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SUPREME COURT OF INDIA
2nd February, 1954.
M.C. MAHAJAN, C.J.I., B.K. MUKHERJEA, S.R. DAS, BOSE AND GHULAM HASAN, JJ.
Raj Rajendra Malojjrao Shitole and another, Appellants
Versus
State of Madhya Bharat.
Civil Appeals Nos. 4 and 6 of 1953.
Advocates appeared
Shri P. R. Das, Senior Advocate, (Shri B. Sen, Advocate, with him), instructed by Shri I. N. Shroff, Agent (in No. 4 of 1953), and Shri. Rameshwar Nath, Advocate, instructed by Shri Rajinder Narain, Agent, (in No. 6 of 1953), for Appellants; Shri M. C. Setalvad, Attorney-General for India, and Shri K. A. Chitale, Advocate-General of Madhya Bharat, (Shri Shiv Dayal, Advocate, with them), instructed by Shri R. H. Dhebar, Agent, for the State.
The appellants contested the validity of the M. B. Abolition of Jagirs Act, XXVIII of 1951, on a number of grounds and inter alia on the following:
(1) That the so-called Legislature which passed the Act was not a legislature within the meaning of the Covenant entered into by the Rulers of Gwalior, Indore and certain other States in Central India for the formation of the United States of Gwalior, Indore and Malwa (Madhya Bharat) or within the meaning of Sch. 4 of the said Covenant.
(2) That the Legislature of Madhya Bharat was not competent to enact the said Act and the said acquisition or resumption of jagirs was not for a public purpose and there was no provision for payment of compensation as "understood in law, the compensation provided for being wholly illusory and the Act was a fraud on the Constitution.
The second ground was not pressed. The M. B. High Court, by a majority judgment had declared that the said Act was valid except as regards Ss. 4 (1) (g) and sub-clauses (iv) and (v) of CI. 4 of Sch. I which were held illegal and inoperative.
Held: (1) "The whole intent and purpose of these Articles was to give recognition to those bodies or authorities or House or Houses of Legislature which were actually functioning before 26-1-1950 and to in. vest them wiles the powers conferred by the provisions of this Constitution. The Constitution makers wanted to indicate the arrangements made by them for the interval with certain amount of definiteness in order to avoid any disputes during the interim period as to who the body or authority was, to exercise the powers conferred by the provisions of the Constitution. They therefore chose the formula that whichever body or authority or House or Houses of Legislature was actually functioning immediately before the commencement of the Constitution would be the body or authority or the House that would exercise the powers and perform the duties conferred by the provisions of this Constitution on the House, body or authority specified in the Constitution. They did not take any risk on this question and the bodies actually functioning were, like persona designated, invested with powers conferred by the Constitution. That being the scheme of this Part and that being also the clear and unambiguous language of Article 385 it follows that the Madhya Bharat Interim Legislative Assembly that was actually functioning on 26-1-1950 was invested by the Constitution of India with powers conferred by the provisions of the Constitution irrespective of the fact whether it had been properly constituted in accordance with the terms of the Covenant or not. The inquiry into this question thus became barred by adopting this procedure. Such a procedure was fully justified and was founded upon consideration of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. It is manifest that endless confusion would have resulted if the Constitution had not adopted that formula and had not barred an inquiry into all questions as to the original formation of such bodies by giving validity and recognition to those bodies or authorities as were actually functioning on 26-1-1950. Not only did it give validity and recognition to those bodies which were in fact functioning then but it also invested these designated bodies and authorities with powers conferred by the provisions of the Constitution itself." (Per Mahajan C. J.)
(2) "That being our view as to the true meaning and intent of the language employed in Art. 385 of the Constitution it follows that the contention raised by Mr. P.R. Das as to the defective formation of the Interim Legislative Assembly of Madhaya Bharat has no validity. Even if that body was not formed in strict compliance with the provisions indicated in Sch. 4 of the Covenant its defective formation does not affect the constitutionality of the impugned statute. The impugned statute was passed in the year 1951 after the Constitution of India had given recognition to and conferred powers on the Assembly under Art. 385 of the Constitution. When it made this law it was exercising its powers under the Constitution of India and not under the Covenant which brought it into existence. The result therefore is that the only contention that Mr. P.R. Das argued before us cannot be sustained and it must be held that it is Dot well founded." (per Mahajan C. J.)
Judgment
MAHAJAN, C.J.I.: These appeals preferred on behalf of three zamindars of the State of Madhya Bharat against the judgment of the High Court of Judicature of that State dated 4-12-1952 raise common Constitutional questions and can be disposed of by one judgment. The State also preferred cross appeals against the same judgment. During the pendency of these appeals, two petitions under Art. 32 of the Constitution of India were also made to this Court to obtain the same relief as was claimed by the appellants in their respective appeals. During the course of the arguments, the counsel appearing for the appellant in Civil Appeal No. 5 of 1953 asked leave to withdraw the appeal. This was granted and the appeal was dismissed as having been withdrawn. Petitions Nos. 116 and 117/1953 preferred under Article 32 were also withdrawn and were accordingly dismissed. Civil Appeals Nos. 4 and 6 of 1953 were argued before us and this judgment concerns them alone.
2. The Appellant in Civil Appeal No. 4 of 1953. Raj Rajendra Maloji Rao Shitole, is the proprietor of extensive landed properties in the State of Madhya Bharat comprising villages under different Sanads granted to his ancestors by the Rulers of Gwalior from time to time. It was alleged by him that his income from these properties was in the sum of Rs. 2,61,637 and that the State of Madhya Bharat, under purported exercise of its powers under S. 3, Madhya Bharat Abolition of Jagirs Act, was about to issue a Notification for resumption of all his land. By a petition dated 7-12-1951 preferred to the High Court he asked for a Mandamus to restrain the State from issuing any Notification under S. 3(1) of the Act in respect of his properties and from interfering with his rights in the said property.
The appellant in Civil Appeal No. 6 of 1953 in another Jagirdar of the same State. He preferred a similar petition to the High Court praying for the same relief. These two petitions, along with a number of other petitions preferred under Art. 226 of the Constitution challenging the validity of the Madhya Bharat Abolition of Jagirs Act and praying for the issue of a Mandamus restraining the State from issuing the Notification under S. 3(1) of the said Act, were heard by a Bench of three Judges of the High Court of Madhya Bharat. The Court, by a majority judgment, declared that the Madhya Bharat Abolition of Jagirs Act No. 28 of 1951 was valid except as regards S. 4(1)(g), and sub-clauses (iv) and (v) of Cl. 4 of Sch. I which were held illegal and inoperative.
A writ of Mandams was directed to be issued to the State Government directing it not to give effect to the provisions of the impugned Act stated above. Leave to appeal to the Supreme Court was granted to the parties and in pursuance of the leave the appellants preferred the appeal above mentioned and the State preferred the two Cross Appeals. The Cross Appeals were not pressed by the learned Attorney-General and nothing more need be said about them. They are therefore dismissed with costs.
3. As regards Civil Appeals Nos. 4 & 6 of 1953, the facts are: That in April 1948 after the partition of India, and the formation of two Dominions, India and Pakistan, the Rulers of the States of Gwalior, Indore and certain other States in Central India being convinced that the welfare of the people of that region could best be secured by the establishment of a State comprising the territories of their respective States, with a common Executive, Legislature and Judiciary entered into an agreement for the formation of a United States of Gwalior, Indore and Malwa (Madhya Bharat).
It was resolved by them to entrust to Constituent Assembly consisting of elected representatives of the people the drawing up of a democratic Constitution for the State within the framework of the Constitution of India to which the Rulers of these States had acceded. The covenant entered into by these Rulers was published on the 7th October 1948. The Rulers agreed, under Art. III
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