patiala  Union
\nsubsequent  to\tits  formation which could  be\tregarded  as
\namounting  to  affirmation of Ex.  A. Of that, there  is  no
\nevidence  whatsoever.  On the other hand, the first  act  of
\nthe  Rajpramukh\t after assumption of office by him  was\t the
\npromulgation  of Ordinance No. 1 of S. 2005, the  effect  of
\nwhich  was to sweep away the rights of the  appellant  under
\nCl.  (23)  of  Ex.  A. It was argued that Art.\t VI  of\t the
\nCovenant  would\t at least be valuable  evidence\t from  which
\naffirmance of those rights could be inferred.  That is so  ;
\nbut that inference must relate to act or conduct of the\t new
\nState,\tand that can only be after its formation  on  August
\n20,  1948.   If there were any acts of the new\tState  which
\nwere equivocal in character, it would have been possible  to
\nhold in the light of Art.  VI of the
\n749<\/span>
\nCovenant that its intention was to affirm the concessions in
\nCl.  (23)  of  Ex.  A. But the act  of\tthe  new.  sovereign
\nimmediately after he became in titulo was the application of
\nthe Patiala State laws including the Patiala Income-tax\t Act
\nto  the\t territories  of Jind involving\t negation  of  those
\nrights.\t  It was said that the levy of income-tax for  1948-
\n1949 was made in accordance with Ex.  A, but that relates to
\na  period anterior to the formation of the new State and  is
\nwithin\tthe  saving enacted in the proviso to s.  3  of\t the
\nOrdinance.   The  appellant has failed to  substantiate\t his
\nplea that there has been affirmance of Cl. (23) of Ex. A  by
\nthe  Patiala State Union, and this point also must be  found
\nagainst it.\n<\/p>\n
All the contentions urged in support of the appeal fail, and
\nit must therefore be dismissed with costs.
\nComing next to Petition No. 276 of 1953, in addition to\t the
\ncontentions  already dealt with, the petitioner\t urged\tthat
\nwhatever its rights under the law prior to the Constitution,
\nwhen  once it came into force it conferred on  the  citizens
\ncertain\t fundamental rights, that the tax concessions  which
\nthe petitioner had under the agreement, Ex.  A, were  rights
\nto  property and they were protected by Art.  19(1)(f),\t and
\nthat  it was entitled to seek redress under Art. 32  of\t the
\nConstitution when those rights were violated.  The  decision
\nin  Virendra Singh and others v. The State of Uttar  Pradesh<\/a>
\n(1) is relied on in support of this position.  This argument
\nassumes\t that there were in existence at the date  when\t the
\nConstitution came into force, some rights in the  petitioner
\nwhich are capable of being protected by Art. 19(1)(f).\t But
\nin  the view which we have taken that the concessions  under
\nCl. (23) of Ex. A came to an end when Ordinance No. 1 of  S.
\n2005  was  promulgated, the petitioner had  no\trights\tsub-
\nsisting on the date of the Constitution and therefore  there
\nwas nothing on which the guarantees enacted in Art. 19(1)(f)
\ncould operate.\tThe petition must therefore be dismissed  on
\nthis  short  ground.   In this view, it\t is  unnecessary  to
\nexpress any opinion on the soundness of the contention based
\non Art. 295 which was
\n(1)  [1955] I S.C.R. 415.\n<\/p>\n
750<\/span><\/p>\n
urged  in support of the petition, or on the scope of\tArt.\n<\/p>\n
363.  The petitioner will pay the costs of the respondents.
\nBOSE  J.-I agree, but want to reserve my opinion on a  point
\nthat  does not arise here but which the ratio of my  learned
\nbrother’s judgment will cover unless the reservation that  I
\nmake is set out.\n<\/p>\n
If  I judge aright, international opinion is  divided  about
\nthe  effect  that a change of sovereignty has on  rights  to
\nimmoveable property.  The English authorities hold that\t all
\nrights to property, including those in real estate, are lost
\nwhen a new sovereign takes over except in so far as the\t new
\nsovereign chooses to recognise them or confer new rights  in
\nthem.\tBut  that,  I  gather,\tis  not\t the  view  of\t the
\nInternational  Court  of Justice.  According to one  of\t its
\nopinions, which I have quoted at p. 426 of Virendra Singh v.
\nState of Uttar Pradesh<\/a>
\nprivate rights acquired under existing law do not cease on a
\nchange of sovereignty.”\n<\/p>\n
Certain American cases take the same view though they can be
\ndistinguished on the facts.  But this view, as I  understand
\nit, does not extend to personal rights, such as those  based
\non  contract,  nor,  in any event, does\t the  new  sovereign
\nassume\tany obligations of the old State in the\t absence  of
\nexpress\t agreement.  I have referred to this at p. 427.\t  In
\nany event, whether I am right in thinking that that is\twhat
\nI might call the international view, I would agree that\t for
\nour ,country that is, and should be, the law so far as per-
\nsonal rights are concerned.\n<\/p>\n
In  the present case, in so far as the right is\t claimed  on
\nthe  basis of contract, it would fall to the ground  on\t any
\nview; and in so far as it is not founded on contract, it  is
\nan  obligation\tthat  is sought to be fastened\ton  the\t new
\nState.\t There is no contract between the new State and\t the
\nappellant,  so\tthere also he is out of court; and  even  if
\nthere  was some agreement or understanding between the\thigh
\ncontracting   parties,\tit  cannot  be\tenquired  into,\t  or
\nenforced, by the municipal
\n(1)[1955] 1 S. C. R. 415.\n<\/p>\n
751<\/span><\/p>\n
courts\tof the new State.  So I agree that, so far  as\tthis
\ncase is concerned, the appellant must fail.
\nBut  my, learned brother’s judgment is grounded to’ a  large
\nextent on the views of the English courts which do not\tdraw
\nthe distinction that I am drawing here.\t I therefore want to
\nmake  it  clear\t that this decision must not be\t used  as  a
\nprecedent  in a case in which rights to immoveable  property
\nare concerned.\tWithout in any way committing myself to\t one
\nview or the other, as at present advised, I feel it may be a
\npity  for us to disregard the trend of modern  international
\nthought and continue to follow a line of decisions based  on
\nthe views of an older Imperialism, when we are not bound  by
\nthem  and  are free to mould our own laws in  the  light  of
\nmodern\tthought\t and  conceptions about\t rights\t to  and  in
\nimmoveable  property.  But in so far as the present case  is
\nconcerned,  I agree that the appeal and the  petition  under
\nArt. 32 should both be dismissed.\n<\/p>\n
Appeal and petition dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S. Dalmia Dadri Cement Co. Ltd vs The Commissioner Of … on 28 April, 1958 Equivalent citations: 1958 AIR 816, 1959 SCR 729 Author: T V Aiyyar Bench: Das, Sudhi Ranjan (Cj), Aiyyar, T.L. Venkatarama, Das, S.K., Gajendragadkar, P.B., Bose, Vivian PETITIONER: M\/S. DALMIA DADRI CEMENT CO. LTD. Vs. RESPONDENT: THE […]<\/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-9747","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S. Dalmia Dadri Cement Co. 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