Raj Rajendra Malojirao Shitole vs The State Of Madhya Bharat

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

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 4 and 6 of 1953

Decision Date: 2 February 1954

Coram: Mehar Chand Mahajan, B.K. Mukherjea, Vivian Bose, Ghulam Hasan

In the matter of Raj Rajendra Malojirao Shitole versus The State of Madhya Bharat, the Supreme Court of India delivered its judgment on 2 February 1954. The judgment was authored by Chief Justice Mehar Chand Mahajan, who sat with judges B.K. Mukherjea, Vivian Bose and Ghulam Hasan. The petitioner was Raj Rajendra Malojirao Shitole and the respondent was the State of Madhya Bharat; the State was also represented by Raja Balbhadra Singh. The case was cited as 1954 AIR 259 and 1954 SCR 748 and also referenced in the 1955 Supreme Court reports. The central question concerned the Constitution of India, article 385, and whether the Madhya Bharat Abolition of Jagirs Act (XXVIII of 1951) was void for having been enacted by a legislature that had not been validly constituted under the covenant entered into by the Rulers of Madhya Bharat, specifically the failure to comply with clause 1(c) of Schedule IV concerning the election of twenty members. The headnote recorded that the Madhya Bharat High Court had declared section 4(1)(g) and sub-clauses (iv) and (v) of clause 4 of Schedule I of the Abolition of Jagirs Act illegal and inoperative, a finding that was not contested by either party. Nevertheless, the parties argued that the Act itself was void because the legislature that passed it did not meet the covenant’s requirements. The Court held that the Madhya Bharat Legislative Assembly was in actual function on 26 January 1950, and that, in view of article 385 of the Constitution, the validity of statutes enacted by that Assembly could not be challenged, regardless of whether the Assembly had been formed in strict accordance with the covenant. The judgment further discussed the scope of articles 379, 382 and 385. The appeals arose under article 132(1) of the Constitution and were filed as Civil Appeals Nos. 4 and 6 of 1953, challenging the High Court order dated 4 December 1952 in Civil Miscellaneous Cases Nos. 614 of 1951 and 1 of 1952. Counsel for the appellants included P.R. Das with B. Sen and Rameshwar Nath, while the State was represented by M.C. Setalvad, Attorney-General for India, and K.A. Chitale, Advocate-General of Madhya Bharat, assisted by Shiv Dayal. The Court noted that the appeals, brought on behalf of three zamindars of Madhya Bharat, raised common constitutional issues and could be resolved together, and that the State had also filed cross-appeals. During the pendency of these appeals, two petitions under article 32 of the Constitution were presented to the Supreme Court seeking the same relief claimed by the appellants.

During the hearing of the appeals, counsel for the appellant in Civil Appeal No. 5 of 1953 requested permission to withdraw that appeal. The Court granted the request, and consequently the appeal was dismissed as withdrawn. In the same manner, Petition Nos. 116 and 117 of 1953, which had been filed under article 3, were also withdrawn and were dismissed accordingly. The remaining matters for consideration were Civil Appeals Nos. 4 and 6 of 1953; this judgment addresses only those two appeals.

The appellant in Civil Appeal No. 4 of 1953, Rajendra Maloji Rao Shitole, owned extensive landed properties in the State of Madhya Bharat. His possession comprised lands in 260 villages, held under various Sanads granted to his ancestors by the Rulers of Gwalior at different times. He alleged that the annual income derived from these properties amounted to Rs. 2,61,637. He further claimed that the State of Madhya Bharat was about to issue a notification, invoking its powers under section 3 of the Madhya Bharat Abolition of Jagirs Act, to resume all of his land. To prevent this, he filed a petition before the High Court on 7 December 1951 seeking a writ of mandamus that would restrain the State from issuing any notification under section 3(1) of the Act concerning his properties and from interfering with his rights in those lands.

The appellant in Civil Appeal No. 6 of 1953 was another jagirdar of the same State. He filed a petition of similar nature before the High Court, requesting the same relief—a mandamus restraining the State from issuing a notification under section 3(1) of the Abolition of Jagirs Act and protecting his property rights.

Both of these petitions, together with a number of additional petitions filed under article 226 of the Constitution challenging the validity of the Madhya Bharat Abolition of Jagirs Act, were heard by a bench of three judges of the High Court of Madhya Bharat. By a majority judgment, the Court upheld the Madhya Bharat Abolition of Jagirs Act No. XXVIII of 1951 as valid, except for section 4(1)(g) and sub-clauses (iv) and (v) of clause 4 of Schedule I, which the Court declared illegal and inoperative. The Court directed that a writ of mandamus be issued to the State Government, ordering it not to give effect to the impugned provisions of the Act. Leave to appeal to the Supreme Court was granted to the parties, and following that leave, the appellants filed the present appeals while the State filed two cross-appeals. The cross-appeals were not pursued by the Attorney-General and therefore required no further discussion; they were dismissed with costs.

Regarding Civil Appeals Nos. 4 and 6 of 1953, the factual background begins with events in April 1948, after the partition of India and the creation of the Dominions of India and Pakistan. At that time, the Rulers of the States of Gwalior, Indore and several other Central Indian States, believing that the welfare of the people of the region would be best secured through the formation of a united State with a common executive, legislature and judiciary, entered into an agreement to form the United State of Gwalior, Indore and Malwa (Madhya Bharat). This agreement laid the foundation for the subsequent legal and constitutional developments that are now before the Court.

In this matter, the Court explained that the rulers of the former princely states in the region concluded that the safest way to protect the people’s welfare was to create a single State that would combine the territories of their respective States under one executive, legislature and judiciary. Accordingly, they entered into an agreement to form a United State of Gwalior, Indore and Malwa, which later became known as Madhya Bharat. The rulers resolved to delegate the task of drafting a democratic Constitution for the new State to a Constituent Assembly composed of elected representatives of the people, and they intended that this Constitution would be framed within the overall framework of the Constitution of India, to which the rulers had already acceded. The covenant that recorded this agreement was made public on 7 October 1948.

Under article III of the covenant, the rulers agreed to elect a Rajpramukh to head the United State. Article VI required each ruler to transfer the administration of his former State to the Rajpramukh no later than 1 July 1948, and it stipulated that all rights, authority and jurisdiction previously belonging to the rulers, whether directly related to government functions or merely incidental, would vest in the United State and could thereafter be exercised only in accordance with the covenant or with the Constitution that would be framed under it. Article X provided that, as soon as practicable, a Constituent Assembly should be constituted to draft the Constitution for the United State, subject to the covenant and the Indian Constitution. Clause (2) of article X further directed the Rajpramukh to create, by 1 August 1948, an interim Legislative Assembly for the United State in the manner set out in Schedule IV.

Schedule IV specified the composition and method of election for that interim Legislative Assembly. It required a total of forty members to be elected by the members of the Gwalior Legislative Assembly, fifteen members to be elected by the members of the Indore Legislative Assembly, and twenty members to be elected by an electoral college that the Rajpramukh would establish in consultation with the Government of India to represent all other covenanting States. The schedule mandated that the election be conducted by proportional representation using the single-transferable-vote system, and it authorized the Rajpramukh to make rules necessary to give effect to these provisions and to ensure the proper constitution of the interim Assembly.

In compliance with the covenant, the Rajpramukh took the oath of office on 28 May 1948. Subsequently, on 8 and 9 May 1948, forty members representing the Indore group were elected to the interim Legislative Assembly. Regarding the election of the twenty members to be chosen by an electoral college, the Ministry of States, Government of India, wrote to the Rajpramukh on 5 July 1948 indicating that many practical difficulties existed in forming an electoral college of elected representatives from the various smaller States, because several of those States did not have any elected bodies. After weighing these difficulties, the Ministry suggested that the twenty seats be allocated among the different States, proposing that fourteen seats be filled by nominees of the Praja Mandal and the remaining six be nominated directly by the Rajpramukh. A subsequent letter dated 19 November 1948 modified this suggestion, and it was finally agreed that the Madhya Bharat Provincial Congress Committee would elect six persons to represent the smaller States in the interim Legislative Assembly. Although this arrangement did not exactly follow the wording of clause 1(c) of Schedule IV, the six individuals were elected on 19 October 1948 and were declared to have been validly elected in accordance with the covenant.

In the smaller States there were no elected bodies of any kind. After examining the practical difficulties, a proposal was made to the Rajpramukh that the twenty seats allotted for the smaller States could be distributed among the various States in a manner described in that proposal, with fourteen of the seats to be filled by nominees of the Praja Mandal and the remaining six seats to be filled by persons nominated directly by the Rajpramukh. This proposal was later altered by a letter dated 19 November 1948, and it was ultimately agreed that the Madhya Bharat Provincial Congress Committee would be requested to elect six persons to represent the smaller States in the Madhya Bharat interim legislative assembly. The final arrangement did not correspond exactly with the wording of clause 1(c) of Schedule IV of the covenant. The six representatives were elected according to the procedure set out in the two letters on 19 October 1948, and they were subsequently declared to have been validly elected under the terms of the covenant. On 30 October 1948 the Rajpramukh issued an ordinance titled “The Interim Legislative Assembly Ordinance Samvat 2005”, identified as Ordinance No. 18 of 1948. In the preamble to that ordinance it was stated that, in compliance with the covenant, the legislative assembly had already been duly constituted. The ordinance contained provisions governing the operation of the interim legislative assembly, including the manner in which the assembly could be summoned, dissolved or prorogued, the procedure for electing its President and Deputy President, the method by which it would exercise its voting powers, and the number of members required to constitute a quorum. This ordinance was repealed on 6 December 1948 and was replaced by Act XXIII of 1949. The assembly formed under these provisions was in actual operation on 26 January 1950, the date on which the Constitution of India came into force. During the interval between the formation of the interim assembly and the commencement of the Constitution, the rulers of the covenanting States entered into further covenants whereby they accepted the Constitution of India as the Constitution of the United State of Madhya Bharat and abandoned their earlier commitment to convene a separate constituent assembly for that United State. After the Constitution of India became effective, the interim legislative assembly that had been constituted by the Rajpramukh continued to function until sometime in 1952, when fresh elections were held and a new legislative assembly, formed in accordance with the constitutional provisions, was duly constituted. On 30 November 1949 the Government of the State of Madhya Bharat introduced a bill titled “Madhya Bharat Abolition of Jagirs Bill” before the interim legislative assembly. The bill was passed and became an act on 28 August 1951; it was then reserved for the President’s consideration, received the President’s assent on 27 November 1951, and was published in the Madhya Bharat Gazette Extraordinary on 7 December 1951. The enacted legislation, by

Section 3 of the Act required the Government, by means of a notification, to fix a date on which all jagir lands in the State would be resumed. Section 4 then stipulated that from that appointed date the rights, titles and interests of every jagirdar and of every other person claiming through him in the jagir lands—whether those lands comprised forests, trees, fisheries, wells, tanks, ponds, water-channels, ferries, pathways, village sites, huts, bazaars, mela grounds, mines or minerals, whether they were being worked or not—would stand resumed to the State and would be free from all encumbrances. In addition, the Act contained a provision for a scheme to assess compensation in respect of the jagirs thus resumed. The appellants challenged the validity of this legislation on several grounds, inter alia on two principal points. First, they contended that the body which had passed the Act was not a legislature within the meaning of the covenant entered into by the Rulers of Gwalior, Indore and certain other Central Indian States for forming the United State of Gwalior, Indore and Malwa (Madhya Bharat), nor was it a legislature within the meaning of Schedule IV of that covenant. Second, they argued that the Madhya Bharat legislature lacked competence to enact the Act, that the acquisition or resumption of jagirs was not for a public purpose, that there was no provision for payment of compensation as understood in law, that the compensation described in the Act was wholly illusory, and that the Act amounted to a fraud on the Constitution.

Before the High Court, counsel appearing for most of the petitioners, identified as Mr. P. R. Das, limited his arguments to some of the grounds set out in clause (2) above. He reserved for this Court the contention that the impugned Act had been passed by a legislature not validly constituted, noting that the Madhya Bharat High Court, in the Full Bench decision of Shree Ram Dubey v. The State of Madhya Bharat(1), had already rejected that contention. The two issues he raised before the High Court were: (1) that there was no public purpose behind the acquisition for the resumption of jagir lands, rendering the Act unconstitutional and illegal; and (2) that certain provisions of the Act were ultra vires because they constituted a fraud on the Constitution. Both of these points, though urged before the High Court, were not advanced before this Court by the learned counsel. The argument that there was no public purpose was abandoned, as the Court had already decided in the Orissa Zamindari appeals, K. C. Gajapati Narayan Deo and Others v. The State of Orissa(2), A.I.R. 1952 M.B. 57-178, A.I.R. 1953 S.C. 375, [1954] S.C.R. 1. Regarding the second point, three provisions of the impugned Act had been declared void by the High Court, and Mr. Das accepted that decision. Although the State Government challenged the correctness of the High Court’s declaration of those three provisions as void, it did not pursue that challenge further before this Court.

Because the State Government did not pursue the second issue, the matter before this Court was confined to the single question raised in the petition: whether the statute that was challenged had been enacted by a Legislature that was not validly constituted under the covenant entered into by the Rulers of Madhya Bharat. Counsel for the petitioner, Mr P R Das, argued that the Interim Legislative Assembly had been formed in contravention of Schedule IV of the covenant and therefore qualified as a body of usurpers; consequently, any legislation it passed should be regarded as wholly void and of no legal effect. He further contended that the two organisations identified – the Praja Mandal and the Provincial Congress Committee – each elected members in separate divisions (fourteen members by the Praja Mandal and six by the Congress Committee) but together did not constitute the electoral college required by clause 1(c) of Schedule IV. Accordingly, the elected members could not be said to have been chosen in accordance with the schedule, and, in the absence of an amending covenant, the Rajpramukh and the Government of India lacked authority to alter the Schedule’s provisions. According to Mr Das, the purpose of clause 1(c) of Schedule IV was to ensure that the twenty members representing the Covenanting States, other than Gwalior and Indore, were elected by an electoral college formed by the Rajpramukh in consultation with the Government of India. He asserted that the method employed – election of fourteen members by the Praja Mandal and six by the Congress Committee – breached the covenant, failed to provide representation for minority interests, and did not give effect to the requirement that the election be conducted by proportional representation through the single-transferable-vote system. The Attorney-General responded to these contentions by making four principal submissions: firstly, that the issue was no longer open for consideration because of the operation of article 385 of the Constitution of India; secondly, that the election of the twenty members representing the eighteen States was carried out in literal compliance with the covenant; thirdly, that even if any defect existed, there was substantial compliance with the covenant; and fourthly, that the declarations made in the Ordinance by the Rajpramukh and the provisions contained therein were conclusive, had been accepted by all the concerned States, and could no longer be challenged. After carefully reviewing the arguments presented by Mr P R Das and the Attorney-General, the Court concluded that a detailed examination of every point raised by counsel was unnecessary, as the matter was settled by the provisions of article 385 of the Constitution of India. The Court acknowledged that the election of the twenty members was not conducted strictly in the manner specified in Schedule IV, but noted that this fact was not contested before the High Court and could not be disputed in the present proceedings.

In this case, the Legislative Assembly that enacted the impugned Act did so on 26 January 1950. Although its constitution was defective, the Assembly was nonetheless operating as the Legislature of the State of Madhya Bharat. The Assembly’s creation had been declared by an Ordinance issued by the Rajpramukh, and the reality of its existence could be seen from the statutes it passed after its formation. Part XXI of the Constitution of India is titled “Temporary and Transitional Provisions”. Roughly twenty-four articles compose this part, and each of them deals with how to resolve the problems that arose during the interval between the repeal of the Government of India Act and the establishment of the bodies and authorities created by the new Constitution. Until the Houses of Legislature or the other bodies established by the Constitution could be properly constituted and summoned, it was necessary to specify with reasonable certainty which bodies or authorities would discharge the duties assigned by the various constitutional provisions in the interim. At the time a silent revolution was occurring, the princely states were rapidly disappearing, and a new democratic Constitution was being framed. Because the switch from the old constitutional framework to the new one had to be effected quickly, there was scarcely any opportunity to examine whether the institutions that had been created under the earlier constitutions were formed in strict compliance with those constitutions or whether they possessed any defects. Consequently, the framers of the Constitution acknowledged the factual existence of those institutions, gave them recognition in the Constitution, and vested in the bodies that were actually functioning—whether regularly or irregularly—the authority to exercise the powers and perform the duties provided for by the Constitution. This approach is the clear purpose of all the articles that appear in Part XXI. Particular reference may be made to articles 379, 382 and 385, the latter of which directly governs the present controversy. Article 379 reads as follows: “(1) Until both Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution shall be the provisional Parliament and shall exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament. Explanation.—For the purposes of this clause, the Constituent Assembly of the Dominion of India includes— (i) the members chosen to represent any State or other territory for which representation is provided under clause (2), and (ii) the members chosen to fill casual vacancies in the said Assembly.” The provision therefore makes, in unequivocal terms, the body that was functioning as the Constituent Assembly—whether it had been constituted perfectly or imperfectly and regardless of its membership on the date immediately preceding the commencement of the Constitution—into the provisional Parliament.

The Constitution provided that the provisional Parliament was to receive all functions and duties ordinarily conferred on Parliament by the constitutional provisions. Under the same article, the President was authorised to increase the membership of this provisional body so that States which had not previously been represented could obtain representation. The article further stipulated that any vacancies occurring in the provisional Parliament could be filled, and that individuals elected or appointed to fill those vacancies would be deemed members of the provisional Parliament.

These clauses demonstrated that the framers of the Constitution recognised the factual existence of certain legislative bodies without deciding whether those bodies had been validly constituted under the new constitutional scheme. Article 382 was drafted in a comparable manner. It stated that until the house or houses of the legislature of each State listed in Part A of the First Schedule were duly constituted and summoned for their first session under the Constitution, the house or houses of the legislature of the corresponding Province that were functioning immediately before the Constitution’s commencement would exercise the powers and perform the duties assigned by the Constitution to the state legislature.

Article 385 echoed the language of the preceding articles. It provided that until the house or houses of the legislature of a State listed in Part B of the First Schedule were duly constituted and summoned for their first session under the Constitution, the body or authority that had been functioning immediately before the Constitution’s commencement as the legislature of that Indian State would exercise the powers and perform the duties conferred by the Constitution on the legislature of the specified State.

The overall purpose of these articles was to recognise those bodies, authorities, or houses of legislature that were actually operating before 26 January 1950 and to invest them with the constitutional powers that the new Constitution assigned to the respective legislative institutions. The framers sought to establish a clear interim arrangement that would prevent disputes during the transition period concerning which entity held the authority to exercise constitutional powers. Accordingly, they adopted the formula that whichever body or authority or house of legislature was functioning at the moment of the Constitution’s commencement would be deemed the entity authorised to exercise the powers and perform the duties that the Constitution prescribed for the corresponding body. By doing so, they avoided any uncertainty and treated the existing functioning bodies as specially designated holders of those powers.

The Court observed that the scheme of the relevant part of the Constitution together with the clear and unambiguous wording of article 385 required that the Madhya Bharat Interim Legislative Assembly, which was actually functioning on 26 January 1950, was deemed to have been invested with the powers vested by the Constitution, regardless of whether the Assembly had been properly constituted according to the terms of the covenant. Accordingly, any inquiry into the manner of its formation was barred by the procedure adopted by the Constitution. The Court explained that this procedure was fully justified on grounds of public policy and necessity, aimed at protecting the public and individuals whose interests might be affected. It further noted that without the adoption of this formula, endless confusion would have ensued, because the Constitution would have left open questions concerning the original formation of such bodies. By giving validity and recognition to the bodies or authorities actually functioning on 26 January 1950, the Constitution not only affirmed their existence but also conferred upon them the powers specified in its provisions. In applying this understanding of the true meaning and intention behind article 385, the Court concluded that the argument raised by Mr P.R. Das concerning a defective formation of the Madhya Bharat Interim Legislative Assembly lacked any validity. Even assuming that the Assembly had not been formed in strict compliance with the provisions laid down in Schedule IV of the covenant, such a defect did not affect the constitutionality of the statute that was being challenged. The impugned statute had been enacted in 1951, after the Constitution of India had already recognised the Assembly and conferred upon it the powers prescribed by article 385. Consequently, when the Assembly enacted the statute, it was exercising powers granted by the Constitution of India and not by the covenant that had originally brought it into existence. For these reasons, the Court held that the sole contention advanced by Mr P.R. Das could not be sustained and was not well founded. Accordingly, the Court dismissed both appeals, ordered that costs be awarded, and recorded the dismissal of the appeals. The record further noted the agents appearing on behalf of the parties: the appellant in civil appeal No 4 was represented by an agent, N Shroff; the appellant in civil appeal No 6 was represented by an agent, Rajinder Narain; and the respondent was represented by an agent identified as R.H.