1. Resumption of land and building grants by an Administrator during the transition of sovereignty of a princely state to the Dominion of India. (Para 1 , 2 , 9 , 10 , 11 )
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1961 Supreme(SC) 334
SUPREME COURT OF INDIA
3rd October, 1961
B.P.SINHA, C.J.I., S.K. DAS, A.K. SARKAR, N. RAJAGOPALA AYYANGAR AND J. R. MUDHOLKAR, JJ.
State of Saurashtra (now Gujarat) (In all the Appeals), Appellant
Versus
1. Jamadar Mohamad Abdulla (In C. As. Nos. 220 and 221 of 58) 2. Salem Bin Mahmed Hindi and others (In C. A. No. 349 of 58) and 3. Bai Chatuma Abdulkhanmiya (In C.A. No. 497 of 58) Respondents.
Civil Appeals Nos. 220, 221, 349 and 497 of 1958.
Advocates appeared
Mr. M. C. Setalvad, Attorney-General for India, Mr. C. K. Daphtary, Solicitor-General of India and Mr. B. Sen, Senior Advocate (Mr. R. H. Dhebar, Advocate, with them), for Appellant (In all the Appeals); Mr. I. N. Shroff, Advocate, for Respondent (in C. As, Nos. 220 and 221 of 58); Mr. G. S. Pathak, Senior Advocate, (M/s. N. P. Nathwani and K. L. Hathi, Advocates, with him), for Respondents (In C. A. No. 349 of 58); Mr. J. P. Mehta, Advocate and M/s. J. B. Dadachanji, Onkar Chand Mathur and Ravinder Narain, Advocates of M/s. J. B. Dadachanji and Co., for Respondents (In C. A. No. 497 of 58).
Advocates:
B.SEN, C.K.DAFTARY, CHAND MATHUR, G.S.PATHAK, I.M.SHROFF, J.B.DADACHAN, J.P.MEHTA, K.L.Hathi, M.C.SETALVAD, N.P.NATHVANI, R.H.Dhebar, Ravindra Narayan
B.SEN, C.K.DAFTARY, CHAND MATHUR, G.S.PATHAK, I.M.SHROFF, J.B.DADACHAN, J.P.MEHTA, K.L.Hathi, M.C.SETALVAD, N.P.NATHVANI, R.H.Dhebar, Ravindra Narayan
Acts of State, defined as exercises of sovereign power against aliens during territorial acquisition, are non-justiciable in municipal courts. This process terminates only upon the assumption of de jure sovereignty, after which residents acquire rights as citizens of the new sovereign.
Headnote:(A) Indian Independence Act, 1947; Government of India Act, 1935 - Sections 5, 6 and 299 - Extra Provincial Jurisdiction Act, 1947 - Sections 4 and 6 - Act of State - Non-justiciability - An act of State is an exercise of sovereign power against an alien which is neither intended nor purports to be legally founded, and such acts are not justiciable in municipal courts. (Paras 2, 23, 24)
(B) Sovereignty - Distinction between de facto control and de jure assumption of sovereignty - The process of acquisition of new territories is one continuous act of State terminating on the assumption of sovereign powers de jure over them by the new sovereign; the right of citizenship commences only when the act of State terminates. (Paras 15, 16)
(C) Property Rights - Rights of subjects of a displaced sovereign - Inhabitants of acquired territory do not carry with them the rights possessed as subjects of the ex-sovereign; they have only such rights as are granted or recognized by the new sovereign. (Paras 34, 36, 40)
(D) Government of India Act, 1935 - Section 299 - Protection against deprivation of property save by authority of law - This provision protects existing legally enforceable rights but does not create new rights or make non-enforceable rights enforceable against a new sovereign. (Paras 39-42)
Facts of the case:
Respondents held properties by virtue of grants from the former ruler of a state. After the ruler fled and the administration was taken over by the central government, an administrator was appointed. The administrator passed orders resuming the grants and dispossessing the respondents. These orders were passed after the administration was taken over but before the territory was formally integrated into a larger state. The respondents challenged these resumptions in municipal courts, arguing that the assumption of administration constituted a change of sovereignty and that they had become citizens whose property rights were protected by law.
Findings of Court:
The assumption of administration was a de facto exercise of control and not a change of de jure sovereignty. The process of acquisition was a continuous act of State that terminated only upon formal integration. Consequently, the orders of resumption made by the administrator were acts of State.
Issues: Whether the orders of resumption made by the administrator arose out of and during an act of State and were therefore non-justiciable in municipal courts.
Ratio Decidendi: The court ruled that the acquisition of territory is a continuous act of State ending only with the assumption of de jure sovereignty. Actions taken during this transition against aliens are acts of State and are not subject to the jurisdiction of municipal courts. Furthermore, property rights under a previous sovereign are not enforceable against a new sovereign unless specifically recognized by the new sovereign; the mere continuation of local laws does not imply such recognition.
Result: Appeals allowed.
Legal Category Hierarchy
Table of Contents
2. Whether the assumption of administration constituted a complete change of sovereignty, rendering subsequent property resumptions justiciable in municipal courts rather than non-justiciable acts of state. (Para 3 , 12 , 13 , 24 )
3. Distinction between de facto administrative control and de jure sovereignty; the process of territory acquisition is a continuous act of state until sovereign powers are formally assumed. (Para 14 , 15 , 16 , 18 , 20 , 33 , 36 , 40 , 43 )
4. Acts performed by a sovereign power against aliens during the process of acquiring territory, before de jure sovereignty is assumed, are non-justiciable acts of state. (Para 16 , 23 , 26 , 34 , 35 )
5. Appeals allowed and suits dismissed on the ground that the impugned orders were non-justiciable acts of state. (Para 27 , 28 , 45 )
6. What is the distinction between de facto control and de jure sovereignty in territory acquisition?
De facto exercise of administrative control does not equate to de jure assumption of sovereignty. The process of acquiring new territories is a continuous act of state that terminates only upon the assumption of sovereign powers de jure by the new sovereign. (Para 15 , 16 )
7. Are acts performed during the process of acquiring territory justiciable in municipal courts?
No. Actions arising out of and during an act of state—specifically the exercise of sovereign power against aliens before de jure sovereignty is assumed—are not justiciable in municipal courts, even if the actions are arbitrary. (Para 2 , 23 , 26 )
8. What rights do inhabitants of an acquired territory possess against the new sovereign?
Inhabitants do not carry over rights possessed under the previous sovereign. They only possess such rights as the new sovereign, through legislation or express/implied agreement, chooses to recognize or confer upon them. (Para 34 , 36 , 40 , 41 )
9. Does a statutory protection against deprivation of property without authority of law apply to non-recognized rights in acquired territories?
Such protections only apply to legally enforceable rights. If a person's property rights were not recognized by the new sovereign upon acquisition, they possess no legally enforceable right to be protected by such statutory provisions. (Para 39 , 40 , 42 )
Judgment
S. K. DAS, J. (On behalf of himself, B. P. Sinha C. J. and Rajagopala Ayyangar, J,) : These four appeals which have been brought to this Court on certificates granted by the then High Court of Saurashtra under Art. 133 of the Constitution fall into three groups, and have been heard together. The essential facts relating to these appeals are the same, and a common question of law now falls for determination on those facts.
2. The State of Gujarat, within whose territories the disputed properties are now situate, is the appellant in the appeals. The respondents and in some cases their ancestors, obtained grants from the then Nawab of Junagadh, which was then a ruling State, in respect of lands and, in one case, of a building known as Datar Manzil . These grants were repudiated or cancelled and the property, subject of the grant, was resumed by the Administrator who took over charge of the administration of Junagadh on behalf of the Dominion of India in 1947 in circumstances which we shall presently state. The respondents brought suits challenging the validity of the orders made by the Administrator. These suits were decreed by the lower court and the decrees were substantially upheld by the High Court of Saurashtra. The principal point for decision in these appeals is whether the impugned orders made by the Administrator arose out of and during an act of State which was not justiciable in the municipal courts. This is the only point which has been agitated before us on behalf of the appellant-State and very strong reliance has been placed on the decision of this Court in the State of Saurashtra v. Memon Haji Ismail Haji , 1960-l SCR 537, where, in circumstances same as those of the appeals before us, it was held that the act of the Dominion of India in assuming the administration of Junagadh was an act of State pure and simple and the resumption of the grant in question therein having been made by the Administrator before that act was completed and at a time when the people of Junagadh were aliens outside the State, the act of resumption, however arbitrary, was an act of State on behalf of the Government of India and was not, therefore, justiciable in the municipal courts. It may be here noted that by that decision this Court overruled the earlier decision of the Saurashtra High Court in State of Saurashtra ,v. Haji Ismail, AIR 1953 Sau 180, a decision on the basis of which the High Court decided the cases under consideration in these appeals.
3. The learned Attorney General has submitted that the -decision of this Court in 1960-1 SCR 537, completely covers and concludes the present appeals. On behalf of the respondents it has been contended that the decision aforesaid proceeded on a finding that the act of State was not completed before the impugned orders were made and that finding being a finding of fact does not bind the respondents who were not parties in the case in which the decision was rendered, In the appeals before its the main contention on behalf of the respondents his been that the impugned orders were made after the assumption of sovereignty by the Dominion of India was completed, and therefore the decision of this Court in 1960-1 SCR 537 is not determinative of the problem which arises in these appeals. It has been further argued that after full sovereignty had been assumed by the Dominion of India, the position of the people of Junagadh including the respondents was not that of aliens outside the State, but their position on such assumption of sovereignty was that of citizens of India against whom there could be no act of State and they had rights as such citizens in respect of which they could ask for relief in the municipal courts.
4. We have set out above, in brief outline, the principal point. which falls for decision in these appeals and the respective contentions of the parties relating thereto in order to high-light the main problem presented for solution in these appeals.
5. But we must first set out
