STATE OF SERAIKELLA v. UNION OF INDIA AND ANOTHER
Citation: [1951] 1 S.C.R. 474; 1951 INSC 24
Court: Supreme Court of India
Bench: HARILAL JEKISUNDAS KANIA , M. PATANJALI SASTRI, MEHR CHAND MAHAJAN, SUDHI RANJAN DAS, VIVIAN BOSE
Judgment date:
Case summary
1951 INSC 24. Supreme Court of India judgment dated 1951-04-06. STATE OF SERAIKELLA v. UNION OF INDIA AND ANOTHER. Read the judgment and case details on...
Judgment text
STATE OF SERAIKELLA . April 6. fl. UNION OF INDIA AND ANOTHER (Suit No. 1 of 1950) STATE OF DHENKANAL fl. UNION OF INDIA AND ANOTHER (Suit No. 2 of 1950) STATE OF BAUDH fl. UNION OF INDIA AND ANOTHER (Suit No. 3 of 1950) STATE OF TIGIRIA fl. UNION OF INDIA AND ANOTHER (Suit No. 4 of 1950) STATE OF ATHGARH fl. UNION OF INDIA AND ANOTHER (Suit No. 5 of 1950) STATE OF BARAMBA fl. UNION OF INDIA AND ANOTHER (Suit No. 6 of 1950) STATE OF NARSINGPUR "· UNION OF INDIA AND ANOTHER (Suit No. 7 of 1950) t SHRI HAluLAL KANIA C. J. , PA"rANJ ALI SASTRI, MEH1l CHAND MAHAJAN, S. R. DAS and VIVIAN BosE JJ. ] Constitution of India, Arts. 363 (! ), 374 (2)-Indian States- Accession to India under Instruments of Accession-Orders treat-jng States as having merged in lnd~a-Suit to declare orders ultra vires and enforce rights under Instrument of Accession-Suits filed in Federal Court before 26th /anuary 1950-/urisdiction of Supreme Court to try such suits-Scope of Arts. 363 (1) and 374 (2).
Article 374 (2) of the Constitution of India provides that all suits, appeals and proceedings pending in the Federal Court at the commencement of this Constitution shall stand removed to the Supreme Court and the Supreme Court shall have jurisdiction to hear and determine the same. Article 363 ( l) provides that notwithstanding anything in this Constitution, neither the Supreme Court nor any other Court shall have jurisdiction in any dispute arising out of any provision· of a treaty, agreement or similar instrument entered into or executed before the commencement of this Constitution by any Ruler of an Indian State. Certain States had acceded to the Dominion of India under Instruments of Accession in August 1947. They were treated as having merged in the Province of Bihar and were administered as a part of that Province under Orders issued under the Extra Provincial Jurisdiction Act, 1947, and · s.
290-A of the Government of India _Act, 1935 (as amended by the Constituent Assembly Act of 1949). The States instituted suits in the Federal Court of India before the 26th January, 1950, for a declaration that the various Orders under which the States came to be administered as a part of Bihar and the laws under which those Orders were ·made were ultra vires and void and the Province of Bihar had accordingly no authority to carry on the administ - Tation of the States. The suits stood transferred to the Supreme Court of India under Art. 374 (2) of the new Constitution: Held, per KANIA C. J. , PATANJALI SASTRI J. and BosE J. (MAHAJAN ). dissenting). -That even though the suits were instituted before the new Constitution came into force and under Art. 374 (2) they stood removed to the Supreme Court, nevertheless the jurisdiction of the Supreme Court under Art. 374 (2) was controlled by Art. 363 ( l) of the Constitution in view of the .
opening words of the latter namely, "notwithstanding anything in this Constitution". As the suits were really to enforce the plaintiffs rights under their Instruments of Accession and the dispute between the parties really arose out of those instruments, under Art. 363 (1) the Supreme Court had no jurisdiction to hear the suits. This view did not involve giving any retrospective effect to Art. 361 (3). MAHAJAN J. (contra. )-Art. 363 takes away the jurisdiction of the Supreme Court on the subjects mentioned therein if suits about them were instituted after the 26th January, 1950, or disputes concerning them arise after that date, while Art. 374 { 12) empowers the Supreme Court to hear and determine suits which were pending in the Federal Court on the 26th January, 1950, and which that court was competent to hear and determine. There is no confilct between these articles, and the Supreme Court had jurisdiction to hear the suit. DAs J.
-As the plaintiff States, by virtue of the States Merger (Governor's Provinces) Order, 1949, were immediately before the commencement of the new Constitution being administered as if they formed part of the Provinces of Bihar or Orissa the territories of Bihar and Orissa included the territories of the plaintiff States under Art. I of the Constitution read with the third paragraph of Part A of the First Schedule. These States consequently ceased to be States so far as the new Constitution is concerned, they had no legal existence as acceding States, and could not therefore be recognised as such States by Courts, as Courts arc bound by the Constitution and cannot question the validity of any of its provisions. The suits must therefore be regarded as . having. abated. 0IUGJNAL JuIUSDICTION. Suits Nos. 1 to 7 of 1950. The facts are stated in detail in the judgment of KANIA c J. N. C. Chatterjee (A. N. Roy Choudhry, with him) for the plaintiffs in suits Nos. 1, 3, and 6. Dr. N. C.
Sen Gupta (A. N. Roy Choudhry, with him) for the plaintiffs in suits Nos. 2, 4, 5, and 7. M. C. Setalvad Attorney-General for India (G, N. /oshi with him) for the defendants in all the suits. 1951. April 6. The following judgments were delivered:- KANIA C J. -This is a suit filed on the 15th of January, 1950, under the Original Jurisdiction of the Federal Court as it was functioning before the Constitution of India came into force on the 26th January, 1950. The State of Seraikella was a State in Orissa and its Ruler was Raja Aditya Pratap Singh Dea. On the 16th August, 1947, the plaintiff State acceded to the Dominion of India by virtue of an Instrument of Accession executed by its Ruler and accepted by the Governor-General of India under section 6 of the Government of India Act, 1935.
After reciting that under the Indian Independence Act, 1947, the Dominion of India was set up and that under the Government of India Act, 1935, as adapted, it provided that an Indian State may accede to the Dominion of India by an Instrument of Accession, the Instrument stated that the Raja acceded to the Dominion of India and that he accepted that the · matters specified in the Schedule to the Instrument were the matters with respect to which the Dominion Legislature may make laws for the State. The three principal heads mentioned in the Schedule to that Instrument were Defence, External Affairs and Communications, with particulars detailed under each of those heads. The Instrument expressly provides that by executing the same the Ruler shall not be deemed to be committed to the acceptance of any future Constitution of India or to fetter his discretion to enter into arrangements with the Government of India under any such future ,Constitution.
It further expressly provides that nothing in the Instrument affects the continuance of the sovereignty in and over the State, or save as provided by or under the Instrument, the exercise of any powers, authority and rights so far enjoyed by him as Ruler of the State or the validity of any law then in force in the State. It also provides that the terms of the Instrument of Accession are not to be varied by any amendment of the Government of India Act or of the Indian Independence Act, · 1947 unless such amendment is accepted by the Ruler or by an Instrument supplementary to the said Instrument. It was denied in the plaint that any such supplementary instrument was executed by the Ruler and ·no amendment of the aforesaid Acts has been accepted by him or the plaintiff State.
A Standstill Agreement was also executed by the Ruler under which it was agreed that matters of common concern and specified in the Schedule to the Agreement would continue between the Dominion of India and the said State until new agreements were made in that behalf. On the 15th December, 1947, an agreement is alleged to have been entered into between the Governor- General of India and the Ruler of the plaintiff State. 'By that document the Raja ceded to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the governance of 4-62 s. a. India/59. the State and agreed to transfer the administration of the State to the Dominion Government on the 1st of January, 1948, Article 2 contained a provision for the Privy Purse of the Raja and it is contended by the plaintiff that when the Raja signed the document the figure in this clause had been left -blank.
Under article 3 of that agreement, it was provided that the Raja would be entitled to the full ownership, use and enjoyment of all private properties belonging to him on the date of the agreement and that by the 1st of Janliaty, 1948, the Raja will furnish to the Dominion Government an inventory of all immovable propertieS; securities and cash held by him as such private pro-perty. Under article 4, the personal privileges enjoyed by the Raja and the members of his family mentioned . therein had to continue. On the 24th of December, 1947, an Act to provide for the exercise of certain extra-provincial Jurisdiction of the Central Government (Act XLVII of 1947) was passed.
Under section 3 of that Act it was provided that it shall be lawful for the Central Government to exercise extra-provincial jurisdiction in such manner as it thinks fit and the Central Government may delegate any such jurisdiction as aforesaid to any officer or authority in such manner and to such extent as it thinks fit. Under section 4 it was provided that the Central Government may by notification in the official Gazette make such orders as may seem to it expedient for the effective exercise of any extra-provincial jurisdiction of the Central Government. A notification under' section 4 of that Act was thereafter issued by the Central Government delegating, under section 3, the power£ contained in that Act to the Province of Orissa. On the 18th of May, 1948, that notification was can-celled and the powers in respect of the two specified States including the plaintiff State were delegated to the Province of Bihar.
On the same day the Government of Bihar passed an order called "The Seraikella and Kharaswan States Order" providing for the administration of the two States. On the 5th of January, l! m, the Legislative Assembly of India, which was also functioning as the Constituent Assembly, passed the Constituent Assembly Act I of 1949 and added section 290-A to the Government of India Act, 1935.
That section runs as follows :- "Administration of certain Acceding States as a Chief Commissioner's Province or as part of a Governor's or Chief Commissioner's Province- (1) Where full and exclusive authority, jurisdiction and powers for and in relation to the Government of any Indian State or of any group of such States are for the time being exercisable by the Dominion Government, the Governor-General may be Order direct (a) that the State or the group of States shall be administered in all respects as if the State or the group of States were a Chief Commissioner's Province; or (b) that the State or the group of.
States shall ·be administered in all respects as if the State or the group of States formed part of a Governor's or a Chief Commissioner's Province specified in the Order : Provided that if any Order made under clause (b) of this sub-section affects a Governor's Province, the Governor-General shall before making such Order, ascertain the views of the Government of that Province both with respect to the proposal to make the Order and with respect to the provisions to be inserted therein. (2) Upon the issue of an Order under clause (a) of sub-section ( 1) of this section, all the provisions of this Act applicable to the Chief Commissioner's Province of Delhi shall apply to the State or the group of States in respect of which the Order is made. (3) The Governor-General may in making an Order under sub-section (1) of this section give such supplemental, incidental and consequential directions (including directions as to representation in the Legislature) as he may deem necessary.
( 4) In this section, reference to a State shall include reference to a part of a State. " On the 27th of July, 1949, the Governor-General of India promulgated an Order called the States Merger (Governors' Provinces) Order of 1949. The result of that was that the plaintiff State is claimed to have merged in the Province of Bihar. The plaintiff State contends that the Government of Orissa wrongfully and illegally purp9rted to administer the plaintiff State by virtue of the . Notification of the 23rd of December, 1947, under Act XLVII of 1947. It is claimed that the Act was and is ultra vires and ot no effect and not binding on the plaintiff State. The alleged agreement of the 15th of December, 1947, is contended to be void for want of consideration and is inoperative. Indeed it is contended that as the figure was left blank there was no agreement at all. It is contended that on the 18th May, 1948, without the consent and approval of the plaintiff State or its .
Ruler, the Province of Bihar wrongfully and illegally took over the administration of the State and passed the Seraikella and Kharsawan Administration Order, 1948. In paragraph 10 of the plaint it is contended that the Dominion of India had no authority to go beyond the Instrument of Accession, had no authority to delegate powers to the Province of Bihar to administer the plaintiff State and the said Order, in any event, is illegal and inoperative as it went beyond the ambit of . the Extra Provincial Jurisdiction Act, 1947. As regards the Order issued by the Governor-General on the 27th of July, 1949, it is contended that he had no authoritii or power to promulgate the Order and the State Merger Order of 1949 purporting to be passed under section 290-A of the Government of India Act, 1935, is also void. The enactment of the Constituent Assembly Act I of 1949 is contended to be ultra vires and illegal.
That Act is further challenged on the ground that it was enacted without the assent of the Governor- General of India. It is contended in the plaint that the defendants, viz. , the Union of India and the State of Bihar, deny and are interested in denying the existence or entity of the plaintiff State and in disputing the rights, privileges, powers and prerogatives of its Ruler as well as the right to the private properties as set out in the annexure. The States Merger Order of s. e. R. SlJPREME COU. RT REPORTS 481 l949 is . contended to be an abuse -of power and autho.. rity and a fraud on the Government of India. Act, 1935, and the Indian Independence Act, 1947, It is contended that the Government. of India or the Constituent Assembly had no ~uthprity to pass any legisla- . tion on ·a matter not specified in the Schedule to the Instrument of Accession.
In paragraph 19 of the plaint it is contended that the dispute between the parties comprised and involyed questions on which the existence or extent of legal rights depends and the plaintiff State is a party to the same. These disputes concern the intc;rpretation of the Government of India Act, 1935, and/or of an order made thereunder J. nd/or the interpretation of the Indian Independence · Act and/or an order made thereunder and/or the . extent of. authority vested in the Dominion by virtue of the Instrument of Accession of the plaintiff . State. The prayers are: (a) Interpretation of the relevant provisions of the Government of India Act, 1935, the Indian Independence Act, 1947, and the States Merger Order, 1949. (b) For a declaration that the Dominion Government had no authority to assume any power or jurisdiction beyond the matters specified in the Instrument of Accession and had no authority to delegate · any · power in relation to the plaintiff .
State to the Provincial Government of Bihara ( c) For a declaration tha~ Act XLVII of 1947, the Constituent Assembly Act I . of 1949, section 290-A of the Government of India Act, 1935, as adapted, and the States Merger Order, 1949, are ultra vires, illegal and . inoperative in so far as they are made applicable to the plaintiff ~tate and Orders made thereunder as also actions taken or purported to be taken thereunder; (d) For a declaration that the Province of. Bihar had no authority or jurisdiction to carry on tlie administration ·of the plaintiff State and tMt. the alleged merger was illegal and unauthorized : ( e) For a declaration as to the rights of th. e parties and as to the extent of the authority of the Domini9n of India over and in respect of the plaintiff State; (f) For a declaration that· the. plaintiff State retained its entitv and territ6ri:il .
integrify; that its administration' should in any event be carried on in the name of its Ruler and that his rights and privileges as set out in annexure 'C' and his private properties as set out in annexure 'D' remain unaffected ; and (g) For a declaration that the Province of Bihar had no authority or jurisdiction over the plaintiff State and that it should not interfere in any way with the State or the sovereignty of its Ruler. Six other suits by other States of the former Eastern Agency were filed also before the Constitution of India came into force on the 26th of January, 1950, on the same lines, except that in four of them the agreement similar to the agreement of the 15th December, 1947, is admitted to have been executed by the Ruler and is admitted to be binding on the plaintiff. The material part of section 6 of the Government of India Act, 1935, which provides for the accession of Indian States, runs as follows :- 6. Accession of Indian States.
-(1) An Indian State shall be deemed to have acceded to the Dominion . if the Governor-General has signified his acceptance of an Instrument of Accession executed by the Ruler thereof whereby the Ruler on behalf of the State :- (a) declares that he accedes to the Dominion with the intent that the Governor-General, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of his Instrument of Accession, but, subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State such functions as may be vested in them by order under this Act; and (b) assumes the obligation of ensuring that due effect is given within the State to the provisions of this Act so far as they are applicable therein by virtue of the Instrument of Accession. (!
) An Instrument of Accession shall specify the matters which the Ruler accepts as matters with respect to which the Dominion Legislature may make laws for the State, and the limitations, if any, to which the power of the Dom. inion Legislature to ~e laws for the State, and the exercise of the cxecuttve authority of the :Dominion in the State, are respectively to be subject. (3) A Ruler may, by a ,supplementary Instrument eYl"CUted by him and accepted by the Governor-General, vary the Instrument of Accession of his State by extending the functions which by virtue of that Instru• ment are exercisable by any Dom. inion authority in :relation to his State. • • • • (5) In this Act a State which has acceded to the Dominion is referred to as an Acceding State and the Instrument by virtue of which a State has so acceded construed together with any supplementary Instrument executed under this section, is referred to as the Instrument of Accession of that State ....
" A supplementary · Instrument executed under sub-section (3) by the Ruler and accepted by the Governor- General is, by virtue of sub-section (5), therefore to be considered a part of the Instrument of Accession of 1 that State. The supplementary Instruments signed by the four States only bring within the scope of discussion those supplementary Instruments on the. footing that they were a part of the Instrument of Accession. Written statements have been filed on behalf of the defendants contesting the contentions raised in the , plaint. There are several contentions in respect of the jurisdiction of the Court. Several contentions cover pure issues of law and some raise issues of fact in respect of the document of 15th December, 1947. The parties agreed on the issues and they have been filed in Court. It was further agreed between the parties that issues 1, 3, 4, 5, 6 and 7 may be tried as preliminary issues and we have heard counsel on those issues fully.
The-first issue is in these terms: "Whether, having regard to the subject-matter of the suit and the provisions contained in article 363 (1) of the Constitution of India, this Hon'ble Court has jurisdiction to entertain the suit. " 484 StlJP. llEME COURT REOORTS [1'951] In the view I take of this issue I do not think it necessary to discuss the other preliminary issues raised on the question of jurisdiction. For determining this issue, it may be noted that the Federal Court, prior to the 26th of January, 1950, had original jurisdiction in respect of matters covered· by section 204 of the Gove. rnment of India Act. Under that section, that Court had jurisdiction in any dispute between a State and the Dominion if and in so far as the dispute involved any question (whether of law or fact) on which existence or extent of a legal right depended, provided .
that the said jurisdiction did not extend to a dispute to which a ·State was a party unless the dispute was covered by clause (a) (i) of the Proviso, which runs as follows:- "Provided that the said jurisdiction shall not extend to- · (a) a dispute to which a State is a party, unless the dispute- (i) concerns th f the Government of India Act, that the Constituent Assembly Act, I of 1949, was inoperative as it was enacted without the consent of the Governor-General that the Merger Order prejudicially affects the existence and entity of the State, its position and status :and goes beyond the ambit of section 290-A. Shorn of all its verbiage, the plaint in substance denies the agreement of the 15th December, 1947, on the foot of which the plaintiff State was integrated with· the territories of the Indian Dominion and on the basis of which Act XL VII of 1947 was made applicable to it, · and the notifications mentioned in the plaint were issued.
On the basis of the same agreement section 290-A of the Government of India Act was also made · applicable to the plaintiff State. By reason of the denial <>f the agreement of the 15th December it is asserted by the plaintiff that the actions of the Dominion Government in first merging the plaintiff State with the Province of Orissa and subsequently meming it with the Stat. '! of · Bihar is unlawful and ille;al ; in other words; the plaintiff alleges that in the absence of any supplementary agreement as contemplate.
cl by section 6, sub-section (3), of the Government of India Act, 1935, the Dominion of India had no authority whatsoeyer to bring the plaintiff State within the ambit of the different statutes mentioned above and that all its acts in depriving the State of its legal entity are acts in excess of the terms of the Instmment of Accession and amount to usurpation of the· sovereignty of the plaintiff State which was retained· by it under that Instrument and that being so, the· plaintiff is entitled to a declaration from this Court to· the effect that the plaintiff State still retains its entity and territorial integrity and · that the various orders and laws under which it has been integrated with the State of Bihar are void and ultra vires and are acts of encroachment on the sovereignty of the State• Shortly stated, the plaintiff seeks by this suit to specifically enforce the terms of the Instrument of Accession by· denying the existence of the agreement of.
15th December, 1947, or by pleading its invalidity. The suit brought against the Dominion of India and the. Province of Bihar has now to be continued and determined against the Government of the Union of India and the State of Bihar in view of the provisions of article 300 of the Constitution. Both the defendants contested the suit on similar grounds. The following-agreed issues between the parties bring out the points' in dispute that arise out of the pleadings : 1. Whether having regard to the subject matter· of the suit and the provisions contained in article 36J ( 1) of the Constitution of India, this Hon'ble Court has jurisdiction to entertain the suit ? 2. Whether the plaintiff had ceased to be an acceding State· and a distinct legal entity at the date· of the institution of the suit ? 3.
\Vhether the Federal Court had jurisdiction to-entertain the suit under section 204 of the Government· of India Act, 1935, and particularly in regard to thc questions as to the existence and validity of the agreement of merger ? 4. Whether this Court has jurisdiction to entertain the suit? 5. Whether the suit is maintainable in view of the absence of the requisite notice to the defendants under section 80 of the Civil Procedure Code ? 6. Whether having regard to the provisions of the Constit1ftion, the plaintiff has a legal capacity and · is entitled to maintain the sμit ? 7. Whether this Court is competent to examine the validity of section 290-A of the Government of India Act, 1935, enacted by the Constituent Assembly ? 8. Whether the States Merger (Governor's Provinces) Order dated the 27th July, 1948, made by the Governor-General under section 290-A of the Government of India Act, 1935, is valid and competent ? · 9.
Whether the Ex:tra Provincial Jurisdiction Act, 1947, was ultra vires and invalid ? 10. Whether the delegation · of authority by the Government of India to the Government of Orissa was ultra vires and illegal ? 11. Whether the Constituent Assembly was competent to enact the Constituent Assembly Act I of 1949 under the provisions of the Indian Independence Act ? 12. Whether the Seraikella and Kharsawan States (Amendment Act) Order, 1948, is ultra vires and goes beyond the ambit of the Extra Provincial Jurisdiction Acr. 1947? 13. Whether the plaint discloses any cause of action ? 14. Whether the agreement dated 15th December, 1947, is a concluded agreement between the parties ? 15. Whether the agreement dated 15th December, 1947, is void and inoperative for want of consideration ? 16. Whether the agreement dated 15th December, 1947, is a political agreement and not a civil contract ? 17.
Whether the administration of the plaintiff was handed over to the Government of Bihar under Notification No. 217-P dated 18th May, 1948, m con-sultation with the Ruler of the plaintiff State ? With the consent of parties it was decided to hear arguments on issues I, 3, 5, 6 and 7 as they could be decided without taking any evidence. Issue I : As regards this issue, it was contended by the learned Attorney-General that this Court has no jurisdiction "to determine any dispute arising out of any provisio11 of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which . the Government of the Dominion of India .. . . was a party and· \vhich· has or has been continued in operation after such commencement ....
," and that the present suit relates to a dispute of this nature and though the suit is removed to the records oi the Court from ~he Federal Court, this Court must decline to hear it. Article 363 on the basis of which this contcro-tion is raised provides thus : "Notwithstanding anything in this Constitution but subject to the provisions of article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement ...... which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which the Govem;nent of the Dominion of India ot anv of its predecessor Governments was a party and whi~h has or has been continued in ·operation after such commencement ... . " The learned Attorney-General pointed out that particular subjects were removed from the jurisd.
ic-tion of this Court and it had no power or authority to adjudicate on them nqtwithstancling any other provision in the Constitution to the contrary. The learned counsel for the plaintiff tontroverted this contention and urged that article 363 of the Constitution had no retrospective effect and could not affect suits that were pending · in the Federal Court and which uncle( the provisions of article 374 (2) · were removed to the Supreme Court and regarding which jurisdiction was conferred on it under the provisions of that article. It was said that article 363 could only have application to suits or disputes brought or raised 'after the 26th January, 1950, and not to suits that had aircady . been brought before that date. It was further contended that the plaintiff's suit did not arise out of any treaty or agreement inasmuch . as it denied the very existence of such a treaty or agreement.
It was further pointed out that the suit did not relate to any of the subjects that were within the scope of this article. In order to appreciate these contentions it is necessary to refer to article 374 (2), which provides as follows :- "All suits, appeals and proceedings, civil or criminal, pending in the Federal Court at the commencement of this Constitution shall stand removed to the Supreme O>Urt, and the Supreme Court shall have jurisdiction to hear and determine the same .. " The question for decision under this issue concerns the true scope of the provisions of articles 363 and 374 (2) of the Constitution. It is easy to frame difficult conundrums on the material offered by the. two articles in question but when one considers them without a desire for controversy, they soon open to a clear and simple meaning.
Article 363 takes away the jurisdiction of this Court on certain subjects if suits about them are instituted ~fter the 26th January, 1950, or disputes concerning them arise after that date, while article 374 (2) empowers this Court to hear and to determine suits which were pending in the Federal Court of India on the 26th January, 1950, and which that court was competent to try and determine. There is, in my opinion, no conflict between these two articles. They operate on two different fields. The Feder11l Court of India had jurisdiction by virtue of the provisions of section 204 of the Government of India Act . ' . , 1935, to· determine certain suits between acceding States and the Government of India with respect to certain subject matters and that jurisdiction was continued for the time being and was conferred on this Court.
The original jurisdiction to the Supreme Court is conferred by article 131 in respect of similar suits bur it does not embrace all the subjects that were covered by section 204 of the Government of India Act, 1935. In Keshavan Madhava Menon v. The State of Bom- 1 bay ( ) it was held by this Court that the Constitution of India has no retrospective operation. This proposi-tion was not disputed by the learned Attorney-General. Article 363 of the Constitution has therefore to be given a prospective operation and as such it cannot affect suits pending before the 26th January, 1950. It was contended by the learned Atton1ey-General that though the article has no retrospective operation, yet the language employed in it affects the jurisdiction of this court in respect of suits that were pending in the Federal Court if they relate to subjects stated therein. Emphasis was laid on the opening words of the article. In my opinion, this contention is without force.
The opening words of the article do not make the article retrospective. Once it is held that the whole article operates prospectively on suits that are brought after the 26th January, 1950, or on disputes that arise after that date, then the opening words of the article cannot affect cases transferred to this Court from the Federal Court under the provisions of article 374 (2) of the Constitution. It is a well known rule of construction of statutes that no statute unless it be a statute dealing with procedure only should be construed as having retrospective effect, unless the statute expressly makes its provisions retrospective or retrospective effect must be given to it by necessary implicatioμ or intend-ment. The law leans against giving retrospective effect to statutes. Reference in this connection may be made to the decision of the Court of Exchequer in Moon v. Burden(•). Ther~ the learned Barons of the Exchequer had to consider whether section 18 of the Gaming Act, ~ and 9 Viet.
, Chapter 109, was retrospective. The words of that section Were as follows :- "And be it enacted, that all contracts or agreements, whether by oral or in writing by way o~ gaming or, (r) [1951] S. C. R. 228. (2) [1884] 2 Ex. 22. wagering, shall be null and void ; and that no suit sh~ll he brought or maintained in any court of law or equity for recovering any sum of money or valuable thing . alleged to be won upon any wager, or which shall have been deposited in Mie hands of any person to decide the event on which ~ny wager shall have' been made. " Although the section provided that no suit should be brought or maintained in any court for the recovery of any such sum, nevertheless the Court of Exchequer held that that section did not apply to suits which had been instituted though not decided before . the Act came into force.
It was observed by Baron Parke that the enactment "that all contracts or agreements, by way of gaming or wagering shall be null and void", if it stood by itself, ought most clearly to be construed :as applicable to future contracts and agreements· only, and that if the next part stood alone, it would, though not so clearly, be construed to apply to future actions only and it should be construed to mean, not that an action already brought should not be maintained but that no action should afterwards be brought, or, if 1 brought, maintained. In Beadling v. Coll( ), the Court of Appeal in England held that the Gaming Act, 1922, which provided that no action under section 2 of the Gaming Act, 1855, to recover back money paid in respect of gaming debts "shall be entertained in any court", did not apply to actions which had been com-menced before the Gaming Act of 1922 came into force. 2 In Henshall v. Porter ( ), McCardie J.
, went further and held that the Gaming Act, 1922, which prohibited . all courts from entertaining such suits, did not apply to cases Where the cause of action had arisen before the passing of the Act though no suit had been instituted until the Act had been passed. The rule laid down in these cases was expressly approved by the Federal Court of India in The United Provinces v. Mst. Atiqa 8 Begum( ) and the learned Attorney-General frankly conceded that the rule laid down therein was not contested. It seems to me that this rule of construction (1) P922]39 T. L. R. 128. (3) [1940] F. C. R. 110. (~) [1923] 2 K. B. 193. has apposite application to the construction of article 363 of the Constitution and the article has no retrospective operation and only affects disputes that would arise after the 26th January, 1950.
As pointed out in Willis in his Constitutional Law, the same principle~ govern the construction of constitutions and the construction of statutes, but that the dominant force in the construction of constitution is to construe one part in the light of the provisions in the other part, as the. constitution is a logical whole, each provision of which is an integral part of itself. In the majority judgment of this Court in Keshavan Madhava Menon v. The State of Bombay(') it was observed that the idea of the pre-servation of past inchoate rights or liabilities and pending ·proceedings to enforce the same is not foreign or abhorrent to the Constitution of India and that idea can be given effect to if article 363 ( 1) is construed as above.
Any other interpretation of article 363 would make the provisions of article 374 (2) par-tially nugatory inasmuch as certain suits pending in the Federal Court under section 204 of the Government of India Act, though removed to this Court with a direction that they have to be determined by us, could not be heard by this Court. Such a result is avoided if article 363 is construed as suggested by me. The contention raised by the learned counsel for the plaintiff that this suit does not arise out of any agreement as it questions its very existence does not seem sound because the dispute in this case clearly arises out of the provisions of the Instrument of Accession. The next contention raised that the suit in so far as it questions the validity of certain statutes by . inter-preting the provisions of the Government of India Act and the Independence Act has force as these subjects fall outside the scope of article 363. The question of jurisdiction has to.
be determined on the allegations made in the plaint and cannot be decided by considering the written statement and the validity of the grounds alleged in the plaint. (1) [1951] S. C. R. 228. For the reasons given above I respectfully beg to differ from the view of the majority of the Court on this issue and hold that issue l should be decided in favour of the plaintiff. Issue 3: Section 204 of the Government ·of India Act provides as follows :- · "(l) Subject to the provisions of this Act, the Federal Court shall, to the exclusion of any other court, have an original jurisdiction in any disp?
te between any two or more of the foliowing parties, that is to say, the Dominion, any of the Provinces or any of the Acceding States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends : Provided that the said jurisdiction shall not extend to- (a) a dispute to which a State is a party, unless the dispute- (i) concerns the interpretation of this Act or of an Order in Council made thereunder 'before the date of the establishment of the Dominion, or of an order made thereunder on or after that date, or the interpretation of the Indian Independence Act, 1947, or of any order made thereunder, or the extent of the legislative or . executive authority vested in the Dominion by virtue of the Instrument of Accession of that State ; or .... ''.
Under this section the Federal Court was· conferred exclusive jurisdiction on disputes between the Dominion, any of the Provinces or the Acceding States, provided that in the case of the Acceding· States the conditions laid down in clause (a) cited above were fulfilled. It was contended by the learned Attomey- General that the basic relief claimed in the plaint is that the Instrument of Accession subsists and that in substance the suit is to enforce the terms of the Instrument of Accession on the allegation that these have been contravened, but that the fact is that the Instrument of Accession was superseded by the agreement of the 15th December, 1949, and is no longer subsisting, M5SCI 6-62 S. C. India/59 510 SUPREME COURT REPOR'. fS [1951] and that beillg so, the subject matter of this dispute is outside the scope of: the section. It was also argued that unlawful.
acts by one sovereign State over the sovereignty of another State would be in the natw;'e of politi~al acts (acts of State) and that the municipal courts could have no jurisdiction to give relief concerning them. It was not disputed that in those suits in which the execution of the supplementary agreement of the 15th December, 1949, was not derlied the controversy raised in the plaint would be within the ambit of the section.
In reply to these contentions the following submissions were made on behalf of the plaintiffs in this and in the connected suits : ( 1) That the subject matter of the suit concerned the construction of sections 6 and 101 of the Government of India Act, 1935, and the point to be decided was whether on the correct construction of these sections the Dominion of India was competent to pass the Extra Territorial Jurisdiction Act, XLVII of 1947, so as to affect the plaintiff's rights, and could promulgate the various orders concerning the merger of the plaintiff State; (2) That on the allegations in the plaint, that on a true construction of the provisions of stction 6( 3) of. the Government of India Act, 1935, the alleged or admitted supplementary instrUlllent did not fall within iis purview was a matter within section 204 of: that Act ; (3) That it having been alleged in the plaint tha~ the merger order in pursuance of.
which pbintiff Stare was merged with the Province of Bihar was not within the ambit of section 290-A, brought the suit within the provisions of section 204 inasmuch as it was a question concerning the interpretation of section roA of that Act ; . (4) That on the allegations in the plaint that on a proper construction of: the Indian Independence Act, section 290-A was not a valid piece. of legislation the suit came again within the ambit of the section ; (5) That the defendant not having raised the ple:i of act of: State ·to defend its various ~Ctions taken qua the plaintiff · State, the point could not be raised at this stage, and that in any case when the defendant had pleaded that its acts were done under the agreement of 15th ·December, 1949, it was not open to it to take that plea.
· As already observed, the question of jurisdiction has to be decided purely on the allegations made in the plaint and it seems clear that on those allegations the suit is within the ambit of section 204. It is, however, quite a different matter ·that those allegations may not on further inquiry be substantiated. Questions regarding the interpretation both of the Government of India Act and of the Indian Independence Act have been canvassed in the plaint and it has also been contended that on a true construction of the scope of the Instrument of Accession which subsists none of the acts of the defendant can be justified. ·The merger order, it has been said, is in excess of the provisions of section 290-A of the Government of India Act and this raises the question of the true scope and intent of that section. The issue therefore is decided in favour of (he plaintiff.
Issue 6 : The decision of the question raised by this issue depends on the ·determination of the question whether the plaintiff State has been validly integrated with the Province of Bihar. If section 290-A of the Government of . India Act is not a valid piece of legislation or if the merger order issued under that section is void, 'then it cannot be said that the plaintiff State no longer exists and . has been merged in the . . Province of Bihar. The learned ~ttorney-General made reference to article 1 of. the Constitution, which defines the territories -of India and also referred to the schedule in which .. it has been· noted that the territory of the State of Bihar includes those territories which under the provisions of section 290-A have been integrated with it. This statement in the schedule has to be read subject to the con~ntion raised above.
It cannot be denied that ;m Instrument of Accession was executed by the plaintiff State in favour of the Dominion of 512 SUPREME COURT REPOR'J;'S [1951] India and the plaintiff by this suit alleges that on the true construction of that instrument the plaintiff State retains its integrity. The plaintiff State denies the execution of the supplementary instrument and also denies that its merger is valid under its terms. Without determining the correctness of these allegations it is difficult to hold that mere non-recognition of the State in the Constitution wipes out its existence and that the situation is analogous to the case of death of a party in a suit. It may be pointed out that under the terms of the Instrument of Accession the plaintiff was not bound either to accept the future Constitution of India or to subscribe to its terms and that being so, it would not be correct to find that by the coming into force of the Constitution the plaintiffs suit has abated.
This Court has to decide the case in the situation in which it was instituted in the Federal Court of India and on the merits of the controversy it . has to be determined whether the State has been integrated validly with the territories of the Dominion of India or not; In these circumstances, in my opinion, the plea of abatement raised has no validity. It was argued th~t this Court must accept the Constitution and cannot go behind it. This is unquestionably so, but in this case no question arises of going behind the Constitution, when the court is only exercising jurisdiction conferred on it by article 374 (2) of the Constitution and deciding suits filed by Acce cing . cxCic:isablc by the P. omioion of India.. It follows that . the Governor.. GcQeral could, under this new section, make an. or. der of ! llergcr. with respect to tbC5C seven States only on the strength of the . Articles of Agreements of December 1947.
He could not make any such order by reason of the Instrument of Accession. In exercise of the powers conferred on him by the new section 290-A, the Governor-General, on July 27, 1949, promulgated an Order called the States' Merger (Governors' Provinces) Order, 1949. Section 3 of this Order provided as· follows :- "A. s from the appointed day, the States specified in each of the Schedules shall be administered in all respects as if they formed part of the Province specified in the heading of that Schedule : and accordingly, any reference to an acceding State in the Government of India Act, 1935, or in any Act or Ordinance made on or after the appointed day shall be construed as not including a reference to any of the merged States, and any reference in any such Act or Ordinance as aforesaid to a Province specified in a Schedule to this Order shall be construed as including the territories of all the States specified in chat Schedule.
" Schedule III of the Order showed that the State of Seraikella was one of . the two States merged in the Province of Bihar and Schedule IV showed that the other Orissa States including the plaintiffs in Suits Nos. 2 to 7 of 1950 were merged in the Province of Orissa. Being aggrieved by the enactments, orders and notifications resulting in their merger with Bihar or Orissa the plaintiff States filed the present suits in the Federal Coun of India in its Original Jurisdiction. Suit No. 1 of 1950 was filed on or about January 15, 1950, and the other six suits were fikd on January 23, 1950. The defendants in the suits are two in number. The first defendant in all the suits is the Dominion of India and the second defendant in Suit No. l . is the State of Bihar while the second defendant in all the other stiits is. the State of Orissa. The main written statements in all the suits arc filed on behalf of the first defendant and the second defendant; the State of Bihar or the State of.
Orissa, as the case may be, has adopted the contentions set forth in the written statements of the first defendant. An additional written statement was filed by the first defendant raising another preliminary issue of law ~hich has also been adopted by the second defendant. The Constitution of India having come into force on January 26, 1950, all these suits, by virtue of article 374 (2), . stood removed to this Court which was created by the Constitution. The learned Chamber Judge directed that the issue of law raised in the additional written statement be tried as a preliminary issue. When the suits were called on for hearing on that preliminary· issue, learned Attorney-General handed in a list of 17 issues and it was agreed by counsel on both sides that the following issues only should be determined first as preliminary issues :- . L Whether having regard to the subject-matter of thr suit and the provisions contained in article 363(1) of the Constitution of India.
this Hon'ble Court has jurisdiction to entertain the suit ? 3. Whether the Federal Court had jurisdiction to entertain the suit under section 204 of the Government of India Act, 1935, and particularly in regard to the questions as to the existence and validity of the agreement of merger ? 4. Whether this Court has jurisdiction to entertain the suit ? 5. Whether the suit is maintainable in view of the absence of the requisite notice to the defendants under se. ction 80 of the Civil Procedure Code ? 6. Whether having regard to the provisions of the Constitution the plaintiff has a legal capacity and is entitled to maintain the suit ? · 7. Whether this Court is competent to examine the validity of section 290-A of the Government of India- Act, 1935, enacted by the Constituent assembly ? Re-Issue No. 6. -I take up issue No. 6 which appears to me to be decisive.
Article 1 of the Constitution says that India shall be a Union of States and that the States and territories thereof shall be the States and their territories specified in Parts A, B and C of the First Schedule. The First Schedule to the Constitution in Parts A, B and C sets out the names of the States and indicates what the territories of the States shall be comprised of. The third paragraph in Part A provides as follows :- · "The territory of each of the other States in this Part shall comprise the territories which immediately before the commencement of this Constitution were comprised in the co~rcsponding Province and tl'ic territories which, by virtue of an order made under section 29Q. A of the Government of India Act, 1935, were immediately before such commencement . being administered as if they formed part of that Province.
" The argument is that as the territories of the plaintiff States, by virtue of the States' Merger (Governors' Provinces) Order, 1949, made under section 29Q. A of the Government of India Act, 1935, were immediately before the commencement of the Constitution being administered as if they formed part of the Provinces of Bihar or Orissa, the territories of the States of Bihar and Orissa therefore now comprise the territories of the plaintiff States. The subjects of the plaintiff States have now become the citizens of India, their territories have been . merged in the State of Bihar or Orissa, as the case may be. These States arc no longer recognised as States in Parts A, B or C of the First Schedule to die Constitution. In short, they have ceased . to be States so far as our Constitution is concerned and consequently they have no legal existence . as acceding States which thi:s Court ~hich is bound by the Constitution may recognise.
These States, in the circumstances, cannot come to this Court to enforce their political rights and arc no longer entitled to maintain the suits. Learned counsel for the plaintiffs, howeve~, contend that the order made under section 290-A of the Government of India Act, bejng ultra vires and illegal, the territories of the States were never lawfully administered as part of the Provinces of Bihar or Orissa and, therefore, the territories of the State of Bihar or Orissa cannot be said to comprise the territories of the plaintiff States. It seems to me that the contention of the learned counsel for the plaintiffs is misconceived, for the part of the sentence beginning with the words "which immediately before the commencement" and ending with the words "formed part of that Province" are but description of the territories which the Constitution states are to be comprised in the territories of the States of Bihar or Orissa.
The validity or otherwise of the order made under section 290-A of the Government of India Ac~ has no relevancy. The question is whether the territories of the plaintiff States were in fact being administered as if they formed part of the Provinces of Bihar or Orissa and whether such territories were being so administered by virtue of an order made under section 290-A of the Government of India Act. There can be no doubt that the answer must be in the affifD)ative. This Court is bound by the Constitution and cannot question the validity of any of its provisions. The Constitution says that the territories of Bihar and Orissa shall comprise the territories specified in Part A and this Court must accept that position. None of these States is included amongst the States named in Parts A, B and C. Our Constitution docs not recognise any of these States . as an acceding State. The Government of India Act which recognised them as acceding States has been repealed.
Therefore, the plaintiff States have no existence in the eye of the Constitution and cannot come to this Court to enforce their political rights. It is not necessary to consider whether in international law there may be a State without any territory or . ·. without any subject such as many of the States, which during the last war had been overrun by the invaders and which functioned in foreign countries, claimed to be. The problem before us is quite different. The States which are plaintiffs in suits Nos. 4, 5, 6 and 7 ceased to be acceding States by reason of the Merger agreement of December 1947 admittedly concluded by their respective Rulers. In any event, our Constitution has quite clearly eliminated these States as such by absorbing their territories with the States of Bihar or Orissa. As our Constitution does not recognise these States as acceding States or even as States, this Court cannot recognise these States or their political rights.
These cases may have been within the jurisdiction of the Federal Court _when they were instituted, but since then the Government of India Act has been repealed and the new Constitution has come into force. Under the Constitution, these States do not exist at all. Assuming that these States are still in existence notionally, they have, at any rate, ceased to be States of the kind which could maintain a suit under section 204 of the Government of India Act. After the repeal of the Government of India Act and the commencement of the Constitution none of these States is an acceding State which may continue a suit filed under section 204. The suits must, therefore, be regarded as having abated by reason of the elimination of the plaintiff States as States or acceding States just as an ordinary suit would abate on the death of a plaintiff. In my judgment, these suits can no longer be continued in this Court. In view of my decision on issue No.
6, the other preliminary issues need not be considered. Suits dismissed. Agent for the plaintiffs in Suits Nos. 1, 3 & 4 : R. R. Biswas. Agent for the plaintiffs in Suits Nos. 2 & 5 : P. K. Chatterjee. Agent for the plaintiffs in Suits Nos. 6 & 7 : S. C. Bannerjee. Agent for the defendants : P. A. Mehta.
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