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Rajasthan High Court, Full Bench
Wanchoo C.J. Bapna & Sharma, JJ.
Th. Bahadur Singh - Appellant
Versus
H.H. The Rajpramukh Of Rajasthan - Respondents
F.B.C. writ petition No. 713 of 1952
Decided On : March 31, 1955
The applicant challenged the order of the Rajpramukh of Rajasthan, dated 16th Sept. 1952, by which the respondent No. 2 was recognised as successor to the late Jagirdar, Thakur Gopalsingh of Digwana in Alwar District. It was argued by the Advocate General that the Rajpramukh had under Art. 7 (3) of the Covenant exclusive power to decide the question of succession. Further, under Art. 363 of Constitution neither the Supreme Court nor any other Court can have any jurisdiction in any dispute arising out of any............. Covenant...........
Held per Sharma, J. (Wanchoo C.J. and Bapna J. concurring). .
That the Rajpramukh of Rajasthan or for the matter of that of any other State in India, had no sovereign powers whatsoever left in him after the coming into force of the Constitution of India and therefore, whatever sovereign powers the Rajpramukh could exercise under Art. 7 (3) of the Covenant before the Constitution of India came into force, could not be exercised by him after the Constitution came into effect. The ruling in Umrao Singhs case has no application to the facts of the present case, as the very basis on which it was given has disappeared after the inforcement of the Constitution. (Para 10). Per BAPNA. J.
The authority conferred on the Rajpramukh by Art. VII (3) of the Covenant also came to an and, because its exercise inconsistent with the provisions of the Constitution, The exercise of the powers under Art. VII (3) of the Covenant by the Rajpramukh was kept independent of the advice of the Ministers according to Art. V(1) of the Covenant. and it was on that basis that it was argued that it was within the exclusive jurisdiction of the Rajpramukh to decide the question of succession to jagirs. But this provision of the Covenant is directly inconsistent with Art.163 of the Constitution. The constitutional position of the Rajpramukh as defined by Art 163 is that the Rajpramukh is bound to act according to the advice of his Council, excepting in certain cases. The authority of the Rajpramukh to exercise his function of recognising succession to jagirs in his individural discretion is not continued or conferred upon the Rajpramukh by the Constitution. Under Art.l54, the executive power of the State was no doubt vested in the Rajpramukh, but it was to be exercised only in accordance with the Constitution. The power conferred upon the Rajpramukh by Art. VII (3) read with Art. V (1) is thus inconsistent, with the provisions of the Constitution, and must be deemed to have come to an end on the enforcement of the Constitution. (Para 15).
"A decision by the Rajpramukh in the matter of recognition of a successor to a jagir after the coming into force of the Constitution from 26.1.50, does not bar a civil suit." (Para 17).
The question whether a particular person has got a right to succeed, in accordance with law and custom, to the jagir left by the deceased is a question of civil nature and there being no law at present to oust the jurisdiction of civil courts either expressly or by implication, they have got the jurisdiction to determine such question. (Para 11). Case law referred— (1) Virendra Singh vs. State of Utter Pradesh (AIR 1954 Supreme Court, p. 447).
(1) Whether decision by the Rajpramukh in the matter of recognition of a successor to a jagir is liable to be challen-gee by a civil suit ?
(2) If the answer to the above question be in the negative. whether the remedy of the unsuccessful litigant lies by a petition to this Court under Art. 226, or the matter is one to which the provisions of Art. 363 of the Constituti6n would apply ?
2. These questions arise out of an application under Art. 226 of the Constitution by the petitioner Thakur Bahadursingh challenging the order of the Rajpramukh of Rajasthan (hereinafter to be referred to as the Rajpramukh) dated the 16th of September 1952 by which the respondent No. 2 Basant Singh was recognised as successor to the late Jagirdar Thakur Gopalsingh of Digwara in Alwar District on the ground that sanction for his adoption had been given by the Rajendra Shashan of the erstwhile Alwar State. It has been alleged in the petition that Th. Sheodan Singh the father of Gopalsingh as well as of petitioner was Jagirdar of -/6/-share in the jagir of Digwara and that on his death his eldest son Gopalsingh succeeded to the jagir. Th. Gopalsingh had no male issue and his wife had predeceased him. He, therefore, made an application dated the 24th of February, 1945 to the Prime Minister of Alwar permission to adapt the respondent Bantasingh as his son. This premission was accorded by the Executive Council of the then Alwar State on the 2nd of May, 1946 and an appeal by the petitioner to His Highness the Maharaja of Alwar failed, although Th. Gopalsingh had submitted two applications, one dated the 23rd of May, 1940 and the other dated the 14th of June, 1946 to the effect that he did not wise to take the respondent No. 2, Basantsingh,in adoption and so no permission was necessary. Th. Gopalsingh died on the 7th of July, 1946, but despite the death of Th. Gopalsingh and his application dated the 23rd of May, 1946 and the 14th of June, 1943, His Highness the Maharaja of Alwar ignoring the provisions of Jagir Rules of Alwar State, accorded permission of Basantsinghs adoption on the 11th of October, 1946. However, the petitioner filed an application for mutation of his name claiming that according to the Jagir Rules, he was the nearest heir to Th. Gopalsingh and that the respondent No. 2 had no right whatsoever because he had not been adopted in accordance with Hindu Law. An inquiry was made in the matter and the Mahkama Jagir of Alwar State submitted a report that no ceremony of adoption of respondent No. 2 ever took place. In the meantime, Alwar State was merged into the Matsya Union and the Government of Matsya which was the successor Government of erstwhile Alwar State held that no mutation could be sanctioned in the name of respondent No. 2 as he was not actually adopted and this decision was upheld by the Matsya Mantri Madal on the 7th of May, 1949. Against this decision of the Matsya Mantri Mandal a review application was filed by respondent No. 2 and as the present State of Rajasthan had come into being in the meanwhile, the review application was decided by the respondent No. 7, the Rajpramukh on the 16th of September, 195 2 by which he set aside the order of Matsya Mantri Mandal dated the 7th of May, 1949 and recognized the succession of the respondent No. 2. It has been submitted that the recognition of the respondent No. 2 by the Rajpramukh was against the provisions of the erstwhile Alwar State Jagir Rules and was patently erroneous. It has therefore, been prayed that the order of the Rajpramukh dated the 16th of September, 1952 be quashed.
3. No reply was filed to this petition on behalf of the respondents, but the Division Bench which heard the petition thought it proper to give a notice to the Advocate General as important questions of law were involved as to the jurisdiction of the Rajpramukh.
4. We have heard Mr. D. P. Gupta counsel for the petitioner as well as
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