1954 Supreme(Raj) 55

Rajasthan High Court, Jaipur Bench
Wanchoo C.J. & Ranawat, J.
Th. Jaisingh - Appellant
Versus
State of Rajasthan - Respondents
Writ Case No. 203 of 1953
Decided On : March 02, 1954

Headnote:(a) Constitution of India, Art. 226—Second application for similar relief—Previous application withdrawn on mistaken facts—Second application allowed.(b) Constitution of India, Art. 226—Retrospective application—If impugned order invalid when passed High Court has jurisdiction to issue writ.(c) Government of Jaipur Act, sec. 42—Scope—Acts, proclamations and orders—Only such acts, proclamations or orders could be passed which required reference to legislature —Ruler not competent to pass order which did not require reference to legislature.(d) Constitution of India, Art. 226—Validity of order passed by a former sovereign ruler of integrating Slate—Order of ruler exercising judicial power on executive side—Order declared invalid—Government of Jaipur Act, sec. 27.(e) Government of Jaipur Act, sec. 27—Excluded subjects—His Highness imposing fine on jagirdar for illicit distillation—Order declared invalid.(f) Excise—Jaipur Excise Act, sec. 21—Jaipur Ruler imposing fine on departmental side—Order declared invalid.(g) Excise—Jaipur Excise Act, sec. 15—Scope—Fine imposed by His Highness on executive side cannot be recovered under sec. 15— Section makes provisions for recovery of fines imposed under the law.(h) Public Demands Recovery Act, sec. 6—Notice on defaulter a condition pre-requisite.

       Generally speaking, a second application for a writ under Art. 226 will not lie if one application or a similar relief has been dismissed- But where the prayer in the first application was never refused and was withdrawn under a mistake of fact, a second application praying for the same relief was allowed. (Para 8 & 9)

       If the impugned order was valid when it was passed, it would not be open to us to hold today that it is invalid by a retrospective application of the provisions of the Constitution. But if the order was invalid even when it was passed and is being enforced in part now, it is open to us to hold it invalid on an application under Art. 226. (Para 10)

       By an order dated 6/04/1949 the rule of former Jaipur State passed an order imposing a fine of Rs. 10,000/- on the Thakur of Garh Taknet for illicit distillation of liquor. The departmental recommendation to the ruler was that as the Thakur was carrying on illicit distillation, a part of his jagir should be confiscated, but the ruler imposed the fine instead.

       When the order was passed, the Jaipur Excise Law of 1924 was in force. According to sec. 21 of that law any person, who manufactured any excisable article in contravention of the law, was liable to imprisonment for two years, or fine up to Rs. 2,000/- or both. It was, therefore, open to the State to prosecute the applicant under sec. 21 of the Jaipur Excise Law in a competent court, and in that case the applicant would have been liable to punishment as provided by that section. It seems, however, that as the applicant was a jagirdar it was decided not to prosecute him under sec. 21. Instead it was decided to recommend to the Maharaja of Jaipur that part of his jagir yielding Rs. 2,000/- per year should be confiscated. This recommendation could not be made under the Jaipur Excise Law, and has not been justified under that Law.

       Besides, even a sovereign when it had made certain law; which will govern its actions, must act according to that law. In the former Jaipur State, there was the Government of Jaipur Act which prescribed how the sovereign authority would be exercised. There was a regular judicial system in the former State of Jaipur with the High Court at its head, and the Ruler 1 did not reserve to himself any judicial powers, and the High Court was the highest judicial authority in the State. In these circumstances, the order of the 6th of April, 1949, which can only be an executive order, cannot be defended on the ground that it was passed by the sovereign, and, therefore, had the force of law. For no judicial powers were reserved by the sovereign for himself.

       Now, if it was an executive relating to a subject excluded under sec. 27 of the Government of Jaipur Act, in might have been justified on the ground that it was the order of a sovereign in relation to an excluded subject and had to be carried out. A recommendation was made to the sovereign for confiscation of part of the jagir because jagirs were an excluded subject under sec. 27(e). If His Highness the Maharaja had accepted that recom-mendation and confiscated a part of jagir, it might have been possible to justify it as an executive order with reference to an excluded subject; but His Highness did not pass an order confiscating the jagir What he did was to impose a fine of Rs. 10,000/- on the applicant. We can find no warrant for such an order being passed by His Highness the Maharaja of Jaipur in April, 1949, when the Government of Jaipur 1944, was in force. The power to impose a fine for illicit distillation is only conferred under sec. 21 of the Jaipur Excise Law, and such a fine can only be imposed by a court of law and not by His Highness the Maharaja of Jaipur, even though he was the sovereign ruler of Jaipur on that date. (Paras 15, 16, 17 & 18)