State Of Seraikella vs Union Of India And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Suit No. 1 of 1950

Decision Date: 6 April, 1951

Coram: Hiralal J. Kania, Mehr Chand Mahajan, Vivian Bose

In the matter titled State of Seraikella versus Union of India and another, the suit was recorded as Suit No. 1 of 1950 and the judgment was delivered on 6 April 1951. The case was heard by a bench consisting of Chief Justice Hiralal J. Kania and Justices Mehr Chand Mahajan, Vivian Bose, and the citation of the decision appears in the law reports as 1951 AIR 253 and 1951 SCR 474, with later citations in 1955 SC 540, 1957 SC 540, 1970 SC 1446, and 1971 SC 530. The parties were the State of Seraikella as petitioner and the Union of India together with an additional respondent. The principal issues concerned the application of Article 374 (2) of the Constitution, which provides that all suits, appeals and proceedings pending in the Federal Court at the commencement of the Constitution shall stand transferred to the Supreme Court, and Article 363 (1), which declares that, notwithstanding anything in the Constitution, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any treaty, agreement or similar instrument entered into before the Constitution by any ruler of an Indian State. The judgment also referenced the relevant statutory framework, namely the Extra-Provincial Jurisdiction Act, 1947, and section 290-A of the Government of India Act, 1935, as amended by the Constituent Assembly Act of 1949.

The factual backdrop involved several Indian States that had acceded to the Dominion of India through Instruments of Accession in August 1947. Subsequent orders treated those States as merged with the Province of Bihar, and they were administered as part of that Province under the aforementioned statutory provisions. Prior to 26 January 1950, the States instituted suits in the Federal Court seeking a declaration that the orders effecting their administration as part of Bihar and the statutes authorising those orders were ultra vires and void, contending that the Province of Bihar possessed no authority to govern them. When the Constitution came into force, those suits were transferred to the Supreme Court under Article 374 (2). The Court examined whether the Supreme Court’s jurisdiction over these transferred suits was limited by Article 363 (1), given that the disputes essentially concerned the enforcement of rights under the Instruments of Accession. The judgment ultimately addressed the relationship between the two constitutional provisions and the extent to which the Supreme Court could entertain the suits that originated before the Constitution’s commencement.

In considering the effect of the constitutional provision that begins with the words “notwithstanding anything in this Constitution,” the Court observed that the suits were fundamentally intended to enforce the plaintiffs’ rights under their Instruments of Accession and that the controversy between the parties originated from those very instruments. Consequently, under article 363 (1) the Supreme Court possessed no jurisdiction to entertain the suits, because that article expressly barred the Court from hearing matters relating to the subjects mentioned therein when the causes of action arose after the Constitution became effective on 26 January 1950. The majority opinion held that this conclusion did not require a retrospective application of article 361 (3). In dissent, Justice Mahajan argued that article 363 removed the Supreme Court’s jurisdiction over the specified subjects only for suits instituted after 26 January 1950 or for disputes that arose after that date, whereas article 874 (12) authorised the Supreme Court to try and determine cases that were pending in the Federal Court on the day the Constitution commenced, provided the Federal Court had jurisdiction over them at that time. According to the dissent, there was no inconsistency between the two provisions, and therefore the Supreme Court retained jurisdiction to hear the pending suit. Justice Das, speaking for the Court, noted that the plaintiff States, by virtue of the States Merger (Governor’s Provinces) Order of 1949, were being administered immediately before the Constitution’s commencement as if they formed part of the Provinces of Bihar or Orissa. Under article 1 of the Constitution, read with the third paragraph of Part A of the First Schedule, the territories of Bihar and Orissa included the territories of those plaintiff States. As a result, the States ceased to exist as separate entities for constitutional purposes, lost any legal existence as acceding States, and could not be recognized as such by the Courts, which are bound by the Constitution and cannot question its validity. Accordingly, the Court held that the suits must be treated as having abated.

The judgment proceeded to address the original jurisdiction of suits numbered 1 to 7 of 1950. The factual background of each suit had been set out in detail in the earlier judgment delivered by Chief Justice Kania, with counsel N.C. Chatterjee, assisted by A.N. Roy Choudhury, representing the plaintiffs in suits 1, 3 and 6, and counsel Dr N.C. Sen Gupta, also assisted by A.N. Roy Choudhury, representing the plaintiffs in suits 2, 4, 5 and 7. For the defendants in all the suits, the Attorney-General for India, M.C. Setalvad, appeared with counsel G.N. Joshi. The judgment was dated 6 April 1951, and the opinions of the various judges were recorded. Chief Justice Kania began by noting that the suit had been filed on 15 January 1950 under the original jurisdiction of the Federal Court, which was still operating before the Constitution came into force on 26 January 1950. The plaintiff State, Seraikella, was a State located in Orissa and was ruled by Raja Aditya Pratap Singh Deo. The plaintiff State had acceded to the Dominion of India on 16 August 1947 by means 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. The judgment recounted that the Indian Independence Act 1947 had established the Dominion of India, and that the adapted Government of India Act 1935 provided for the legal framework under which an Indian State could accede to the Dominion through such an instrument.

According to the record, the State could join the Dominion of India by executing an Instrument of Accession. That instrument declared that the Raja had acceded to the Dominion and that the matters listed in the Schedule to the instrument were the subjects on which the Dominion Legislature might legislate for the State. The Schedule identified three principal heads—Defence, External Affairs and Communications—each accompanied by detailed particulars. The instrument expressly stated that by signing it the Ruler would not be deemed to have accepted any future Constitution of India nor to have limited his discretion to enter into arrangements with the Government of India under any such future Constitution. It further provided that nothing in the instrument affected the continuation of the sovereign authority of the State, nor, except as provided by the instrument, the exercise of any powers, authority or rights previously enjoyed by the Ruler, or the validity of any law then in force in the State. The instrument also stipulated that its terms could not be altered by any amendment of the Government of India Act or of the Indian Independence Act, 1947, unless such amendment was accepted by the Ruler or by a supplementary instrument. The plaintiff denied that any such supplementary instrument had been executed by the Ruler and asserted that no amendment of the aforesaid Acts had been accepted by him or by the plaintiff State. In addition, a Standstill Agreement had been executed by the Ruler, under which it was agreed that matters of common concern specified in the Schedule to that agreement would continue between the Dominion of India and the State until new agreements were made in that regard. On 15 December 1947 the plaintiff alleged that an agreement was entered into between the Governor-General of India and the Ruler of the plaintiff State. By that document the Raja purportedly ceded to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State and agreed to transfer the administration of the State to the Dominion Government on 1 January 1948. Article 2 of that agreement contained a provision for the Privy Purse of the Raja, and the plaintiff contended that when the Raja signed the document the figure in that clause had been left blank. Under Article 3, the agreement 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 1 January 1948, the Raja would furnish to the Dominion Government an inventory of all immovable properties, securities and cash held by him as private property. Article 4 addressed the personal privileges enjoyed by the Raja and the members of his family, indicating that those privileges were to continue.

It was recorded that the privileges to which the Raja and the members of his family were entitled under the agreement had to be preserved. On 24 December 1947 the Central Government enacted the Act to provide for the exercise of certain extra-provincial jurisdiction of the Central Government, identified as Act XLVII of 1947. Section 3 of that Act authorised the Central Government to exercise extra-provincial jurisdiction in any manner it deemed appropriate and permitted it to delegate such jurisdiction to any officer or authority in any manner and to any extent it considered fit. Section 4 authorised the Central Government to issue, by means of a notification in the official Gazette, any orders it considered necessary for the effective exercise of its extra-provincial jurisdiction. Pursuant to section 4, the Central Government subsequently issued a notification delegating, under the authority of section 3, the powers contained in the Act to the Province of Orissa. On 18 May 1948 that notification was revoked and the same powers, with respect to the two specified States including the plaintiff State, were transferred to the Province of Bihar. On the same date the Government of Bihar issued “The Seraikella and Kharaswan States Order,” which provided for the administration of the two States.

On 5 January 1949 the Legislative Assembly of India, which at that time also performed the functions of the Constituent Assembly, passed the Constituent Assembly Act I of 1949 and inserted paragraph 290-A into the Government of India Act, 1935. The newly inserted paragraph dealt with the administration of certain acceding States as either a Chief Commissioner’s Province or as part of a Governor’s or Chief Commissioner’s Province. Sub-section (1) stipulated that where the Dominion Government exercised full and exclusive authority, jurisdiction and powers over the Government of any Indian State or a group of such States, the Governor-General could by Order direct either that the State or the group of States be administered in all respects as if it were a Chief Commissioner’s Province, or that it be administered as if it formed part of a Governor’s or Chief Commissioner’s Province specified in the Order. The provision required that, when an Order under clause (b) affected a Governor’s Province, the Governor-General had to first ascertain the views of the Government of that Province regarding both the proposal to make the Order and the specific provisions to be incorporated. Sub-section (2) provided that when an Order was made under clause (a) of sub-section (1), all the provisions of the Act applicable to the Chief Commissioner’s Province of Delhi would apply to the State or group of States concerned.

In this provision, after stating that the Order applies to the specified State, sub-section three allows the Governor-General, when issuing an Order under sub-section one, to issue any supplemental, incidental or consequential directions that he deems necessary, including directions concerning representation in the Legislature. Sub-section four clarifies that any reference to a State also includes reference to any part of a State. On 27 July 1949 the Governor-General of India issued an order titled the States Merger (Governors’ Provinces) Order, 1949. The effect of that order was to declare that the plaintiff State had merged into the Province of Bihar. The plaintiff State alleges that the Government of Orissa had wrongfully and illegally assumed administration of the plaintiff State by relying on a notification dated 23 December 1947 issued under Act XLVII of 1947. The plaintiff asserts that that Act was ultra vires, had no legal effect and was not binding on the plaintiff State. The plaintiff also challenges an alleged agreement dated 15 December 1947, contending that the agreement is void for lack of consideration, that it is inoperative, and that because the monetary figure was left blank, no agreement ever existed. Further, the plaintiff claims that on 18 May 1948 the Province of Bihar, without the consent or approval of the plaintiff State or its ruler, wrongfully and illegally took over the administration of the State and issued the Serai-kella and Kharsawan Administration Order, 1948. In paragraph ten of the plaint the plaintiff argues that the Dominion of India had no authority to exceed the powers granted by the Instrument of Accession, that it could not delegate any powers to the Province of Bihar to administer the plaintiff State, and that the 1948 Order was illegal and inoperative because it exceeded the limits of the Extra-Provincial Jurisdiction Act, 1947. Regarding the Governor-General’s order of 27 July 1949, the plaintiff maintains that the Governor-General lacked the authority to promulgate such an order and that the States Merger Order, purportedly made under section 290-A of the Government of India Act, 1935, is void. The plaintiff also contends that the Constituent Assembly Act I of 1949 is ultra vires and illegal, arguing further that it was enacted without the necessary assent of the Governor-General of India. The plaint alleges that the defendants, namely the Union of India and the State of Bihar, are seeking to deny the very existence of the plaintiff State, to dispute the rights, privileges, powers and prerogatives of its ruler, and to challenge the plaintiff’s claim to private property as outlined in the annexure. Finally, the plaintiff characterises the States Merger Order of 1949 as an abuse of power, a fraud upon the Government of India Act, 1935 and the Indian Independence Act, 1947, and asserts that the Government of India or the Constituent Assembly had

The plaintiff contended that the Dominion possessed no power to enact any legislation concerning matters that were not expressly listed in the Schedule attached to the Instrument of Accession. In paragraph 19 of the plaint the plaintiff further asserted that the controversy between the parties comprised questions on which the existence or the extent of legal rights depended and that the plaintiff State was a party to those questions. The disputes, the plaintiff explained, related to the interpretation of the Government of India Act, 1935 and any order made under that Act; to the interpretation of the Indian Independence Act and any order made under that Act; and to the scope of authority that the Dominion could exercise by virtue of the Instrument of Accession executed by the plaintiff State. The plaintiff then set out several specific prayers. First, the plaintiff sought an interpretation of the relevant provisions of the Government of India Act, 1935, the Indian Independence Act, 1947, and the States Merger Order, 1949. Second, the plaintiff asked 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 that it had no authority to delegate any such power concerning the plaintiff State to the Provincial Government of Bihar. Third, the plaintiff requested a declaration that 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 were ultra vires, illegal and inoperative insofar as they were applied to the plaintiff State, together with a declaration that any orders made or actions taken under those statutes were likewise invalid. Fourth, the plaintiff sought a declaration that the Province of Bihar possessed no authority or jurisdiction to administer the plaintiff State and that the alleged merger was illegal and unauthorised. Fifth, the plaintiff asked for a declaration defining the rights of the parties and the extent of the Dominion’s authority over the plaintiff State. Sixth, the plaintiff requested a declaration that the plaintiff State retained its entity and territorial integrity, that its administration should continue in the name of its Ruler, and that the Ruler’s rights, privileges and private properties, as set out in annexures ‘C’ and ‘D’, remain unaffected. Seventh, the plaintiff sought a declaration that the Province of Bihar had no authority or jurisdiction over the plaintiff State and that it should not interfere in any manner with the State or the sovereignty of its Ruler. In addition to this suit, six other suits were filed by other States of the former Eastern Agency before the Constitution of India came into force on 26 January 1950 on substantially the same basis. In four of those suits the agreement dated 15 December 1947 was admitted to have been executed by the respective Ruler and to be binding on the plaintiff. The material portion of section 6 of the Government of India Act, 1935, which deals with the accession of Indian States, was then set out.

Section 6 of the Government of India Act, 1935, deals with the accession of Indian States to the Dominion. Sub-section (1) states that a State shall be deemed to have acceded when the Governor-General accepts an Instrument of Accession that has been executed by the Ruler of the State. In that Instrument the Ruler, on behalf of the State, declares that the State accedes to the Dominion with the intention that the Governor-General, the Dominion Legislature, the Federal Court and any other Dominion authority created for the purposes of the Dominion shall, by virtue of the Instrument and always subject to its terms, exercise in relation to the State such functions as may be vested in them by order under this Act. The Ruler also undertakes the obligation of ensuring that the provisions of this Act, to the extent they are applicable to the State by virtue of the Instrument of Accession, are given effect within the State.

Sub-section (2) requires that an Instrument of Accession must specify the matters that the Ruler accepts as subjects on which the Dominion Legislature may make laws for the State, and it must also set out any limitations, if any, on the power of the Dominion Legislature to legislate for the State and on the exercise of the Dominion’s executive authority in the State. Under sub-section (3), a Ruler may vary the original Instrument of Accession by executing a supplementary Instrument, which must also be accepted by the Governor-General. Such a supplementary Instrument may extend the functions that any Dominion authority may exercise in relation to the State. Sub-section (5) defines a State that has acceded as an “Acceding State” and states that the Instrument of Accession of that State consists of the original Instrument together with any supplementary Instrument executed under sub-section (3). Consequently, a supplementary Instrument signed by a Ruler and accepted by the Governor-General becomes, by virtue of sub-section (5), a part of the Instrument of Accession of that State.

The supplementary Instruments executed by the four States under discussion are thus treated as part of the Instrument of Accession for the purposes of this case. Written statements have been filed on behalf of the defendants contesting the contentions raised in the plaint. Several of these contentions relate to the jurisdiction of the Court; some are pure questions of law, while others raise factual issues concerning the document dated 15 December 1947. The parties have agreed on the issues that are to be adjudicated, and those issues have been formally filed in Court. Moreover, the parties have agreed that issues numbered 1, 3, 4, 5, 6 and 7 may be tried as preliminary issues, and counsel for both sides has been heard fully on those matters. The first of these preliminary issues is framed as follows: “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.”

In this case the Court examined whether, considering the subject-matter of the suit and the provisions of article 363(1) of the Constitution of India, the Court possessed jurisdiction to entertain the suit. The Court held that it was unnecessary to address the other preliminary jurisdictional questions that had been raised. For the purpose of deciding the present issue, the Court noted that, before the 26th of January 1950, the Federal Court exercised original jurisdiction over matters enumerated in section 204 of the Government of India Act. Under that section the Federal Court could entertain any dispute between a State and the Dominion insofar as the dispute involved a question, whether of law or fact, on which the existence or extent of a legal right depended. However, that jurisdiction did not extend to a dispute to which a State was a party unless the dispute fell within clause (a)(i) of the proviso. The proviso states, in relevant part: “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 …”. The remainder of the section was not material to the present determination. Section 204(2) further stipulated that, while exercising its original jurisdiction, the Federal Court could pass only declaratory judgments and no other form of judgment. Because the suit was filed prior to the 26th of January 1950, it was transferred to the present Court under article 374(2) of the Constitution of India. Article 374(2) provides that all suits, appeals and proceedings, whether civil or criminal, pending in the Federal Court at the commencement of the Constitution shall stand removed to the Supreme Court, and that the Supreme Court shall have jurisdiction to hear and determine the same, with the judgments and orders of the Federal Court made before the commencement of the Constitution having the same force and effect as if they had been delivered by the Supreme Court. The Court then referred to article 131, which delineates the original jurisdiction of the Supreme Court. The material portion of article 131 reads: “Subject to the provisions of this Constitution, the Supreme Court shall … have original jurisdiction in any dispute … (b) between the Government of India and any State or States on one side and one or more other States on the other side … if and insofar as the dispute involves any question, whether of law or fact, on which the existence of …”.

The Constitution contains a limitation on the Supreme Court’s original jurisdiction when the dispute involves a State that is listed in Part B of the First Schedule. That limitation states that the Court’s jurisdiction shall not extend to any dispute in which such a State is a party if the dispute arises from any provision of a treaty, agreement, covenant, engagement, sanad or any similar instrument that was entered into or executed before the Constitution came into force and that instrument has continued to be operative after that commencement. None of the plaintiff States are among those specified in Part B of the First Schedule. Article 363 of the Constitution further clarifies that, notwithstanding any other provision, and subject to article 143, neither the Supreme Court nor any other court shall have jurisdiction over any dispute that arises out of any provision of a treaty, agreement, covenant, engagement, sanad or similar instrument entered into before the Constitution by any ruler of an Indian State, where the Government of the Dominion of India or any of its predecessor governments was a party, and that instrument remains in force after the Constitution’s commencement. Article 363 also provides that the same restriction applies to any right, liability or obligation accruing under any provision of the Constitution that relates to such an instrument. For the purposes of article 363, an “Indian State” means any territory recognized before the Constitution’s commencement by His Majesty or the Government of the Dominion of India as a State, and “Ruler” includes the Prince, Chief or any other person recognized before that date as the ruler of such a State.

The initial issue for the Court’s consideration was the proper interpretation of article 374(2) of the Constitution. It was submitted that the Federal Court possessed jurisdiction to try the suit as it stood before the Constitution became operative. According to article 374(2), that suit was transferred to the Supreme Court, and therefore the question of whether the Supreme Court could try the suit at the present stage must be determined by reference to the Federal Court’s original jurisdiction, because the suit’s trial was effected by the transfer contemplated in article 374(2). Another submission argued that if any limitation on the Supreme Court’s authority to hear such a suit existed—limitations that would apply if the suit were instituted directly under the Supreme Court’s original jurisdiction—those limitations should not be considered in relation to suits that were transferred to the Supreme Court under article 374(2). In other words, it was contended that for suits transferred in this manner the Supreme Court enjoys a broader jurisdiction than the Federal Court, even if the Supreme Court’s jurisdiction is otherwise curtailed by different constitutional articles. The Court examined these positions to determine the correct scope of its authority in the present matter.

In this matter, the Court observed that the argument relying on the term “jurisdiction” as it appeared in article 374(2) was unsound. The Court noted that article 374 belongs to the part of the Constitution dealing with temporary and transitional provisions. Under article 374(1), judges who were serving in the Federal Court at the commencement of the Constitution, unless they chose otherwise, became judges of the Supreme Court. Likewise, article 374(2) – which the Court examined – provided, first, for the transfer of all suits, appeals and other civil or criminal proceedings pending before the Federal Court to the Supreme Court, and, second, for the Supreme Court to have authority to hear and determine those transferred matters. The Court pointed out that this provision covered not only suits but also civil and criminal appeals and other pending proceedings. By merely mandating the removal of these matters to the Supreme Court, a gap would remain unless it was also expressly stated that, after removal, the Supreme Court possessed the power to try them. Consequently, the Constitution expressly declares that the Supreme Court shall have jurisdiction to hear and determine the transferred matters. The Court rejected the view that this language conferred an expanded jurisdiction on the Supreme Court beyond the scope intended by the Constitution.

The Court explained that two stages must be considered in applying article 374(2). First, it must be ascertained whether the suits, appeals or proceedings that were pending before the Federal Court fell within the Federal Court’s jurisdiction at that time. Second, after those matters were transferred, the Court must determine whether the Supreme Court has jurisdiction to hear and determine them, taking into account all relevant constitutional provisions governing the Supreme Court’s jurisdiction. The Court emphasized that the Supreme Court was a newly created court established by the Constitution and had no existence prior to the Constitution’s commencement. Therefore, its jurisdiction had to be defined by examining all pertinent articles of the Constitution, including the provisions of article 363, which must be read and interpreted in that context.

The Court further considered the political background essential for understanding the constitutional scheme. Before August 1947, British India was governed under the Government of India Act, 1935, while the Indian States were independent entities under the suzerainty of the King, with their administration overseen by the Political Department of the Government of India. The Indian Independence Act, 1947, ended the authority of the British Parliament and the King to make laws for India or alter its Constitution from 15 August 1947 onward. Although the Government of India Act continued to provide for the rulers of the Indian States to sign Instruments of Accession, the Independence Act did not grant any suzerain rights to the Dominion of India. Consequently, if the Dominion of India or any of the States engaged in aggression or territorial trespass, there was no applicable law or court able to grant relief. Section 204 of the Government of India Act likewise did not offer relief unless an Instrument of Accession was signed. With the adoption of the Constitution, India became a sovereign independent republic, and the Court concluded that any acts of aggression by the Dominion or Republic towards a neighbouring Indian State would fall outside the Supreme Court’s jurisdiction to provide relief to that State.

In this case the Court observed that after independence the authority to make laws for India or to amend its Constitution was left exclusively to India itself. Regarding the Indian princely States, the Government of India Act continued to provide for the Rulers to sign Instruments of Accession, but the Indian Independence Act did not confer any suzerain rights on the Dominion of India over those States. Consequently, if the Dominion of India or any of the princely States engaged in acts of aggression or territorial trespass, there was no statutory provision that could be enforced to grant relief, nor was there any court empowered to provide such relief. Section 204 of the Government of India Act similarly failed to offer any remedy to a State unless that State had signed an Instrument of Accession. When the Constitution of India came into force, India became a sovereign independent republic. If that Republic were to commit an act of aggression against a neighbouring Indian State, the Supreme Court would not have jurisdiction to grant relief to the aggrieved State. The Court further noted that the jurisdiction granted under article 131 is limited, and even for a State listed in Part B of the First Schedule, any dispute arising out of a treaty, agreement, covenant, engagement, sanad or similar instrument will not be entertained by the Supreme Court if the conditions of the proviso to article 131 apply. With this background, the Court turned to article 363. The opening words of article 363 declare that its provisions override all other constitutional provisions, subject only to article 143, which empowers the President to refer matters to the Supreme Court for advice. By this construction, the opening words of article 363 supersede the operation of article 374(2), making article 363 the controlling provision over article 374(2). The Court reiterated that the jurisdiction of the Supreme Court is delineated in articles 131 through 1A 6, but article 363 provides that, notwithstanding any other constitutional article, neither the Supreme Court nor any other court shall have jurisdiction over any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or similar instrument that was executed before the commencement of the Constitution and that continued in operation after such commencement. Therefore, if a dispute involves a document of that description, executed before the Constitution and still operative thereafter, the Supreme Court lacks jurisdiction to determine the issue. The parties argued that because the agreement must be operative after the Constitution’s commencement, no dispute could arise concerning such a document before the Constitution came into force, and hence, since the present dispute arose before the Constitution’s commencement, article 363 should not apply. The Court indicated that this argument was not correct, because the temporal requirement in article 363 pertains only to the document, not to the timing of the dispute itself.

In this case, the Court observed that the contention that article 363 of the Constitution had no effect before the Constitution came into force was a misreading of that provision. The Court explained that the timing requirement in article 363 relates solely to the document that is the subject of the dispute and not to the dispute itself. The provision stipulates that the treaty, agreement, covenant, engagement, sanad or any similar instrument must have been executed before the Constitution commenced and must have remained in operation after that commencement, but it does not prescribe when a controversy concerning that instrument may arise; the dispute may arise either before or after the Constitution became effective. The parties further argued that article 363 was prospective and not retrospective, contending that it applied only to suits filed in the Supreme Court after the Constitution’s commencement and therefore did not affect suits that had been instituted in the Federal Court before that date. The Court rejected this argument, holding that it rested on a mistaken interpretation of the terms “prospective” and “retrospective.” While it is undisputed that the Constitution operates prospectively, the Court clarified that the real question was, on the day the Supreme Court was called upon to determine the matter, what jurisdiction the Court possessed under the Constitution. This approach, the Court noted, did not render the provision retrospective. The Court also pointed out the similarity of language between articles 368(1) and the proviso to article 131(i), suggesting that the same principle of jurisdiction applied. Consequently, the only remaining issue was whether, based on the pleading, the dispute raised in the suit arose out of a treaty, agreement, covenant, engagement, sanad or any other similar instrument. The Court observed that the specific disagreement concerning the agreement dated 15 December 1947 was immaterial to the present analysis. If the plaintiff repudiated that agreement, he would be seeking to enforce his rights while ignoring the agreement itself. Conversely, where the plaintiff relied on that agreement, it became part of the Instrument of Accession under section 6(5) of the Government of India Act 1935, and any dispute would have to be examined in light of both the original Instrument of Accession and the supplementary instrument. Thus the matter narrowed to an examination of the plaint to determine the relief the plaintiff sought. Apart from the specific prayers labelled (f) and (g) in the plaint, which aimed to enforce rights under the 15 December 1947 agreement, it was clear that the overall purpose of the suit was to enforce the plaintiff’s rights under its Instrument of Accession. The plaintiff asserted that its ruler had signed the Instrument of Accession. The State then alleged that, by acting beyond the powers conferred by the Instrument of Accession, the Dominion of India and the State of Bihar were wrongfully intruding upon its legislative and executive functions, making laws for which they had no authority and interfering with the administration of the State beyond the rights granted to them under the Instrument of Accession.

In the suit the plaintiff asserted that the Dominion of India and the State of Bihar were exercising legislative and executive powers that they did not possess under the Instrument of Accession. According to the plaintiff, the defendants were making laws and interfering with the administration of the plaintiff’s State beyond the authority that the Instrument of Accession expressly granted them. The plaintiff therefore framed the entire relief sought in the plaint as a demand that the rights guaranteed by the Instrument of Accession be enforced. The Court observed that the controversy therefore centred on the interpretation and effect of the Instrument of Accession, an issue that fell within the scope of article 363(1) of the Constitution of India. The Court further noted that the question of whether the various enactments and orders challenged by the plaintiff were valid also depended on the rights that the plaintiff claimed flowed from the Instrument of Accession. The defendants, on the other hand, acknowledged that the Instrument of Accession existed but denied that they were invoking any of the disputed rights under it. Instead, they argued that the Agreement dated 15 December 1947 had been properly executed, was binding on the plaintiff, and formed the basis for all the legislation, orders and administrative actions taken by the defendants. The Court held that if the plaintiff rejected the binding nature of the 15 December agreement, it could not rely on the original jurisdiction of the Court to enforce its rights. Moreover, the Court found that the plaintiff had no enforceable grievance against the defendants under the terms of that agreement, and consequently the Supreme Court was not the appropriate forum to entertain the suit that had been transferred from the Federal Court. According to the defendants, the factual scenario amounted to one sovereign independent State encroaching upon the territories, powers and privileges of another neighbouring independent State, a matter which the Supreme Court was not empowered to remedy. The Court therefore answered the petition in the negative and ordered that costs be awarded against the plaintiff.

The matters before the Court comprised a series of suits filed by several plaintiffs who claimed to be States that had acceded to the Union and who sought declaratory relief concerning alleged wrongful mergers of their territories into the adjacent Provinces of Bihar and Orissa. In each suit the Dominion of India was named as the first defendant, while the second defendant was either the Province of Bihar or the Province of Orissa, depending on the particular dispute. All of the suits had been instituted in the Federal Court of India under section 204 of the Government of India Act, 1935, shortly before the Constitution of India came into force. Apart from minor factual differences, the essential allegation in each case, stripped of legal jargon, was that the merger of the plaintiff’s territory and the subsequent assumption of its administration had been carried out under the purported authority of the States Merger (Governors’ Provinces) Order, 1949. That order had been issued by the Governor-General of India pursuant to section 290-A of the Government of India Act, 1935. The plaintiffs contended that the exercise of power under that order was unlawful and that the resulting integration violated the terms of their respective Instruments of Accession.

The plaintiffs asserted that the actions taken by the Government of India and the concerned provincial governments amounted to a breach of the Instrument of Accession that had been executed by the ruling monarch and accepted by the Governor-General in August 1947. That Instrument, they contended, preserved the sovereign authority of the ruler over his State, and therefore any notification, order or enactment issued in contravention of the rights and obligations derived from that Instrument was ultra vires, void and inoperative. In the plaints filed in Suits Nos. 1, 2 and 8 the plaintiffs referred to an agreement concluded between the Governor-General and the respective ruler in December 1947; they alleged that this agreement was inoperative and void because it had not been finally concluded and, even if it had been, it lacked consideration. In Suits Nos. 4, 5, 6 and 7 the same December 1947 agreement was admitted, but the plaintiffs maintained that notwithstanding that agreement the defendants’ actions—including the issuance of orders, notifications and legislation cited in the plaints—were wrongful, illegal and ultra vires. The principal relief sought in every suit was a declaration that the Dominion of India possessed no authority to assume any power or jurisdiction beyond those specified in the Instrument of Accession and that it had no authority to delegate any such power to the Provincial Government of Bihar or Orissa, as the case might be. The additional reliefs claimed were merely ancillary and consequential. The defence primarily relied on the December 1947 agreement, asserting that under that agreement the plaintiff in each case had “ceded full and exclusive authority, jurisdiction and powers for and in relation to the governance of the plaintiff to the Government of India with effect from 1 January 1948.” It was further argued that from that date, and especially from 26 January 1950, when the Constitution of India came into force and incorporated the plaintiff’s territory into the State of Bihar (or Orissa), the plaintiff ceased to exist as a distinct legal entity and therefore lacked capacity to maintain the suit. The defendants characterised the December 1947 agreement as a political arrangement rather than a civil contract requiring consideration, yet contended that it was a concluded agreement supported by consideration. On the basis of that agreement, they claimed that all the actions, notifications and orders mentioned in the plaints proceeded “on the basis of the supersession of the said Instrument of Accession by the consent of the parties” and were thus legal, valid and operative upon the plaintiff. In a supplementary written statement the defendants further pleaded that the Court lacked jurisdiction to entertain the suit because of the subject-matter of the suit and the provisions of article 363(1) of the Constitution of India. Consequently, on 9 December 1950, by mutual consent, the Judge in Chambers ordered that the suit be dealt with in accordance with the procedural directions agreed between the parties.

The suit was ordered to be heard on the preliminary question of whether, in view of the subject-matter of the suit and the provisions of article 363(1) of the Constitution of India, the Court possessed jurisdiction to entertain it. When the matter was taken up for hearing on 5 March 1951, it was deemed desirable that all matters in controversy should be settled and that every issue concerning the maintainability of the suits, including the jurisdictional issue, should be tried as preliminary issues; consequently the suits were adjourned to 7 March for that purpose. The parties subsequently filed seventeen agreed issues arising out of the pleadings and they further agreed that issues 1, 3, 4, 5, 6 and 7 might be tried first. The agreed issues were as follows: Issue 1 – 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; Issue 3 – whether the Federal Court had jurisdiction to entertain the suit under section 204 of the Government of India Act, 1935, particularly with respect to the questions as to the existence and validity of the agreement of merger; Issue 4 – whether this Court has jurisdiction to entertain the suit; Issue 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; Issue 6 – whether, having regard to the provisions of the Constitution, the plaintiff has a legal capacity and is entitled to maintain the suit; and Issue 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. The opinion expressed that Issue 1 should be found for the defendants and that the suits must fail on that ground; therefore the other issues were not considered, although arguments had been addressed on all of them. The determination of Issue 1 turned on the proper construction of articles 363(1) and 374(2), which read as follows: “363(1) Notwithstanding anything in the 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, 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 or any of its predecessor Governments was a party and which has or has been continued in operation after such commencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement, covenant, engagement, sanad or other similar instrument.”

Article 374(2) provides that all suits, appeals and proceedings, whether civil or criminal, which were pending in the Federal Court at the moment the Constitution came into force, were to be transferred to the Supreme Court; the Supreme Court was thereby given jurisdiction to hear and determine those matters, and the judgments and orders issued by the Federal Court before the commencement of the Constitution were to retain the same force and effect as if they had been delivered by the Supreme Court.

The plaintiffs place the Instrument of Accession at the centre of their case, asserting that the Instrument continues to operate in full force. They argue that the Dominion of India or the Constituent Assembly of India possessed no authority under the Indian Independence Act or any other source to enact section 6 of the Constituent Assembly Act I of 1949, to introduce section 290-A into the Government of India Act 1935, or to legislate for the plaintiff State in any manner other than with reference to the matters specifically listed in the Schedule to the Instrument of Accession, as set out in paragraph 18 of the plaint in Suit No. 1 of 1950. The plaintiffs further contend that the disputes between the parties involve questions on which the existence or extent of a legal right depends, and that such disputes, to which the acceding State is a party, concern, among other things, the scope of authority vested in the Dominion by virtue of the Instrument of Accession. Their prayer (b) seeks a declaration that the Dominion Government has no authority beyond the matters specified in the Instrument of Accession, a request recorded in paragraph 21 and reproduced in all the plaints.

The defence relies principally on the subsequent agreement of December 1947 and asserts that the States Merger (Governors’ Provinces) Order 1949, under which the disputed merger was effected, was made on the basis of the supersession of the Instrument of Accession by the consent of the parties, as set out in paragraph 21 of the first defendant’s written statement and adopted by the second defendant. Although the defendants argue that, on that basis, there is no dispute concerning the Instrument of Accession, the plaintiffs’ repudiation of that basis inevitably raises the question of whether the Instruments of Accession remain in force or have been superseded. This dispute, arising out of the Instrument of Accession in each case, falls within the purview of article 363(1). It was also submitted that the suits involve other questions not covered by article 363(1), such as matters relating to the December 1947 agreement, the validity of the Extra Provincial Jurisdiction Act 1947, section 290-A of the Government of India Act 1935, and the States Merger (Governors’ Provinces) Order 1949.

The judge observed that the controversies concerned the applicability of the Instruments of Accession, the States Merger (Governors’ Provinces) Order of 1949, the Extra Provincial Jurisdiction Act of 1947, section 290-A of the Government of India Act, 1935 and related documents. On one side, the parties attempted to demonstrate that the Instruments of Accession continued to govern their mutual rights and obligations; on the other side, they asserted that those Instruments had been superseded and were no longer in force. While issues had indeed been framed on these points, the judge held that they could not be treated as disputes for the purposes of article 131 or article 363(1). Those constitutional provisions concern the jurisdiction of courts and presume the existence of contested substantive legal rights. The claims advanced in the suits were undeniably rooted in the respective Instruments of Accession, and they were repudiated on the ground that the Instruments had been superseded by the alleged December 1947 agreement. Consequently, the judge concluded that such claims fell squarely within the ambit of article 363(1). Any other alleged disputes were merely incidental or ancillary controversies raised to support or defeat the primary claims, and they could not, in the judge’s view, affect the operation of the bar imposed by that article, just as, for example, issue number five concerning the necessity of notice to the defendants under section 80 of the Civil Procedure Code did not.

The parties contended that article 363(1) had no application in the present case, arguing that it could not operate retrospectively and that it applied only to disputes arising after the commencement of the Constitution. The judge was unable to accept this narrow interpretation. While the article unquestionably preserves the continued effect of treaties, agreements and similar instruments executed before the Constitution’s commencement that give rise to disputes, it does not require that those disputes arise only after the Constitution came into force. The judge found no justification for importing a restriction that the plain grammatical construction of the provision does not support. It was also incorrect to assert that a broader construction would render the article’s operation retrospective; the bar to court interference operates only after the Constitution became effective, regardless of whether the disputes originated before or after that date. The argument that the article should be construed to spare pending suits or proceedings was rejected, because the situation did not involve a pending action before a continuing court. The Federal Court, which had exclusive jurisdiction over the suits, had been abolished, and the newly created Supreme Court of India possessed original jurisdiction limited to disputes concerning legal rights between States recognized under the Constitution. Nonetheless, the judge noted that the States listed in Part B of the First Schedule had enjoyed a semi-sovereign status before the Constitution, and agreements with them were akin to international treaties and covenants.

The Court explained that disputes arising from agreements with the erstwhile Indian States were not to be tried in ordinary courts. That principle was given effect, with respect to the Supreme Court’s original jurisdiction, by the proviso to article 131, which defines that jurisdiction, and, for all courts and all proceedings, by article 363(1). The Court observed that the reason for applying the principle was even stronger for disputes that originated before the Constitution came into force, because those States then enjoyed a greater degree of political freedom. The Court noted that the construction advanced by the plaintiffs with respect to article 131 would lead to the conclusion that the Court, despite the proviso, could entertain such disputes if they arose before the Constitution’s commencement. The Court held that, had Parliament intended to confer such jurisdiction, it would have done so by a positive enactment rather than by implying it from a proviso that was meant to limit the jurisdiction conferred by article 131. Consequently, the Court concluded that the proviso to article 131 must be interpreted to apply to the kind of disputes mentioned, whether they arose before or after the Constitution began to operate. In that view, article 363(1) must be given the same interpretation, since its language is essentially identical. The Court then considered the next argument, namely that article 368, which establishes a general rule of non-interference by courts in certain categories of disputes, could not control the operation of article 874(2). Article 874(2) is a special provision stating that suits, appeals and proceedings that were pending in the Federal Court at the moment the Constitution commenced were to be transferred to the Supreme Court, and that the Supreme Court would have jurisdiction to hear and determine them. The Court acknowledged that this argument carried considerable force, but it was outweighed by the opening words of article 363(1), “notwithstanding anything in this Constitution.” Those words, the Court said, make clear that the bar to exercising jurisdiction created by article 363 controls the operation of article 874(2) and defeats the plaintiffs’ rule of construction. Accordingly, the Court found issue No 1 in favour of the defendants. The judgment then recorded that on 16 January 1950, ten days before the Constitution was inaugurated, the State of Seraikella—an Orissa State attached to the Eastern States Agency—filed a suit in the Federal Court of India against the Dominion of India and the Province of Bihar. The reliefs sought were: (a) an interpretation of the relevant provisions of the Government of India Act 1935, the Indian Independence Act 1947, and the States Merger (Governors’ Provinces) Order 1949; (b) a declaration that the Dominion Government had no authority to assume any power or jurisdiction beyond that specified in the Instrument of Accession and that it possessed no authority to delegate any power in relation to the plaintiff State to the Provincial Government of Bihar or Orissa; and (c) a declaration that the Extra-Provincial Jurisdiction Act, XLVII of

In the present suit, the plaintiff State sought a series of declarations. First, it claimed that the 1947 Extra Provincial Jurisdiction Act, the Constituent Assembly Act of 1949, section 290-A of the Government of India Act 1935, and the States Merger (Governors’ Provinces) Order 1949 were ultra vires, illegal and inoperative to the extent that they were applied to the plaintiff State, and that any orders made or actions taken under those instruments were likewise illegal and inoperative. Second, it asserted that the Province of Bihar possessed no authority or jurisdiction to administer the plaintiff State and that the purported merger of the State into Bihar was illegal, unauthorised and not binding on the State or its ruler. Third, it sought a declaration regarding the respective rights of the parties and the scope of the Dominion of India’s authority over the plaintiff States. Fourth, it requested a declaration that the plaintiff State retained its existence and territorial integrity, that administration should continue in the name of its ruler, and that the ruler’s rights, privileges (as set out in annexure “C”) and private property (as set out in annexure “D”) remain unaffected. Fifth, it asked that the Province of Bihar be recognised as having no authority or jurisdiction over the plaintiff State and that it should refrain from any interference with the State or the sovereignty of its ruler.

All of the foregoing reliefs essentially converged on the central relief that the State of Seraikella should be declared to retain its entity and territorial integrity and not to have integrated itself with the territories of the Indian Dominion. The suit was pending before the Federal Court on 26 January 1950, and under article 374(2) of the Constitution the matter was required to be heard and determined by this Court.

The plaintiff advanced its claims on several factual allegations. First, it alleged that on 16 August 1947 the State had acceded to the Dominion of India by an Instrument of Accession executed by its ruler and accepted by the Governor-General of India, and that the instrument could be altered only by a supplementary instrument accepted by the ruler; no such supplementary instrument had ever been executed or accepted. Second, it contended that from 31 August 1947 the Government of Orissa had wrongfully and illegally purported to administer the State based on an alleged delegation of authority by the Dominion Government through a notification dated 23 December 1947 issued under the Extra Provincial Jurisdiction Act XLVII of 1947; the plaintiff claimed that the Act was ultra vires, had no effect, and was not authorised by the Instrument of Accession. Third, the plaintiff asserted that the defendant relied on an alleged agreement dated 15 December 1947 to justify its actions, but that such agreement was void, inoperative and never became a concluded contract between the parties.

The plaintiff contends that the alleged agreement dated 15 December 1947, which the defendants rely upon to justify their actions, is void and never became a binding contract between the parties. The plaintiff further asserts that on 18 May 1948 the Province of Bihar unlawfully assumed administration of the State by issuing an order under Act XLVII of 1947, and that the Dominion of India possessed no authority beyond the Instrument of Accession to delegate such power to Bihar. Additionally, the plaintiff claims that on 26 July 1949 the Governor-General improperly issued the States Merger Order of 1949, which merged the State into Bihar. The plaintiff argues that this order was made under section 290-A of the Government of India Act, a provision that had been introduced by section 6 of the Constituent Assembly Act I of 1949, which itself was ultra vires and illegal. Accordingly, the Dominion of India lacked authority to bring the State within the ambit of section 290-A, and the Constituent Assembly Act I of 1949 was inoperative because it had been enacted without the Governor-General’s consent. The plaintiff maintains that the Merger Order adversely affects the State’s existence, identity and status and exceeds the scope of section 290-A. In essence, the complaint, stripped of its formal language, denies the validity of the 15 December 1947 agreement that purportedly integrated the State with Indian territory and rendered Act XLVII of 1947 applicable, as well as the notifications issued on that basis. The plaintiff further alleges that, because the agreement is denied, the Dominion Government’s actions of first merging the State with the Province of Orissa and later with Bihar were unlawful. In the absence of any supplementary agreement contemplated by section 6, sub-section (3) of the Government of India Act 1935, the Dominion of India had no power to subject the State to the statutes cited. Consequently, the plaintiff argues that the Dominion’s measures deprived the State of its legal entity, exceeded the terms of the Instrument of Accession, and amounted to an unlawful usurpation of the State’s retained sovereignty. Accordingly, the plaintiff seeks a declaration that the State continues to exist with its territorial integrity, and that the various orders and statutes under which it was merged are void.

In this case, the plaintiff contended that the orders which merged its territory with the State of Bihar were void, ultra vires, and amounted to an encroachment on its sovereignty. The plaintiff therefore sought to enforce the terms of the Instrument of Accession by either denying the existence of the agreement dated 15 December 1947 or by pleading that such agreement was invalid. Accordingly, the suit originally drawn against the Dominion of India and the Province of Bihar was directed, in view of article 300 of the Constitution, to be proceeded against the Government of the Union of India and the State of Bihar. Both defendants opposed the suit on the same grounds. The parties identified a series of agreed questions that framed the dispute arising from the pleadings. These questions were: whether, in view of the subject matter of the suit and article 363(1) of the Constitution, the Court possessed jurisdiction to entertain the suit; whether the plaintiff had ceased to be an acceding State and a distinct legal entity at the date the suit was instituted; whether the Federal Court had jurisdiction under section 204 of the Government of India Act, 1935, particularly with respect to the existence and validity of the merger agreement; whether this Court had jurisdiction to entertain the suit; whether the suit was maintainable given the absence of the statutory notice required by section 80 of the Civil Procedure Code; whether, under the Constitution, the plaintiff had legal capacity and a right to maintain the suit; whether the Court was competent to examine the validity of section 290-A of the Government of India Act, 1935, as enacted by the Constituent Assembly; whether the States Merger (Governors' Provinces) Order dated 27 July 1948, issued by the Governor-General under section 290-A of the Government of India Act, 1935, was valid and within competence; whether the Extra Provincial Jurisdiction Act, 1947, was ultra vires and invalid; whether the delegation of authority by the Government of India to the Government of Orissa was ultra vires and illegal; whether the Constituent Assembly was competent to enact the Constituent Assembly Act I of 1949 under the provisions of the Indian Independence Act; whether the Seraikella and Kharsawan States (Amendment) Act Order, 1948, was ultra vires and exceeded the scope of the Extra Provincial Jurisdiction Act, 1947; whether the plaint disclosed any cause of action; whether the agreement dated 15 December 1947 was a concluded agreement between the parties; whether that agreement was void and inoperative for lack of consideration; and whether the agreement dated 15 December 1947 was a political agreement rather than a civil contract. The parties, with mutual consent, agreed to hear arguments on issues numbered 1, 3, 5, 6 and 7 because those issues could be decided without the need for evidence.

The matter before the Court involved a question whether the agreement in dispute was a political agreement rather than a civil contract, listed as issue number seventeen. The Court also examined whether, on 18 May 1948, the administration of the plaintiff State had been transferred to the Government of Bihar by Notification No 217-P issued in consultation with the ruler of that State. The parties agreed that arguments would be heard on issues one, three, five, six and seven, because those questions could be resolved without the need to call any evidence. Regarding issue one, the learned Attorney-General contended that this Court possessed no jurisdiction to determine any dispute arising out of a treaty, agreement, covenant, engagement, sanad or any similar instrument that had been entered into or executed before the commencement of the Constitution by a ruler of an Indian State and to which the Government of the Dominion of India had been a party, and which continued to operate after that commencement. He further submitted that the present suit fell within that category and that, although the suit had been transferred to the records of this Court from the Federal Court, the Court must decline to hear it. To support his position, the Attorney-General quoted Article 363 of the Constitution, which provides: “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 Government of the Dominion of India or any of its predecessor Governments was a party and which has or has been continued in operation after such commencement …”. He emphasized that the subjects covered by Article 363 were expressly removed from the Court’s jurisdiction and that the Court lacked the power to adjudicate them, regardless of any other constitutional provision that might appear to grant such authority. The counsel representing the plaintiff opposed this contention and argued that Article 363 did not have retrospective effect and therefore could not govern suits that were already pending in the Federal Court at the time of the Constitution’s commencement. He pointed out that, under Article 374 (2), such pending suits were transferred to the Supreme Court and that the jurisdiction conferred by that article continued to apply to them. According to his submission, Article 363 could apply only to suits or disputes that were filed or arose after 26 January 1950, and it could not affect cases that had been instituted before that date. He further observed that the plaintiff’s suit did not arise from any treaty or agreement because the suit expressly denied the existence of any such treaty or agreement. Moreover, he argued that the matter before the Court did not involve any of the subjects enumerated within the scope of Article 363. To appreciate the competing positions, the Court noted that reference must be made to the language of Article 374 (2), which provides that all suits, appeals and proceedings pending in the Federal Court at the commencement of the Constitution stand transferred to the Supreme Court and that the Supreme Court shall have jurisdiction to hear and determine the same.

Article 374 (2) of the Constitution provides that every suit, appeal or proceeding—whether civil or criminal—that was pending in the Federal Court at the moment the Constitution came into force shall be transferred to the Supreme Court, and that the Supreme Court shall have the authority to hear and determine such matters. The issue that required resolution concerned the actual extent of the provisions contained in Articles 363 and 374 (2) of the Constitution. Although it is possible to construct complex puzzles from the language of these two articles, a straightforward and uncomplicated interpretation becomes apparent when the provisions are examined without any predisposition to controversy. Article 363 removes the Supreme Court’s jurisdiction over certain matters when suits concerning those matters are instituted after 26 January 1950, or when disputes concerning those matters arise after that date. In contrast, Article 374 (2) authorises the Supreme Court to entertain and decide suits that were already pending in the Federal Court of India on 26 January 1950, provided that the Federal Court then possessed the competence to try and determine those suits. In the Court’s view there is no inconsistency between the two articles, because each operates in a distinct sphere. The Federal Court of India derived its jurisdiction from section 204 of the Government of India Act 1935, which empowered it to adjudicate specific suits between the acceding States and the Government of India relating to certain subject-matters; that jurisdiction was preserved for the time being and was transferred to the Supreme Court. While Article 131 confers original jurisdiction on the Supreme Court for similar suits, that article does not encompass every subject matter that fell within the ambit of section 204 of the 1935 Act. The Court also relied on the decision in Keshavan Madhava Menon v. State of Bombay, where it was held that the Constitution of India does not operate retrospectively; this principle was not contested by the Attorney-General. Consequently, Article 363 must be given a prospective effect and therefore cannot impact suits that were pending before 26 January 1950. The Attorney-General argued, however, that despite its lack of retrospective operation, the wording of Article 363 nonetheless influences the Supreme Court’s jurisdiction over suits transferred from the Federal Court if those suits relate to the subjects mentioned in the article, placing particular emphasis on the opening words of the provision. The Court found this argument untenable, holding that the introductory words do not render the article retrospective. Once it is established that the entire provision operates prospectively on suits filed after 26 January 1950 or on disputes arising after that date, the opening words cannot affect cases that have been transferred to the Supreme Court under Article 374 (2). Moreover, a well-known principle of statutory interpretation dictates that, unless a statute is purely procedural, it should not be construed to have retrospective effect unless it expressly states so or such effect is necessarily implied or intended.

Statutes are not to be read as having retrospective operation unless the legislation expressly declares a retrospective effect or such effect is necessarily implied by the provision’s purpose. The general rule of construction therefore disfavors giving statutes a retroactive character. This principle was illustrated by the decision of the Court of Exchequer in Moon v. Burden (2). In that case the Barons of the Exchequer examined whether section 18 of the Gaming Act, 8 and 9 Vict., Chapter 109, operated retrospectively. The text of the section read: “And be it enacted, that all contracts or agreements, whether by oral or in writing by way of gaming or wagering, shall be null and void; and that no suit shall be 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 the hands of any person to decide the event on which any wager shall have been made.” Although the provision categorically prohibited the initiation or maintenance of suits for recovery of such sums, the Court of Exchequer concluded that the enactment did not apply to suits that had already been instituted, even though those suits had not yet been decided, at the time the Act came into force. Baron Parke observed that the phrase “all contracts or agreements … shall be null and void” ought, when read alone, to be understood as applying solely to future contracts and agreements. Similarly, the subsequent clause, if read in isolation, would be construed as referring to future actions only, meaning that it did not intend to extinguish actions already pending but rather to prevent any new action from being brought or continued after the statute’s commencement.

The same approach was adopted in the English Court of Appeal in Beadling v. Coil (1), where the Court held that the Gaming Act 1922, which provided that no action under section 2 of the Gaming Act 1855 to recover money paid on gaming debts “shall be entertained in any court,” did not affect actions that had been commenced before the 1922 Act became operative. In Henshall v. Porter (2), McCardie J. went further, holding that the 1922 Act, which barred all courts from entertaining such suits, did not apply to cases where the cause of action arose before the Act was passed, even though no suit had been filed until after the Act’s enactment. The rule articulated in these decisions was expressly endorsed by the Federal Court of India in The United Provinces v. Mst. Atiqa Begum (3), and the learned Attorney-General openly acknowledged that this rule of construction was not contested. Accordingly, the prevailing construction rule is that a statutory provision is to be given prospective effect unless a clear and explicit intention to the contrary is evident in the language of the statute.

The Court observed that the authorities cited in [1940] F.C.R. 110 and in [1923] 2 K.B. 193 have direct relevance to the interpretation of article 363 of the Constitution. It was noted that article 363 does not apply retrospectively; its operation is limited to disputes that arise after 26 January 1950. Referring to Willis’s treatise on Constitutional Law, the Court explained that the same principles guide the construction of constitutional provisions as those that guide statutory interpretation, but that the dominant approach in constitutional construction is to read each part in the context of the other parts, because the Constitution is a logical whole in which every provision is an integral component.

In the majority judgment of the Court in Keshavan Madhava Menon v. The State of Bombay, the Court had held that the concept of preserving existing inchoate rights, liabilities, and pending proceedings is neither alien nor contrary to the Constitution of India, and that this concept can be given effect if article 363(1) is interpreted in the manner suggested. The Court warned that any alternative reading of article 363 would render the provisions of article 374(2) partially ineffective, for it would mean that suits pending in the Federal Court under section 204 of the Government of India Act, even after being transferred to this Court by direction and ordered to be decided here, could not be heard. Such an undesirable result is avoided if article 363 is construed as outlined.

Addressing the argument raised by the plaintiff’s counsel that the suit does not arise out of any agreement because it questions the very existence of the agreement, the Court found this contention unsound. The dispute clearly stems from the provisions of the Instrument of Accession. The plaintiff’s subsequent argument that the suit, by challenging the validity of certain statutes through an interpretation of the Government of India Act and the Independence Act, falls outside the scope of article 363 was also examined. The Court stated that the question of jurisdiction must be decided on the basis of the allegations set out in the plaint; it cannot be settled by reference to the written statement or by assessing the validity of the grounds pleaded in the plaint.

While the majority of the Court held otherwise on this point, the dissenting judge, citing the reasons given above, respectfully differed from the majority view and held that the first issue should be decided in favour of the plaintiff. Regarding the third issue, the Court reproduced the text of section 204 of the Government of India Act, which provides: “(1) Subject to the provisions of this Act, the Federal Court shall, to the exclusion of any other court, have original jurisdiction in any dispute between any two or more of the following 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 provision limited the jurisdiction so that it would not extend to a dispute in which a State was a party unless the dispute concerned, first, the interpretation of the Government of India Act or of an Order in Council made under that Act before the Dominion was established, or an order made under the Act after that date; second, the interpretation of the Indian Independence Act of 1947 or of any order made under that Act; or third, the extent of the legislative or executive authority that the Dominion possessed by virtue of the Instrument of Accession of that State. According to this clause, the Federal Court was given exclusive jurisdiction to hear disputes between the Dominion, any Province, or any Acceding State, provided that in cases involving Acceding States the conditions specified in clause (a) were satisfied. The learned Attorney-General argued that the essential relief sought in the plaint was to assert the continued existence of the Instrument of Accession and, in substance, to enforce its terms on the basis that they had been breached. He further contended that the Instrument of Accession had been superseded by the agreement dated 15 December 1949 and therefore no longer existed; consequently, the subject matter of the dispute fell outside the reach of the statutory provision. It was also submitted that unlawful acts committed by one sovereign State against the sovereignty of another State constituted political acts, commonly described as acts of State, and that municipal courts possessed no jurisdiction to grant relief in respect of such acts. The parties did not dispute that where the execution of the supplementary agreement of 15 December 1949 was not denied, the controversy raised in the plaint would fall within the ambit of the statutory provision. In response to these contentions, the plaintiffs put forward several submissions in this suit and in the related suits. First, they asserted that the suit concerned the construction of sections 6 and 101 of the Government of India Act, 1935, and that the issue to be decided was whether, on a correct construction of those sections, the Dominion of India had the competence to enact the Extra-Territorial Jurisdiction Act, XLVII of 1947, thereby affecting the plaintiffs’ rights and to issue the various orders relating to the merger of the plaintiff State. Second, they claimed that the allegations in the plaint—specifically that a proper construction of the provisions of section 6(a) of the Government of India Act, 1935, showed that the alleged or admitted supplementary instrument did not fall within its scope—were matters within the jurisdiction of section 204 of that Act. Third, they contended that the plaint alleged that the merger order by which the plaintiff State was merged with the Province of Bihar was not covered by section 290-A, and that this allegation brought the suit within the provisions of section 204, insofar as it concerned the interpretation of section 290-A.

It was alleged in the plaint that the question involved the interpretation of section 290-A of the Government of India Act. The plaint further asserted that, if the Indian Independence Act were properly construed, section 290-A would not be a valid piece of legislation, and consequently the suit would again fall within the jurisdiction conferred by section 204 of that Act. The plaintiff also pointed out that the defendant had not raised the defence of an act of State to justify the various actions it had taken concerning the plaintiff State. Because the defendant had previously pleaded that its acts were undertaken under the agreement dated 15 December 1949, the plaintiff argued that the defendant could not now rely on the act of State defence. The Court reiterated that jurisdiction must be decided solely on the basis of the allegations contained in the plaint. On the face of those allegations, the suit clearly fell within the ambit of section 204. The Court, however, noted that the correctness of the allegations might not be sustained upon a more detailed examination of the evidence.

The plaint also raised questions about the interpretation of both the Government of India Act and the Indian Independence Act. It was contended that, when the Instrument of Accession is truly construed, none of the defendant’s actions can be justified. The plaintiff maintained that the merger order issued under section 290-A exceeded the powers granted by that provision, thereby raising the issue of the true scope and intent of section 290-A. Accordingly, the issue was decided in favour of the plaintiff. The next question, identified as Issue 6, depended on whether the plaintiff State had been validly integrated with the Province of Bihar. If section 290-A were not a valid legislative enactment, or if the merger order made under it were void, it could not be said that the plaintiff State had ceased to exist or had been merged into Bihar. The learned Attorney-General referred to article 1 of the Constitution, which defines the territories of India, and to a schedule that states that the territory of Bihar includes those areas that, under section 290-A, have been integrated with it. That schedule entry was required to be read subject to the plaintiff’s earlier contention. It could not be denied that the plaintiff State had executed an Instrument of Accession in favour of the Dominion of India. By filing the suit, the plaintiff claimed that a true construction of that instrument preserved the State’s integrity. The plaintiff denied that any supplementary instrument had been executed and also denied that its merger was valid under the terms of any such instrument. Without determining the correctness of these allegations, it was difficult to hold that mere non-recognition of

The Court observed that the mere inclusion of a State in the Constitution does not extinguish its legal existence, and that such a situation cannot be equated with the death of a party in a suit. It was further noted that, under the Instrument of Accession, the plaintiff State was not obligated to accept the future Constitution of India nor to subscribe to its terms; consequently, it would be erroneous to conclude that the commencement of the Constitution automatically caused the plaintiff’s suit to abate. The Court emphasized that it was required to decide the matter in the context in which the suit had originally been instituted before the Federal Court of India, and that the substantive issue for determination was whether the State had been validly integrated with the territories of the Dominion of India. In light of these considerations, the Court held that the plea of abatement raised by the plaintiff possessed no legal merit. It rejected the argument that the Court was bound to accept the Constitution and could not look beyond it, stating that while the Court must indeed recognize the Constitution, no question of going behind it arose in this case because the Court was merely exercising the jurisdiction conferred upon it by article 374 (2) of the Constitution and was dealing with suits filed by acceding States before the Constitution came into force. Turning to the second question identified as Issue 5, the Court found that the plea invoking section 80 of the Code of Civil Procedure was likewise untenable. The Court explained that the Code of Civil Procedure had not been extended to the Federal Court of India by way of section 117, as it had been to the High Courts. Section 204 of the Government of India Act had granted the Federal Court exclusive original jurisdiction over suits between States, a jurisdiction that lay outside the scope of the Code. Moreover, section 214 of the Government of India Act authorized the Federal Court to formulate its own procedural rules. Section 4 of the Code expressly provided that it would not affect any special jurisdiction or special procedural forms. Accordingly, Rule 5 of the Federal Court Rules, framed under section 214, unambiguously stipulated that no provision of the Code of Civil Procedure would apply to Federal Court proceedings unless such provision had been expressly incorporated into those Rules. Since section 80 had not been incorporated, its requirements could not govern suits instituted under section 204 of the 1935 Government of India Act. The Attorney-General contended that the condition precedent set out in section 80 was not a procedural matter within the ambit of section 214 and that the Federal Court could not, by its own rules, eliminate that condition before a suit against the Government could be instituted. The Court rejected this contention as unsound, noting that section 214 expressly permitted the Federal Court to make rules governing its practice and procedure.

The Court observed that the Federal Court possessed authority, subject to the Governor-General’s approval, to periodically frame rules governing the general practice and procedure of the Court. In this context, the term “practice” was explained in its broad sense, akin to procedure, as the manner by which a legal right is enforced, distinct from the substantive law that creates and defines that right. “Procedure,” as defined in Wharton, was described as the sequence of steps taken during litigation. The Court then examined the effect of section 80, characterising it as the initial step in a dispute between parties once a cause of action had become complete. Section 80, the Court noted, required that an advance copy of the plaint be served on the defendant and prohibited the institution of a suit until two months had elapsed after such service. The provision did not create or define any substantive rights for the parties; rather, it prescribed a procedural mode for obtaining relief concerning the cause of action. Accordingly, section 80 was regarded as part of the procedural machinery for securing legal rights, distinct from the rights themselves, as illustrated in Boyser v. Minors, 50 L.J. Ex. 555. The learned Attorney-General referred to the Privy Council’s decision in Bhagchand Dagadusa v. Secretary of State for India, where at page 357 the Council examined the approach adopted by several Indian High Courts regarding the applicability of section 80 to injunction suits. The Privy Council held that those courts had erred in assuming that a statutory procedural provision could be set aside in cases of hardship or where strict application would cause irreparable harm. It emphasized that the Procedure Code must be read in accordance with the ordinary meaning of its words and that the explicit and mandatory language of section 80 admitted no implied exceptions. The Council then observed, “To argue as the appellants did, that the plaintiffs had a right urgently calling for a remedy, while section 80 is mere procedure, is fallacious, for section 80 imposes a statutory and unqualified obligation upon the Court.” Relying on this observation, the Attorney-General contended that section 80 did not constitute a procedural rule but instead affected substantive rights. The Court rejected this contention, noting that the Privy Council had not decided, nor could it be inferred that it would decide, that section 80 defined substantive rights; the Council merely described the provision as mandatory and not merely procedural. Finally, the Court expressed the view that suits between States concerning political or public rights, which lie wholly outside the scope of the Code of Civil Procedure, should not be subject to a rule intended for private persons seeking to enforce private rights against the Government, and that the only conditions precedent for maintaining such suits were those prescribed in section 204, with their hearing governed by the Federal Court’s own procedural rules under section 214 of the Government of India Act. Further, it seemed to the Court that suits between States and States in respect of their political or public rights and which were wholly outside the ambit of

The Court observed that the Code of Civil Procedure could not be applied to suits concerning political or public rights of the States, because the procedural rule in question was intended for private persons enforcing private rights against the Government. While Parliament conferred original jurisdiction on the Federal Court of India over such political rights, it could not have intended that the enforcement of those rights be obstructed by the provisions of section 80 of the Code of Civil Procedure. Accordingly, the only conditions precedent to the maintainability of a suit are those set out in section 204, and the hearing of these suits must follow the procedural rules prescribed by the Federal Court of India under section 214 of the Government of India Act. The Court then turned to Issue 7, noting that the learned counsel for the plaintiff had not argued this issue in depth. The validity of section 290-A of the Government of India Act was challenged on the ground that the Governor-General’s assent had not been obtained for its addition to the Act. The Court explained that the section had been inserted by the Constituent Assembly exercising its sovereign authority, and that it had been assented to by the President of the Assembly. The Government of India Act, 1935, was the Constitution Act of the Dominion of India, and the Independence Act had authorised the Constituent Assembly, through sections 6 and 8, to amend or alter that Act until a permanent Constitution was framed. In the Court’s view, the plaintiff’s contention that section 290-A was not a valid piece of legislation because it lacked the Governor-General’s assent was without merit. Moreover, the Court held that it possessed no jurisdiction to examine legislation enacted by a sovereign body. Consequently, the suits could not be disposed of on these preliminary issues and must proceed to trial on the remaining matters. The order issued in this case was directed to apply equally to all other connected suits.

Justice DAS indicated a preference to base the decision on Issue 6 and expressly declined to opine on the other preliminary issues raised before the Court. The seven suits before the Court had been instituted under the following circumstances: on various dates each of the plaintiff States had acceded to the Dominion of India by executing Instruments of Accession, which were signed by their respective Rulers and accepted by the Governor-General of India. Following accession, each State entered into a stand-still agreement with the Dominion, preserving existing arrangements pending further settlement. Subsequently, each plaintiff State executed a separate Article of Agreement with the Governor-General of India, thereby defining the terms of its relationship with the Dominion. The Instruments of Accession and the stand-still agreements entered into by the State of Seraikella, the plaintiff in Suit No 1 of 1950, together with those of the other States, formed the factual backdrop for the litigation.

According to the record, the Instrument of Accession executed by the State of Dhenkanal, which was the plaintiff in Suit No 2 of 1950, and by the State of Baudh, the plaintiff in Suit No 3 of 1950, were signed on or about 16 August 1947. The Instrument of Accession executed by the State of Tigiria, plaintiff in Suit No 4 of 1950, and by the State of Athgarh, plaintiff in Suit No 5 of 1950, were signed on 15 August 1947. The Instrument of Accession executed by the State of Baramba, plaintiff in Suit No 6 of 1950, was signed on 18 July 1947, while the Instrument of Accession executed by the State of Narsinghpur, plaintiff in Suit No 7 of 1950, was signed on 11 November 1947.

Subsequently, Articles of Agreement were executed by the seven States. The States of Seraikella, Dhenkanal and Baudh signed their Articles of Agreement on 15 December 1947. The remaining four States – Tigiria, Athgarh, Baramba and Narsinghpur – signed their Articles of Agreement on 14 December 1947. These Articles of Agreement were entered into after the Instruments of Accession and were intended to supplement the earlier arrangements.

All the Instruments of Accession bore identical terms. By each Instrument, the respective Ruler of the plaintiff State formally acceded to the Dominion of India, intending that the Governor-General of India, the Dominion Legislature, the Federal Court and any other administrative authority, subject only to the conditions specified in the Instrument, would exercise for the Dominion the functions that could be vested in them under the Government of India Act, 1935, as it stood on 15 August 1947. Article 3 of each Instrument specified that the matters listed in the Schedule – broadly Defence, External Affairs and Communications – were the subjects on which the Dominion Legislature might legislate for the particular State. Article 5 stipulated that the terms of the Instrument could not be altered by any amendment of the Government of India Act or of the Indian Independence Act, 1947, unless the Ruler expressly accepted such amendment in a supplementary Instrument. Article 7 made clear that nothing in the Instrument bound the Ruler to accept any future Constitution of India nor constrained his discretion to enter into arrangements with the Government of India under any such future Constitution. Article 8 preserved the Ruler’s sovereignty over his State and retained, except as provided by the Instrument, all powers, authority and rights then enjoyed by him as the State’s Ruler.

The standstill agreements, which were also drafted in similar terms for each State, provided that all agreements and administrative arrangements relating to matters of common concern that then existed between the Crown and any Indian State would continue to exist between the Dominion of India and the respective State. Article 1 of each standstill agreement required the Ruler to cede to the Dominion Government full and exclusive authority, jurisdiction and powers for the governance of the State, and the Ruler agreed that the transfer of administration of the State to the Dominion Government would take effect on 1 January 1948. From that date, the Dominion Government became competent to exercise the ceded powers, authority and jurisdiction in such manner and through such agencies as it deemed appropriate.

According to Article 1 of the Agreements, the entire administration of each State was transferred to the Dominion Government on the first day of January 1948, and from that date the Dominion Government became competent to exercise the powers, authority and jurisdiction that had been ceded, using any manner or agency it deemed appropriate. Article 2 guaranteed that each Ruler would receive a privy purse, although the exact amount of the privy purse for the Rulers of Seraikella, Dhenkanal and Baudh had not been settled at the time the Articles of Agreement were signed; consequently the space provided for inserting the amount in the Agreements was left blank. Article 3 preserved the Ruler’s full ownership, use and enjoyment of all private property distinct from State property. Article 4 protected all personal privileges that the Rulers enjoyed, whether these privileges were exercised within the territories of the States or outside them, as they existed immediately before fifteen August 1947. Article 5 assured that succession to the Gaddi of the State, together with the Ruler’s personal rights, privileges, dignities and titles, would continue according to law and custom. On twenty-four December 1947 the Extra-Provincial Jurisdiction Act, 1947 (Act XLVII of 1947) obtained the assent of the Governor-General and came into force, thereby establishing the legal framework for the Central Government’s exercise of extra-provincial jurisdiction over a State only when it had, by treaty, agreement or similar instrument, acquired full and exclusive authority, jurisdiction and powers for the governance of that State.

The seven acceding States could therefore be placed under extra-provincial jurisdiction by the Central Government solely on the basis of the Articles of Agreement signed in December 1947, and not by virtue of the Instrument of Accession. Nonetheless, on twenty-three December 1947 the Central Government issued a notification purporting to delegate its extra-provincial jurisdiction concerning the plaintiff States under the Extra-Provincial Jurisdiction Act, 1947 (No. XLVII of 1947) to the Government of Orissa, which immediately began exercising such jurisdiction over all seven States. It is not entirely clear how a delegation of jurisdiction could occur before the Act had come into force, but the delegation was nonetheless effected. Subsequently, on eighteen May 1948 the Central Government issued another notification, this time under sections 3 and 4 of the Extra-Provincial Jurisdiction Act, 1947, which cancelled the earlier notification with respect only to the State of Seraikella and the State of Kharsawan, and transferred jurisdiction over those two States to the Government of Bihar. On the same day the Government of Bihar promulgated the Seraikella and Kharsawan States Order and assumed jurisdiction over them, while the remaining States continued to be administered by the Government of Orissa. The Constituent Assembly by the Government of India (Amendment) Act,

In 1949 the Government of India (Amendment) Act, No 1 of 1949 received the President of the Constituent Assembly’s assent on 10 January 1949 and amended the Government of India Act, 1935. The amendment inserted a new provision designated as section 290-A, which read 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 governance of any Indian State or of any group of such States are for the time being exercisable by the Dominion of India, the Governor-General may by 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 States or the group of States form 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.” The provision makes clear that the Governor-General could act under this new section only when the Dominion of India possessed full and exclusive authority, jurisdiction and powers over the governance of a State or group of States. Consequently, the Governor-General could issue an order of merger with respect to the seven States only on the basis of the Articles of Agreement dated December 1947; the Instrument of Accession alone did not confer such authority. Exercising the powers conferred by section 290-A, the Governor-General on 27 July 1949 promulgated an order titled the States’ Merger (Governors’ Provinces) Order, 1949. Section 3 of that order provided: “As 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 that Schedule.” Schedule III of the order listed the State of Seraikella among the two States merged into the Province of Bihar, while Schedule IV listed the remaining States as merged into the Province of Orissa.

In this matter the plaintiff States named in Suits Nos. 2 to 7 of 1950 had been merged into the Province of Orissa, while the plaintiff in Suit No. 1 had been merged into the Province of Bihar. Dissatisfied with the statutes, orders and notifications that effected their merger with either Bihar or Orissa, the plaintiff States instituted the present actions in the Federal Court of India exercising its original jurisdiction. Suit No. 1 was instituted on or about 15 January 1950 and the remaining six suits were instituted on 23 January 1950. Each suit named two defendants. The Dominion of India was designated as the first defendant in every case. In Suit No. 1 the second defendant was the State of Bihar, whereas in Suits Nos. 2 to 7 the second defendant was the State of Orissa. The principal written statements for all the suits were filed on behalf of the first defendant, and the second defendant—whether Bihar or Orissa—adopted the same contentions set out in those statements. An additional written statement was later filed by the first defendant raising a further preliminary question of law, and the second defendant also adopted this additional contention. When the Constitution of India came into force on 26 January 1950, article 374(2) provided that these suits were transferred to the newly created Supreme Court. The learned Chamber Judge ordered that the question raised in the additional written statement be tried as a preliminary issue.

Upon calling the suits for hearing on the preliminary issue, the learned Attorney General produced a list of seventeen issues. After discussion, counsel for both sides agreed that only the following matters should be determined first as preliminary issues: (1) whether, given the subject-matter of the suit and the provisions of article 363(1) of the Constitution, this Court possessed jurisdiction to entertain the suit; (2) whether the Federal Court had jurisdiction under section 204 of the Government of India Act, 1935, particularly concerning the existence and validity of the merger agreement; (3) whether this Court itself had jurisdiction to entertain the suit; (4) whether the suit was maintainable in view of the absence of the statutory notice required under section 80 of the Civil Procedure Code; (5) whether, in light of the Constitution, the plaintiff possessed legal capacity and was entitled to maintain the suit; and (6) whether this Court was competent to examine the validity of section 290-A of the Government of India Act, 1935, as enacted by the Constituent Assembly. The Court noted that Issue 6 appeared decisive. Article 1 of the Constitution declares that India shall be a Union of States and that the States and territories thereof shall be…

The Court observed that the Constitution identified the States and their territories in Parts A, B and C of the First Schedule. The First Schedule, through its three parts, listed the names of the States and set out the composition of each State’s territory. In particular, the third paragraph of Part A stated that the territory of each of the other States in that Part would consist of the lands that, immediately before the Constitution came into force, were included in the corresponding Province, together with any lands that, by virtue of an order made under section 290-A of the Government of India Act, 19.38, were at that time being administered as if they formed part of that Province.

According to the argument presented, the territories of the plaintiff States, by virtue of the States’ Merger (Governors’ Provinces) Order of 1949 made under section 290-A of the Government of India Act, 1935, had been administered immediately before the Constitution’s commencement as if they were part of the Provinces of Bihar or Orissa. Consequently, it was submitted that the territories of Bihar and Orissa now included the territories of the plaintiff States. The Court noted that, as a result of this administration, the subjects of the plaintiff States had become citizens of India, and their lands had been merged into the State of Bihar or Orissa, as appropriate. Because these former States were no longer listed among the States in Parts A, B or C of the First Schedule, the Court held that, for constitutional purposes, they had ceased to exist as States. Accordingly, they possessed no legal existence as acceding States that the Constitution-bound Court could recognise, and therefore they could not approach the Court to enforce political rights or maintain the suits.

Counsel for the plaintiffs, however, contended that the order made under section 290-A of the Government of India Act was ultra vires and illegal, and that the territories of the plaintiff States had never been lawfully administered as part of the Provinces of Bihar or Orissa. On that basis, they argued that the territories of Bihar or Orissa could not be said to comprise the territories of the plaintiff States. The Court found this contention to be misconceived. It explained that the phrase beginning with “which immediately before the commencement” and ending with “formed part of that Province” was merely descriptive of the territories that the Constitution intended to be included in the territories of Bihar or Orissa. The Court held that the validity of the order made under section 290-A was irrelevant to the question before it. The essential issue, the Court said, was whether the territories of the plaintiff States had indeed been administered as if they formed part of the Provinces of Bihar or Orissa and whether such administration had been effected by virtue of an order under section 290-A.

The Court observed that the order made under section 290-A of the Government of India Act must be answered in the affirmative, because the Constitution unquestionably governs the matter and the Court is bound to accept every provision of the Constitution without question. The Constitution expressly provides that the territories of Bihar and Orissa shall consist of the territories enumerated in Part A, and the Court therefore was required to accept that description. None of the plaintiff States appears among the States listed in Parts A, B or C, and consequently the Constitution does not recognise any of them as an acceding State. Moreover, the Government of India Act, which had earlier classified them as acceding States, had been repealed. As a result, the plaintiff States no longer possessed any existence under the Constitution and could not approach the Court to enforce any political rights. The Court further held that it was unnecessary to examine whether, under international law, a State might exist without territory or subjects, as had been the case for several States that were overrun in the last war and that functioned from foreign soil. The situation before the Court was fundamentally different. The plaintiff States involved in suits numbered 4, 5, 6 and 7 had ceased to be acceding States because of the Merger Agreement dated December 1947, which had been lawfully concluded by their respective Rulers. By virtue of the Constitution, those States were effectively dissolved, their territories having been merged with the States of Bihar and Orissa. Since the Constitution acknowledged no longer any such States as acceding or even as States, the Court could not recognise any political rights belonging to them. Although the suits might originally have fallen within the jurisdiction of the Federal Court, the repeal of the Government of India Act and the commencement of the Constitution rendered that jurisdiction obsolete. Under the Constitution, the plaintiff States ceased to exist altogether. Even if one were to assume they survived in a merely notional sense, they could no longer maintain a suit under section 204 of the Government of India Act, because that provision applied only to recognised acceding States. Consequently, the suits were deemed to have abated, analogously to an ordinary suit that terminates upon the death of the plaintiff. In the Court’s judgment, the suits could not be continued, and, having decided issue No 6, there was no need to consider any of the remaining preliminary issues. The suits were therefore dismissed. The Court recorded that the agents representing the plaintiffs were as follows: R.R. Biswas for suits 1, 3 and 4; P.K. Chatterjee for suits 2 and 5; S.C. Bannerjee for suits 6 and 7; and P.A. for the defendants.

At the conclusion of the judgment, the name “Mehta” appears, followed by a comma, indicating the judge who authored the opinion. The presence of this signature identifies the individual responsible for delivering the Court’s decision. No further commentary, analysis, or additional detail is provided beyond the appearance of this name, which serves as the formal concluding element of the written order.