1. Dispute over the annulment of maintenance grants made by former Rulers of native states to family members following merger with the Dominion of India. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 )
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1961 Supreme(SC) 367
Supreme Court Of India
B.P.SINHA, C.J.I., S.K.DAS,A.K.SARKAR,N.RAJAGOPALA AYYANGAR,J.R.MUDHOLKAR, JJ.
Promod Chandra Deb - Appellant
Versus
State of Orissa - Respondent
Petns. Nos. 79 of 1957, 167 and 168 of 1958 and 4 of 1959
Decided On : 11/16/1961
Advocates Appeared:
Mr. A. V. Viswanatha Sastri, Senior Advocate (Mr. K. R. Chaudhuri, Advocate, with him), for Petitioner (In Petn. No. 79 of 1957); Mr. Purushottam Trikamdas, Senior Advocate, (Mr. R. Patnaik, Advocate with him), for Petitioners (In Petns. Nos. 167 of 1958 and 4 of 1959); Mr. N. C. Chatterjee, Senior Advocate (Mr. R. Patnaik, Advocate, with him), for Petitioner; (In Petn. No. 168 of 1958); Mr. C. K. Daphtary, Solicitor General of India (M/s. B. R. L. Iyengar and T. M. Sen, Advocates with him), for Respondents (In all Petitions).
Mr. A. V. Viswanatha Sastri, Senior Advocate (Mr. K. R. Chaudhuri, Advocate, with him), for Petitioner (In Petn. No. 79 of 1957); Mr. Purushottam Trikamdas, Senior Advocate, (Mr. R. Patnaik, Advocate with him), for Petitioners (In Petns. Nos. 167 of 1958 and 4 of 1959); Mr. N. C. Chatterjee, Senior Advocate (Mr. R. Patnaik, Advocate, with him), for Petitioner; (In Petn. No. 168 of 1958); Mr. C. K. Daphtary, Solicitor General of India (M/s. B. R. L. Iyengar and T. M. Sen, Advocates with him), for Respondents (In all Petitions).
Pre-cession rights in acquired territories are not enforceable in municipal courts unless recognized by the new sovereign via legislation or conduct. Once recognized, such rights cannot be revoked by executive fiat but require a valid legal order.
Headnote:(A) Constitution of India - Articles 14, 19(1)(f), 31 and 32 - Extra Provincial Jurisdiction Act, 1947 - Sections 3, 4 and 5 - Government of India Act, 1935 - Section 299(1) - Grants of maintenance to junior members of ruling families of former native states - Whether such grants are binding on the succeeding sovereign - Act of State - The taking over of sovereign powers by a state in respect of territory not previously part of its territory is an act of state; municipal courts have no jurisdiction to examine the propriety or legality of such acts (Paras 12-18).
(B) Recognition of pre-cession rights - Inhabitants of territory acquired by a new sovereign can only enforce rights in municipal courts that the new sovereign has chosen to recognize through legislation, agreement, or implied conduct (Para 18). The burden of proof lies on the claimant to establish such recognition (Para 18).
(C) Executive action vs. Legislative order - Rights recognized by the new sovereign through legislative orders or implied recognition cannot be abrogated by mere executive fiat (Paras 25, 27).
Facts of the case:
Junior members of the ruling families of former native states were provided with maintenance grants in land or cash based on custom and local law. Following the merger of these states into the Dominion, the government stopped the payment of these allowances. The petitioners challenged these actions as violations of their fundamental rights to property and equality, arguing that the grants were laws that the new sovereign was bound to respect.
Findings of Court:
The court found that where the new sovereign, through a legislative order, continued the laws of the former state, the maintenance grants (which had the force of law) were recognized and could not be stopped by executive action. Conversely, where the grant was specifically annulled by an order made under the Extra Provincial Jurisdiction Act, the termination was valid. Where the government had recognized the right through continued payment, it could not be stopped by a mere statement in the legislative assembly.
Issues: Whether the grants made by former sovereign rulers are enforceable against the succeeding sovereign and whether the cessation of such grants is a non-justiciable act of state or a justiciable violation of property rights.
Ratio Decidendi: The court ruled that the acquisition of territory is an act of state, and pre-existing rights are not automatically enforceable unless recognized by the new sovereign. Recognition can be express through legislation or implied through conduct. Once a right is recognized, it cannot be revoked by executive fiat but requires a valid legal order.
Result: Writ Petitions 79 of 1957, 168 of 1958, and 4 of 1959 allowed; Writ Petition 167 of 1958 dismissed.
Legal Category Hierarchy
- constitutional law
- administrative law
- international law
- property law
Table of Contents
2. Petitioners claim grants are laws protected by the Constitution; respondents argue they are acts of state or abrogated via the Extra Provincial Jurisdiction Act. (Para 8 , 9 , 19 )
3. Acquisition of territory is an act of state; pre-existing rights are enforceable only if recognized by the new sovereign through legislation, agreement, or conduct. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 20 , 21 , 22 , 23 , 24 , 25 , 29 , 30 )
4. Municipal courts can only enforce pre-cession rights if the new sovereign recognizes them expressly or impliedly; such recognition cannot be revoked by mere executive fiat. (Para 18 , 23 , 25 , 27 )
5. Petitions for continued maintenance allowed where rights were recognized or continued by law, but dismissed where validly annulled by legislative order. (Para 25 , 26 , 27 , 28 )
6. What is the legal effect of an act of state regarding the acquisition of territory on pre-existing private rights?
The acquisition of territory by a sovereign state is an act of state. Consequently, municipal courts have no jurisdiction to enforce pre-existing rights unless the new sovereign has chosen to recognize or acknowledge those rights through legislation, agreement, or implied conduct. (Para 12 , 13 , 14 , 18 )
7. How can a new sovereign recognize pre-cession rights of inhabitants in a merged territory?
Recognition may be express, such as through specific legislation, treaties, or agreements, or implied from the mode of dealing with those rights, including the continuation of payments or the adoption of existing local regulations. (Para 13 , 18 , 23 )
8. Can the government use the Extra Provincial Jurisdiction Act, 1947 to abrogate recognized grants?
Yes, an order made under Section 4 of the Act has legislative character and can validly terminate grants. However, a mere executive fiat cannot abrogate laws or rights that have been continued in force by virtue of the Act. (Para 24 , 25 , 26 )
9. Does Section 299(1) of the Constitution Act, 1935 protect pre-merger grants not recognized by the new sovereign?
No, Section 299(1) only protects rights the citizen possessed at the moment of becoming a citizen of the Indian Dominion; it does not enlarge rights or cure infirmities in pre-merger rights that were not recognized by the new sovereign. (Para 29 , 30 )
Judgement
SINHA, C.J.I. : The petitioners in these Writ Petitions, under Art. 32 of the Constitution, complain of interference with their rights under the several Khor Posh grants, and pray for writs of certiorari or mandamus and further orders or directions to the respondents for the enforcement of their alleged lights. In Writ Petition No. 79 of 1957, the first respondent is the State of Orissa, and the Union of India is the second respondent. In all the other Writ Petitions, the State of Orissa is the sole respondent. As most of the questions of law relating to the interpretation of the Constitution, or other laws hereinafter to be referred to are common, the cases have been heard together. But in order to appreciate the points arising in these cases, it is necessary to state the, facts of each case separately.
I. Writ Petition No. 79 of 1957.
2. In Writ Petition 79 of 1957, the petitioner is the younger brother of the present Raja of Talcher, which was an independent sovereign state before its merger. It was later incorporated in the State of Orissa. The Talcher state was a sovereign State of the Rajabahadur of Talcher, under the paramountcy of the British Government, before India attained Independence. As such a sovereign, the Rajah had absolute powers of disposal of the properties comprised in the State. The succession to the Rulership of the State is governed by the Mitakshara law, according to the rule of lineal primogeniture. The petitioner is a citizen of India and is the only younger brother of the present Raja of Talcher. The petitioners father, the previous Ruler of Talcher, died in 1945 and was succeeded by the petitioners elder brother, the present Raja of Talcher. According to immemorial and long established custom of the State as also according to the Hindu Law of lineal primogeniture, the junior members of the family of the Rulers, for the time being, were entitled to and were provided with suitable maintenance, either land or in money, to enable them to maintain themselves in accordance with their status as members of the Rulers family. The grants of land, or its equivalent in money, or partly in land and partly in money, used to called Khanja or Khor Posh grants, and the grantees were known as Khanjadars or Khorposhdars. The nature and conditions of such grants have been laid down in Order 31 of the Rules, Regulations and Privileges of Khanjadars and Khorposhdars. Those "Rules, Regulations
of Talcher etc. (1937)" state the law of the State. In accordance with the law aforesaid, the Khorposh grants made by the Ruler, for the time being, became the absolute private property of the grantee, being a male or a female member of the family of the grantor.
3. The petitioner was born in 1903, and in the same year the petitioners father, who was the then Ruler of the State of Talcher, made a grant in perpetuity to the petitioner of 5 villages specified in the Schedule to the petition. The said grant conveyed to the petitioner full proprietary rights in the villages aforesaid. By an order, dated March 31, 1912, the Ruler aforesaid passed an order to the effect that the income of the 5 villages granted to the petitioner, as aforesaid, be collected by the State Officials and deposited in the State Treasury, and the petitioner should be paid in cash the equivalent of the income from the villages aforesaid, amounting to Rs. 5926 odd. By a subsequent order, dated September 8, 1929, the Ruler aforesaid directed the Settlement Officer, who was in charge of making the records up to date, to keep the aforesaid grant yielding a cash income of Rs. 5926 odd intact, to be enjoyed by the petitioner "in perpetuity under hereditary rights". The Ruler of the State, after making the necessary enquiries, directed, by his Order dated March 16, 1944, that the petitioner should be paid Rs. 6200 a year, as a cash allowance out of the State Treasury in lieu of the income from the villages granted to the petitioner, as aforesaid. Since then the pe
