1948 Supreme(Ori) 1

HIGH COURT OF ORISSA
Ray, C. J. , Das And Narasimham, JJ.
SARADHAKAR NAIK - Appellant
Versus
THE KING - Respondent
Criminal Misc.  3  Of  1948
Decided On : SEPTEMBER 09, 1948

Headnote:

The four cases, mentioned above, arising out of as many petitions, were some of the pending cases in respect of which the jurisdiction of the Patna High court ceased from the 26th July, under Orissa High Court Constitution Order. They have since been transferred to this Court, and heard analogously, as the points for decision are common to all and will be governed by this order. The States of Bamra and Kalahandi were sovereign States and the territories belonged to the respective Rulers. Ref: Aitohinson's Treaties and Engagements, edn. 6, vol. I, pp. 368 and 369. Stress is laid upon the words "your territories" in the 'sananda' referred to. The British suzerainty lapsed on 16th August 1947, that by an Instrument of accession, dated 16th August 1947, the Statea acceded to the Dominion of india on terms, inter alia, that the Dominion Legislature might make laws, for the acceding States, in respect only of (i) defence, (ii) external affairs, (iii) communication, and (iv) other ancillary matters, as set out in the Schedule of 'the Instrument' executed in that behalf that except for the accession and subject to the terms thereof, the States retained their (internal) sovereignty and territorial integrity; that the subsequent agreement of 15th December 1947, was 'not binding being inchoate and incomplete on account of omission of a vital term relating to consideration not having been settled nor incorporated in it (this contention was not pressed at the hearing); that inapite of that agreement, neither the sovereignty, nor the territorial integrity of the States were at all affected; ibat in any view, the Rulers of the Statea had no powers to cede (not pressed at hearing) nor in fact did they cede the legislative power to the Indian Dominion, and that, under the circumstances, the notification of the Orissaa Govern. ment extending the Orissa Maintenance of Public Order Act, 1948, to the said States was ultra vires and, the arrest and detention of the prisoners were illegal, and without jurisdiction.

Fact of the Case:

The States of Bamra and Kalahandi were sovereign States and the territories belonged to the respective Rulers. Ref: Aitohinson's Treaties and Engagements, edn. 6, vol. I, pp. 368 and 369. Stress is laid upon the words "your territories" in the 'sananda' referred to. The British suzerainty lapsed on 16th August 1947, that by an Instrument of accession, dated 16th August 1947, the Statea acceded to the Dominion of india on terms, inter alia, that the Dominion Legislature might make laws, for the acceding States, in respect only of (i) defence, (ii) external affairs, (iii) communication, and (iv) other ancillary matters, as set out in the Schedule of 'the Instrument' executed in that behalf that except for the accession and subject to the terms thereof, the States retained their (internal) sovereignty and territorial integrity; that the subsequent agreement of 15th December 1947, was 'not binding being inchoate and incomplete on account of omission of a vital term relating to consideration not having been settled nor incorporated in it (this contention was not pressed at the hearing); that inapite of that agreement, neither the sovereignty, nor the territorial integrity of the States were at all affected; ibat in any view, the Rulers of the Statea had no powers to cede (not pressed at hearing) nor in fact did they cede the legislative power to the Indian Dominion, and that, under the circumstances, the notification of the Orissaa Govern. ment extending the Orissa Maintenance of Public Order Act, 1948, to the said States was ultra vires and, the arrest and detention of the prisoners were illegal, and without jurisdiction.

Finding of the Court:

The agreement is not a supplementary instrument of accession and is consequently not controlled by the limitations imposed by Section 6 of that Act. It is an agreement between two sovereign states in consequence of which one sovereign State agreed to surrender complete jurisdiction within his State to another sovereign State retaining to himself "nothing more than a bare, nominal, or dormant sovereignty" (Illbert's government of India, Ed. 3, p. 426 ). The exercise of jurisdiction by one sovereign State within the territories of another sovereign State though there may not be actual cession of territory by the latter to the former, is not a new concept in international law.

Issues: Whether the agreement dated 14th December 1947 (hereinafter referred to as the agreement) ceded to the Central government legislative powers in Bamra and Kalahandi and that consequently neither the Central Government nor their delegated authority has the power to determine what shall be the law in the said States.

Ratio Decidendi: The agreement is not a supplementary instrument of accession and is consequently not controlled by the limitations imposed by Section 6 of that Act. It is an agreement between two sovereign states in consequence of which one sovereign State agreed to surrender complete jurisdiction within his State to another sovereign State retaining to himself "nothing more than a bare, nominal, or dormant sovereignty" (Illbert's government of India, Ed. 3, p. 426 ). The exercise of jurisdiction by one sovereign State within the territories of another sovereign State though there may not be actual cession of territory by the latter to the former, is not a new concept in international law.

Final Decision: The petitions are dismissed.