1. Challenge to regulations abolishing jagirs and determining commutation sums, promulgated by delegates of a sovereign ruler prior to the commencement of the Constitution. (Para 2 , 3 , 4 , 5 , 6 )
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1960 Supreme(SC) 79
SUPREME COURT OF INDIA
16th March, 1960
B.P. SINHA, C.J.I., S.J. IMAM, A.K. SARKAR, K.C. DAS GUPTA AND J.C. SHAH, JJ.
1. Sarwarlal (In C. A. No. 392 of 1956)
2. Mir Shah Sarwar Ali (In C. A. No. 686 of 1957), Appellants
Versus
The State of Hyderabad (now Andhra Pradesh) and others (in both the appeals), Respondents.
Civil Appeals Nos. 392 of 1956 and 686 of 1957.
Advocates Appeared
M/s. S. P. Varma, S. Mohammed and S. R. Borgaouker, Advocates, for Appellants (in both Appellants) Mr. A. V. Viswanatha Sastri,. Senior Advocate (M/s. T. V. R. Tatachari and T. M. Sen, Advocates, with him), for Respondents (in both Appeals).
Advocates:
A.V.VISHWANATHA SASTRI, S.MOHAN KUMARA MANGALAM, S.P.Varma, S.R.BORGAOUKER, T.M.SEN, T.V.R.TATACHARI
A.V.VISHWANATHA SASTRI, S.MOHAN KUMARA MANGALAM, S.P.Varma, S.R.BORGAOUKER, T.M.SEN, T.V.R.TATACHARI
Sovereign authority delegated for state administration includes legislative power. The doctrine of colourable legislation applies only to restricted legislatures, not unrestricted sovereign delegates. Furthermore, the Constitution does not retrospectively revive rights extinguished by valid pre-constitutional legislation.
Headnote:(A) Constitution of India - Articles 31(6), 31-A, 31-B and Schedule IX - Constitution (First Amendment) Act, 1951 - Validity of Regulations promulgated by a delegate of a sovereign ruler - Legislative competence - Colourable exercise of power - Retrospective operation of the Constitution - Delegation of "all authority for the administration of the State" from a sovereign ruler to a delegate includes the entirety of sovereign authority, encompassing legislative, executive, and judicial powers (Paras 8 and 9).
(B) Colourable exercise of legislative power - The doctrine of invalidity of legislative provisions enacted in colourable exercise of authority applies only to legislatures whose powers are subject to constitutional restrictions. A statute enacted by a legislative authority whose powers are not fettered by any constitutional or other limitations cannot be declared invalid as enacted in colourable exercise of its powers (Para 13).
(C) Retrospective operation of the Constitution - The Constitution does not operate retrospectively to revive rights which had been, before it was enacted, extinguished by legislation (Para 15).
Facts of the case:
A sovereign ruler delegated all authority for the administration of the state to a military governor, later clarifying that this included the authority to make regulations. Under this authority, regulations were promulgated to abolish jagirs and determine commutation sums. These administrative and legislative powers were subsequently transferred to a chief minister. Following the commencement of the Constitution, these regulations were certified under Article 31(6) and later included in the ninth schedule via the Constitution (First Amendment) Act, 1951. The appellants challenged the regulations as being ultra vires and a colourable exercise of legislative power, claiming naked confiscation of property.
Findings of Court:
The court found that the delegation of "all authority for administration" invested the delegate with the full amplitude of the sovereign's power, including legislative competence. Because the delegate's power was unrestricted, the regulations could not be challenged as a colourable exercise of authority. Additionally, since the rights were extinguished by valid legislation prior to the Constitution's commencement, they were not revived by the Constitution.
Issues: Whether the delegation of administrative authority included legislative power and whether such power was subject to limitations that would render the resulting regulations a colourable exercise of authority.
Ratio Decidendi: A delegate invested with the sovereign authority of an absolute ruler possesses unrestricted legislative power. The doctrine of colourable legislation is inapplicable where no constitutional restrictions exist. Furthermore, the Constitution does not retrospectively revive rights extinguished by valid pre-constitutional legislation.
Result: Appeals dismissed.
Legal Category Hierarchy
- constitutional law
- administrative law
- public law
Table of Contents
2. Whether the delegate possessed legislative authority and if the regulations were unconstitutional, confiscatory, or a colourable exercise of legislative power. (Para 6 , 7 )
3. Delegation of administrative authority from an absolute ruler encompasses all sovereign powers; colourable legislation doctrine applies only to restricted legislatures; Constitution does not retrospectively revive extinguished rights. (Para 8 , 9 , 11 , 13 , 15 )
4. Statutes enacted by unfettered legislative authority cannot be declared invalid as colourable exercise of power; pre-constitutional legislation extinguishing rights is not revived by the Constitution. (Para 13 , 15 )
6. Does the delegation of authority for the administration of a State include legislative power?
Yes. The expression all authority for the administration of the State encompasses the entirety of the sovereign's authority, including legislative, executive, and judicial powers, especially when clarified by an explanatory decree. (Para 8 , 9 )
7. Can a statute enacted by an unfettered legislative authority be challenged as a colourable exercise of power?
No. The doctrine of colourable legislation applies only to legislatures whose powers are subject to constitutional restrictions. A legislative authority with unfettered powers cannot be found to have acted colourably. (Para 13 )
8. Does the Constitution revive property rights that were extinguished by legislation prior to its commencement?
No. The Constitution does not operate retrospectively to revive rights that had been extinguished by competent legislation before it was enacted. (Para 15 )
9. What is the legal effect of including legislation in the Ninth Schedule under Article 31-B?
Legislation included in the Ninth Schedule is exempt from challenge on the ground that it is inconsistent with or abridges fundamental rights conferred by Part III of the Constitution. (Para 15 )
Judgment
SHAH, J.: Civil Appeal No. 392 of 1956. This is an appeal filed with a certificate granted under Art. 133 (1) (c) of the Constitution by the High Court of Judicature of the State of Hyderabad.
2. The appellant was a Jagirdar holding jagirs Ramwarm Chandam Palli and Gulla Palli, Taluq Sirsalla, in the district of Karimnagar in the State of Hyderabad. After the Police Action in August, 1948, Major General Chaudary was appointed the Military Governor for the State of Hyderabad. His Exalted Highness the Nizam of Hyderabad invested the Military Governor with authority to administer the State by a Farman dated September 19, 1948. The Farman was in the following terms:
"Whereas the General Officer Commanding in Chief Southern Army has appointed Major General J. N. Choudary, O. B. E., to be the Military Governor for the Hyderabad State and whereas all authority for the administration of the State now vests in him, I hereby enjoin all the subjects of the State to carry out such orders as he may deem fit to issue from time to time. I appeal to all officers of the State administration and subjects of the State to render faithful and unflinching obedience to the Military Governor and conduct themselves in a manner calculated to bring about the speedy restoration of law and order in the State".
3. On August 7, 1949, His Exalted Highness the Nizam issued an explanatory Farman in the following terms:
"With reference to my Farman dated 19-9-1948, in which I referred to the fact that all authority for the administration of the State now vests in the Military Governor, I hereby declare that the said authority includes and has always included authority to make Regulations".
On August 10, 1949, the Military Governor promulgated The Hyderabad (Abolition of Jagirs) Regulation of 1358 Fasli, which will hereinafter be referred to as the Abolition Regulation. This Regulation was brought into force on August 15, 1949, the date of its publication in the Official Gazette. Section 5 of the Regulation directed that from a date to be notified for the transfer of the administrations of jagirs in the State to the Government, the jagirdars shall make over the management of the jagirs to the Jagir Administrator and in default of compliance therewith, the officer appointed under the Regulation may take forcible possession. By S. 6, it was provided that the jagirs shall be included in the "Diwani" and unless and until included in a district, shall be administered by the Jagir Administrator, and that the powers, rights and liabilities in relation to such jagirs shall cease to be exercisable by the jagirdars and shall be exercisable by the Jagir Administrators, and that no jagirdar shall recover or receive any customary or other dues from any tenant or resident of the jagir. By S. 14, it was declared that the jagirdars were to receive certain interim maintenance allowances until such time as the terms of the commutation of the jagirs were determined. Pursuant to the authority reserved by S. 6 of the Abolition Regulation, possession of the jagirs was taken over sometime in September, 1949, by the Jagir Administrator acting on behalf of the State of Hyderabad.
4. On December 1, 1949, another Farman was issued by His Exalted Highness the Nizam which provided as follows:
"Whereas the General Officer Commanding in Chief Southern Army has as from the 1st December, 1949, terminated the appointment of Major General Chaudary, O. B. E., to be the Military Governor for the Hyderabad State;
And whereas it is necessary to make other arrangements for the administration of the State as from the said date;
Now, therefore, I hereby appoint as from the said date Mr. M. K. Vellodi, C.I.E., I.C.S., to be my Chief Minister and .......I further direct that all the powers of administration, vested in the Military Governor before the said date are exercisable by the Chief Minister".
5. In exercise of the powers vested in him, the Chief Minister promulgated the Hyderabad Jagirs (Commutation
