Maharaj Umeg Slng And Others vs The State Of Bombay And Others

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

Court: supreme-court

Case Number: Not extracted

Decision Date: 6 April, 1955

Coram: Natwarlal H. Bhagwati, Syed Jaffer Imam

In this matter the Supreme Court of India rendered its judgment on 6 April 1955 in the case titled Maharaj Umeg Slng And Others versus The State of Bombay and Others. The opinion was authored by Justice Natwarlal H. Bhagwati and the bench was composed of Justices Natwarlal H. Bhagwati, Syed Jaffer Imam, Mukherjee, B. I. K. R. (Chief Justice), Das, Sudhi Ranjan Aiyyar, T. L. Venkatarama Imam and Syed Jaffer. The petitioners were Maharaj Umeg Slng and several others; the respondents were the State of Bombay together with other parties. The case is reported at 1955 AIR 540 and 1955 SCR (2) 164. The central question concerned the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 (referred to as Bombay Act XXXIX of 1954), specifically whether the enactment was ultra vires the State Legislature. The contention arose from the agreement of merger and the letters of guarantee given by the Government of India to the rulers of the merged states, especially clause 5 of those letters. The petitioners argued that the Act infringed legislative powers of the State under Article 246 of the Constitution, violated the limitation in Article 363 that bars judicial jurisdiction over merger agreements, and transgressed fundamental rights secured by Articles 14, 19(1)(f) and 31(2), subject to the protection of Article 31-A(2)(a). The Court’s headnote explained that under Articles 246(2) and (3) the legislature of a State possesses plenary authority to legislate on matters enumerated in Lists II and III of the Seventh Schedule, and that such competence can be curtailed only by an express constitutional prohibition. Accordingly, no restriction on the State’s legislative power could be derived from clause 5 of the letters of guarantee, which merely preserved the continuance of jagirs and saved the State’s right to enact non-discriminatory legislation. The Court further held that challenges to the Act on the basis of Articles 14, 19(1)(f) and 32(2) could not succeed because Article 31-A(2)(a) applied, and Article 363(1) excluded Court jurisdiction over disputes arising from the merger agreements and the letters of guarantee. Consequently, the Court declared the Bombay Act XXXIX of 1954 to be intra vires the State Legislature. Procedurally, petitions numbered 337 to 349, 365, 366, 481 and 690 of 1954 were dismissed, while petition 364 of 1954 was adjourned. The judgment also cited earlier authorities including Vajesingji v. Secretary of State (51 I.A. 357), Secretary of State v. Sardar Rustam (68 I.A. 109), State of Saraikella v. Union of India (1951 SCR 474) and Thakur Jagannath v. The United Provinces.

The Court referred to earlier authorities, namely Thakur Jagannath v. The United Provinces ([1946] F.C.R. 111) and the case cited in ([1943] F.C.R. 72). The matter before the Court arose under original jurisdiction as petitions filed under Article 32 of the Constitution for the enforcement of fundamental rights. Counsel for the petitioners was led by K L Gauba, who was assisted on various petitions by different junior counsels. For petitions numbered 337 to 343 and 481 of 1954, K L Gauba was joined by Gopal Singh. In petitions 344, 446 and 349 of 1954, he was accompanied by S D Sekhri. For petition 345 of 1954, K L Gauba worked with R Patnaik and S D Sekhri. In petition 347 of 1954, his team included N C Chakravarty and S D Sekhri, while for petition 348 of 1954 he was assisted by B Moropant and S D Sekhri. The petition 364 of 1954 was presented by Rajni Patel and M S K Sastri. Rajni Patel together with I N Shroff represented the petitioners in petitions 365 and 366 of 1954. For petition 690 of 1954, counsel comprised J B Dadachanji and Rajinder Narain. The respondents were represented by M C Setalvad, Attorney-General for India, and C K Daphtary, Solicitor-General for India, with P A Mehta and R H Dhebar appearing for P G Gokhale. The judgment was delivered on 6 April 1955 by Justice Bhagwati.

Justice Bhagwati observed that the petitions challenged the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953, also known as Bombay Act XXXIX of 1954, which had been enacted by the Legislature of the State of Bombay to abolish jagirs in the merged territories and areas. The legislative history recorded that the Bill was passed by the State Legislature on 22 September 1953, received the assent of the Upper House on 26 September 1953, and obtained the President’s assent on 13 June 1954. By a notification dated 15 July 1954, the Act was brought into force effective from 1 August 1954. In response to that notification, the petitioners filed their petitions on 30 July 1954, questioning the constitutionality of the Act and seeking appropriate writs to restrain, among other things, the State of Bombay from implementing its provisions. The Court noted that on applications filed on 31 July 1954, it stayed the operation of the impugned Act pending the final disposal of the petitions. The Court further identified the categories of petitioners: those in petitions 337, 344, 345, 346, 347 and 349 of 1954 were relatives of the ruler of the former State of Idar; petitioners in petitions 338 and 342 of 1954 were relatives of the ruler of the former State of Chhota Udaipur; petitioners in petitions 339 and 341 were relatives of the ruler of the former State of Devgad Baria; the petitioner in petition 343 of 1954 was a relative of the ruler of the former State of Rajpipla; and the petitioner in petition 340 of 1954 was a jagirdar of the former State of Rajpipla. These details established the personal and hereditary interests claimed by the petitioners against the statutory abolition of jagirs.

The petitioners listed in the various filings included a petitioner in petition number three hundred forty-eight of 1954 who claimed to be a relative of the ruler of the former State of Bansda. The petitioners identified in petitions numbered three hundred sixty-five and three hundred sixty-six of 1954 were described as jagirdars of the former States of Idar and Lunawada respectively. The petitioner in petition number four hundred eighty-one of 1954 asserted a relationship to the ruler of the former State of Mohanpur. The petitioners named in petition number six hundred ninety of 1954 were the holders of personal inams that had been granted by the former State of Rajpipla. Except for the holders of the personal inams, each of the other petitioners claimed that they were hereditary jagirdars whose jagirs had been granted by the respective former States for the purpose of supporting themselves, their families and their dependents; they further contended that they held these jagirs as jiwa-jagirs. The holders of the personal inams cited in petition six hundred ninety of 1954 had previously paid a salami to the former State of Rajpipla and were therefore considered, within the meaning of the impugned Act, to be jagirdars because they possessed agir villages as defined in the Act. The petitioner named in petition three hundred sixty-four of 1954 claimed ownership of sixty villages situated in the patta or territory of Moti Moree, which were part of the former State of Idar; he asserted that he held these villages as a bhumia, or under-lord, and argued that his possession did not fall within the definition of a jagir as provided in the impugned Act, and consequently that the State of Bombay had no authority to enforce the Act against him. All of these petitioners challenged the legality of the impugned Act on the basis of the merger agreements that had been executed by the rulers of the respective former States with the Dominion of India around the nineteenth of March, nineteen hundred and forty-eight, together with the collateral guarantee letters issued by the Ministry of States at later dates, which the petitioners treated as integral parts of those merger agreements. The merger agreements were presented in the form included in Appendix thirteen of the White Paper on page one hundred eighty-three and began with a heading indicating a “Form of Merger Agreement Signed by Rulers of Gujarat and Deccan States.” The agreement recorded that, in the immediate interest of integration, the rulers desired that the administration of their States be merged as promptly as possible with that of the province, in a manner to be determined by the Government of the Dominion of India. Article one of the agreement stipulated that the rulers ceded to the Dominion Government full and exclusive authority, jurisdiction and powers concerning the governance of their States, and that administration would be transferred to the Dominion Government on a specified day in nineteen hundred and forty-eight, thereafter allowing the Dominion Government to exercise those powers, authority and jurisdiction in any manner or through any agency it deemed appropriate. Article two provided that, effective from that day, the former rulers would be entitled to receive from the State revenues an annual sum specified in the agreement, free of taxation, intended to cover all expenses of the ruler and his family, and that this sum would be drawn in four equal instalments at the beginning of each quarter by presenting the appropriate bills to the State Treasury or another treasury designated by the Dominion Government.

In the agreement the Ruler was declared to be entitled to receive, each year, a fixed sum of rupees from the revenues of the State as his privy purse. The amount was expressly stated to be free of any tax and was intended to meet all expenses of the Ruler and his family, including costs for personal staff, the maintenance of residences, marriages, other ceremonies and similar outlays. The agreement further provided that the sum would never be increased or decreased for any reason. The Ruler could draw the amount in four equal instalments, each instalment being paid in advance at the beginning of a quarter. To obtain each instalment the Ruler was required to present bills either at the State Treasury or at any other Treasury that might be specified by the Dominion Government. Article 3 of the agreement conferred upon the Ruler full ownership, use and enjoyment of every private property that was distinct from State property as of the date of the agreement. The Ruler was obliged to furnish the Dominion Government, before the specified day in 1948, with a detailed inventory of all immovable property, securities and cash balances that he held as private assets. Should any dispute arise concerning whether a particular item belonged to the private estate of the Ruler or to the State, the matter was to be referred to an officer possessing judicial experience, who would be nominated by the Dominion Government; the decision of that officer was declared to be final and binding on both parties. Article 4 stipulated that the Ruler would retain all personal privileges that he had enjoyed either within or outside the territories of the State immediately prior to the fifteenth day of August 1947. Article 5 guaranteed that the Dominion Government would uphold the succession to the gadi of the State in accordance with law and custom, and would also safeguard the personal rights, privileges, dignities and titles of the Ruler. The agreement was signed by Mr Vapal Pangunm Menon, then Secretary to the Government of India in the Ministry of States, acting on behalf of the Governor-General of India and on his own behalf as well as for his heirs and successors. Subsequent letters of guarantee issued by the Ministry of States reiterated several assurances: first, that the privy purse would be fixed according to the formula applied to the Deccan States whose territories had merged into Bombay Province, that the amount would be perpetual for the Ruler, his heirs and successors, and that it would remain free of all taxes and would not be considered in any assessment of world income for income-tax or super-tax purposes; second, that the cash balances and other assets of the State on the day of transfer of administration to the Dominion Government would, as far as practicable, be expended for the benefit of the people of the State; and third, that the Ruler would be entitled to the full ownership, use and enjoyment of.

All Darbari or private properties that were owned by the Ruler on the date when the administration of the State was transferred to the Dominion Government were to remain his personal property. The term “Darbari properties” covered palaces, houses, residences, guest houses, stables, garages, quarters, outhouses and similar buildings that, at the moment of transfer, were in genuine personal use or occupation by the Ruler, his family members or his personal staff. This definition applied irrespective of whether the property was situated in the capital, elsewhere in the State, in Bombay or in any other location outside the State. The guarantee further stipulated that the permanent members of the State’s public services would continue in service on conditions that were not less advantageous than those governing them on 1 April 1948; if continuation of service proved impossible, the State would pay reasonable compensation. Pensions, gratuities, annuities and allowances that the State had granted to members of its public services who had retired or taken leave preparatory to retirement before 1 April 1948, together with the enjoyment of ownership of Khangi villages, lands, jagirs and other grants that existed on that date, were also guaranteed. This guarantee was given without prejudice to the right of the Government of Bombay to enact any legislation that did not discriminate against the States or their subjects. All emblems, insignia, articles and other paraphernalia belonging to the Ruler were to be regarded as his private property. The guarantee further provided that no order or action taken by the Ruler before the transfer of administration would be questioned, unless such order or action was taken after 1 April 1948 and was deemed by the Government of India to be palpably unjust or unreasonable; the Government of India’s decision on that point was to be final. Moreover, no enquiry or legal proceeding could be instituted in any Indian court against the Ruler, whether in a personal capacity or otherwise, for anything done or omitted during his period of administration of the State. Finally, any dispute concerning succession in a Gujarat State that had signed an agreement integrating its administration with that of the Province of Bombay was to be decided by a Council of Rulers of Gujarat States, after referral to the High Court of Bombay and in accordance with the High Court’s opinion. All questions relating to the rights, dignities and privileges of the Ruler were also to be considered by that Council, which would make appropriate recommendations to the Governments of Bombay and of India. The Council was to consist of the Rulers of all full-jurisdiction Gujarat States, whether salute or non-salute, but no ruler younger than twenty-one years was to be a member of the Council.

The Council was required to choose one of its own members to serve as the President of the Council. The method of election was to be internal to the Council, and no external authority was to be involved in the selection. Once elected, the President, together with all other members of the Council, would remain in office for a fixed period of five years. The five-year term was measured from the date on which each individual actually assumed the duties of his or her respective office, rather than from the date of election or any other arbitrary reference point. This provision was intended to provide stability and continuity in the administration of the Council’s functions throughout the defined tenure.

The document further stated that the substance of the letter being examined would be treated as an integral component of the merger agreement that had been concluded between the addressee and the Governor-General of India. In other words, the contents of the letter were not to be regarded as a separate or ancillary instrument, but rather as forming part of the binding contractual framework that governed the integration of the concerned State into the Dominion. The implication was that every clause, representation or guarantee contained in the letter would acquire the same legal effect as the other provisions of the merger agreement, and consequently would be enforceable under the same principles that applied to the agreement as a whole.

The petitioners advanced a series of arguments that relied principally upon clause 5 of the Letters of Guarantee referenced above. They asserted that clause 5 guaranteed the continued enjoyment of ownership of the jagirs that existed on 1 April 1948, and that this guarantee was expressly binding upon the State of Bombay. According to the petitioners, the State of Bombay, by accepting the guarantee, had either waived any residual right to legislate on the subject of the jagirs or, at the very least, lacked the legislative competence to enact a law that would deprive the jagir holders of their ownership rights. The petitioners further contended that, although the Government of Bombay had reserved to itself the authority to pass legislation that did not discriminate against the States and their subjects, the impugned Act was ultra vires because it sought to deprive the jagir owners of their ownership. They maintained that the Act was not only beyond the State’s power but also discriminatory and confiscatory, thereby violating the protective intent of the guarantee and the broader principle of non-discrimination endorsed by the merger arrangements.

The State of Bombay presented a contrasting set of contentions. It argued that the merger agreements and the accompanying letters of guarantee had been executed by the Dominion of India and therefore did not bind the State of Bombay directly. According to this view, the petitioners were not parties to those agreements and could not claim any rights enforceable under them. Even if the petitioners were treated as parties to the agreements, the State maintained that the dispute arose from provisions that had been entered into before the commencement of the Constitution, involving the Rulers of the respective States and the Government of the Dominion of India. Accordingly, the State asserted that the Constitution’s article 363 barred the court from entertaining such disputes, placing them beyond judicial jurisdiction. Moreover, the State argued that, unless the Constitution expressly prohibited legislation on a particular subject, the State Legislature possessed plenary legislative power within its sphere. The State claimed that clause 5 of the letters of guarantee did not contain any prohibition that would limit that legislative competence, and therefore the impugned Act was intra vires the State Legislature’s authority and could not be successfully challenged.

Finally, the petitioners advanced an additional argument concerning the constitutional classification of the jagirs. They submitted that the estates in question fell within the definition provided by article 31-A(2)(a) of the Constitution. Under that article, any law that provided for the acquisition of estates or the extinguishment or modification of the rights attached thereto was shielded from being declared void on the ground that it contravened or abridged any of the rights guaranteed by the provisions of Part III of the Constitution. Consequently, the petitioners contended that the impugned legislation, being a law that dealt with the acquisition and alteration of the jagirs, could not be attacked as violative of any fundamental right. They emphasized that the legislation provided for fair and adequate compensation and that it treated the States and their subjects on an equal footing with the subjects of the original State of Bombay, thereby negating any claim that the law was confiscatory or discriminatory.

In this case the petitioners argued that a statute which authorised the State to acquire the estates involved and the rights attached to them, or to extinguish or modify those rights, could not be held void on the ground that it conflicted with or reduced any rights granted by the provisions of Part III of the Constitution. Consequently, they maintained that the impugned Act could not be attacked as violating any of the petitioners’ fundamental rights. The petitioners further submitted that none of the provisions of the Act were confiscatory or discriminatory in any way. They pointed out that the statute provided for fair and adequate compensation for the abolition of the jagirs and that the states and their subjects were not treated in a discriminatory manner when compared with the subjects of the original State of Bombay.

The petitioners also addressed the contention that the agreements of merger and the letters of guarantee, which were executed by the Dominion of India, were not binding on the State of Bombay. They contended that the Government of the Dominion of India was unquestionably bound by those guarantees and that, when the former princely states which had been parties to the merger agreements and the letters of guarantee were merged into the Province of Bombay, the obligations of the Dominion Government devolved upon that Province in accordance with clause 8 of the States’ Merger (Governors’ Provinces) Order, 1949 (Appendix XLIV, White Paper, page 297). The petitioners explained that these obligations were therefore deemed to have been undertaken by the Dominion Government on behalf of the absorbing Province, namely the Province of Bombay, and consequently became binding on the Province of Bombay. They further argued that, when the Constitution came into force on 26 January 1950, article 294 required that all rights, liabilities and obligations of the Government of each Governors’ Province, whether arising out of any contract or otherwise, were to be transferred to the Government of the corresponding State. Accordingly, the obligations that had attached to the Province of Bombay became the obligations of the State of Bombay.

The petitioners submitted that, as a result, the State of Bombay was bound by all the obligations that the Dominion Government had undertaken under the merger agreements and the letters of guarantee, and that it could not arbitrarily repudiate those obligations. The Court recognised that this line of argument possessed some merit, but noted that it was not necessary to resolve the issue of whether the State of Bombay was bound, because even assuming that the State was indeed bound, the remaining question was the extent to which the petitioners could enforce those obligations against the State. The petitioners were not parties to the merger agreements or the letters of guarantee in their own right. Their claim to be considered parties to those instruments was based solely on the fact that the rulers of the erstwhile states had not personally negotiated the merger agreements nor obtained the letters of guarantee on their own behalf.

It was submitted that the guarantee obtained by the former Rulers covered not only their own personal rights and properties but also represented the interests of the States and their subjects. Because the Rulers acted on behalf of the States, the subjects of those States were considered to be represented by the Rulers and therefore entitled to any benefit arising from the obligations that the Dominion of India had undertaken in relation to the States and their people. Consequently, it could be argued that both the former Rulers and the subjects of the erstwhile States would possess a legal position to enforce the obligations undertaken by the Dominion. This contention, however, was countered by reliance on a pronouncement of the Privy Council in the case of Vajesingji Joravarsingji v. Secretary of State for India in Council(1) at page 360, which stated: “When a territory is acquired by a sovereign state for the first time that is an act of state…Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing. Moreover, even if a treaty of cession stipulates that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal courts. The right to enforce remains only with the high contracting parties.” Those observations were subsequently quoted with approval in Secretary of State v. Sardar Rustsam Khan & Others(2) at page 124. On the basis of that authority, it was argued that only the high-contracting parties—the Rulers of the respective States—could enforce the obligations, and that the petitioners, for whose benefit the Dominion Government had undertaken those obligations, could not claim such a right.

The Court indicated that it was not required to pass judgment on the correctness of either argument because, irrespective of the outcome, the petitioners would be unable to maintain their proceedings. If the petitioners were deemed to be parties to the merger agreements and the letters of guarantee, they would encounter a bar to maintainability under article 363 of the Constitution. Article 363 provides that 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 similar instrument that was entered into or executed before the commencement of the Constitution by any “Ruler of an Indian State” and to which the Government of the Dominion of India was a party. Conversely, if the petitioners were held not to be parties to those instruments, they would likewise lack standing as the contracting parties and consequently would be unable to enforce the obligations. This dual limitation demonstrated that the petitioners would be excluded from judicial relief under either legal construction.

The Court observed that if the petitioners were not themselves parties to the original contracts, they could not claim the right to enforce those obligations. Consequently, counsel for the petitioners argued that the controversy between the parties did not spring from the provisions of the merger agreements or the letters of guarantee, which had been entered into or executed by the Rulers of the respective States and to which the Government of the Dominion of India was a party. According to the petitioners, their challenge was limited to questioning the constitutional validity of the impugned Act, and they relied upon clause 5 of the letters of guarantee to argue that the State Legislature lacked the legislative competence to legislate on the abolition of jagirs. It was submitted that the dispute therefore did not arise out of the merger agreements or the letters of guarantee but instead concerned the legislative act of the State in passing the impugned Act, which allegedly contravened directly the guarantee contained in clause 5 of those letters. The Court, however, rejected this line of argument. On examination of the allegations set out in the petitions, the Court found that the entire purpose of the petitions was to enforce clause 5 of the letters of guarantee. The petitioners had relied upon clause 5, which had been obtained by the former Rulers of the State from the Dominion Government, and complained that the State Legislature had enacted the impugned Act without authority, thereby violating clause 5 and wrongfully depriving the petitioners of their jagirs, the ownership of which had been guaranteed by that clause. Thus, the petitions amounted solely to a claim to enforce the petitioners’ rights under the letters of guarantee, making the dispute clearly related to the merger agreements and the letters of guarantee and therefore falling within the bar of article 363(1) of the Constitution. The Court noted that a similar contention had been raised by the plaintiffs in State of Seraikella and Others v. Union of India and Another, where Chief Justice Kania, at page 490 of the report, rejected the argument. He stated: “The plaintiff contends firstly that it had signed the Instrument of Accession through its Ruler. The State next complains that, acting beyond the powers given under the Instrument of Accession, the Dominion of India and the State of Bihar are trespassing wrongfully on its legislative and executive functions, that the Dominion of India and the State of Bihar are making laws which they have no power to make, having regard to the Instrument of Accession, and are wrongfully interfering with the administration of the State beyond the rights given to them under the Instrument of Accession. The whole plaint is nothing else except the claim to enforce the plaintiff’s right under the Instrument of Accession. The dispute therefore in my opinion clearly is in respect of this Instrument of Accession and is covered by Article 363(1) of the Constitution.” This precedent reinforced the view that the petitioners’ claim was likewise an attempt to enforce rights under an agreement covered by article 363(1), thereby placing the matter beyond the jurisdiction of the Court.

In that passage the Court observed that the question of the validity of the various statutes and orders was rooted in the rights claimed under the Instrument of Accession as far as the plaintiff was concerned. Consequently it could not be urged that the petitioners were not seeking to enforce the obligations undertaken by the Dominion Government under the merger agreements and the letters of guarantee, nor that the disputes between the parties did not arise out of the provisions of those merger agreements and letters of guarantee which had been executed by the Rulers of the respective States and to which the Government of the Dominion of India was a party within the meaning of Article 363 of the Constitution of India. The Court noted the citation (1) 1951 S.C.R. 474. If that were the correct position, the jurisdiction of this Court would be ousted and the Court could not interfere in those disputes. Assuming, however, that the petitioners were entitled to enforce the obligation and guarantee incorporated in clause 5 of the letters of guarantee, the Court identified a further difficulty for the petitioners: the State Legislature was fully competent to enact the impugned Act notwithstanding the terms of the guarantee. The Court explained that the legislative competence of a State Legislature could be limited only by an express prohibition contained in the Constitution itself and that, unless the Constitution contained a provision expressly prohibiting legislation on a subject either absolutely or conditionally, there was no fetter on the plenary powers which the State Legislature enjoyed to legislate on matters enumerated in Lists II and III of the Seventh Schedule. It was conceded on behalf of the petitioners that the subject matter covered by the impugned Act fell within List II of that Schedule and that the vires of the Act could not be challenged on that ground. The petitioners’ ground of attack was that the Dominion Government and therefore the State Government had waived its right to legislate on the abolition of jagirs or had in any event placed a fetter on their power to issue any legislation in that regard by the terms of the guarantee contained in clause 5 of the letters of guarantee. They contended that clause 5 gave an absolute guarantee by the Dominion Government concerning the enjoyment of ownership of jagirs and that the Dominion Government and therefore the State of Bombay were precluded from enacting any legislation that would destroy that ownership. The Court held, however, that this contention could not be supported by the wording of clause 5, which in its first part set out the terms of the guarantee and in its second part provided that the guarantee was without prejudice to the right of the Government of Bombay to issue any legislation which did not discriminate against the States and their

The Court observed that the guarantee contained in clause 5 was not an unconditional or absolute promise. Rather, the guarantee was limited by a reservation that allowed the Government of Bombay to make laws concerning jagirs, on the condition that such laws did not discriminate against the States or their subjects. This reservation, the Court explained, essentially qualified the first part of the clause, which set out the guarantee itself. The language of the clause did not indicate that the ownership of jagirs was immune from legislative alteration; instead, it allowed legislation that dealt with specific aspects of the enjoyment of that ownership.

Accordingly, the Court held that the Government of Bombay possessed an express authority to enact legislation affecting the enjoyment of jagir land ownership, and this authority extended even to legislation that abolished jagirs. The only restriction on this legislative power was the requirement that any such law must not discriminate against the States or their subjects. The Court further noted that this single limitation was the only fetter placed on Bombay’s power to legislate concerning the enjoyment of jagir ownership. If the same limitation could be imposed on the State Legislature, the petitioners would have been entitled to challenge the impugned Act on the ground of discrimination against the States and their subjects.

The Court then turned to the source of any limitation on the legislative competence of the State Legislature. It clarified that the State Legislature possessed plenary authority to legislate on matters enumerated in Lists II and III of the Seventh Schedule of the Constitution. Such plenary power could be curtailed only by provisions of the Constitution itself, not by any promise or obligation undertaken by the Dominion Government, the Province of Bombay, or the State of Bombay. Under Article 246, the State Legislature was vested with the power to make laws on the subjects listed in those schedules, and, pursuant to Article 245(1), that power was subject to the constitutional framework.

The Court pointed out that the Constitution itself delineates the possible fetters on legislative power, citing examples such as Article 303 and Article 286(2). However, until the Court determines that the Constitution expressly prohibits legislation on a particular subject—either absolutely or conditionally—the State Legislature’s authority to legislate within its competence remains full and unqualified. When a proposed law falls within an entry in Lists II or III, any limitation on the Legislature’s power must be found in the Constitution itself. In the absence of such a constitutional restriction, the Court concluded that the State Legislature retained full competence to enact the impugned Act, even if the enactment conflicted with the guarantee or obligations previously undertaken by the Dominion Government or the Province of Bombay.

In this case the Court noted that the guarantee set out in clause 5 of the letters of guarantee, together with any obligations undertaken by the Dominion Government, the Province of Bombay or even the State of Bombay, did not create a barrier to the State Legislature’s power to pass the impugned Act. The Petitioners, who claimed a legitimate grievance arising from the loss of their ownership rights in the jagir lands and alleged discrimination against the States and their subjects, were told that the Court could not grant relief because the State Legislature was fully competent to enact the legislation and was not restrained by the terms of clause 5 of the letters of guarantee. The Court further explained that the provisions of article 294(b) of the Constitution, which are said to have transferred the obligations of the Provincial Government to the State of Bombay, did not, by effecting a transfer of the obligation taken on by the Dominion Government in clause 5, impose any fetter or limitation on the legislative competence of the State Legislature to legislate on any matter listed in Lists II and III of the Seventh Schedule. Consequently, any remedy the Petitioners might seek would have to be pursued elsewhere and not in this Forum. The Court then referred to the decision of the learned Judges of the Federal Court in a similar dispute raised by the Taluqdars of Oudh against the United Provinces Tenancy Act XVII of 1939, as reported in Thakur Jagannath Baksh Singh v. The United Provinces(1) at page 87. That judgment observed that the claim being advanced amounted to a denial that any Indian Legislature possessed the authority to alter arrangements embodied in sanads dated nearly a century earlier, even implying that Parliament itself might be denied that power. The Federal Court expressed hope that no responsible Legislature or Government would disregard solemn pledges of their predecessors, but affirmed that readjustment of rights and duties is an inevitable function of a modern State’s Legislature, required where circumstances demand justice to all parties. The Court added that it was not the role of the Court to assess the wisdom or broader justice of legislative acts, but only to determine whether they had been validly enacted. Those observations were quoted with approval by the Privy Council in Thakur Jagannath Baksh Singh v. The United Provinces(1) at page 122. The Court reiterated that it was not concerned with the policy motives behind the State Legislature’s enactment of the impugned Act for the abolition of jagirs, but solely with the question of whether the Act had been validly enacted. No argument was presented that would enable the Court to hold the impugned Act to be ultra vires the State Legislature; the only ground of attack alleged was that the Act contravened the guarantee contained in clause 5 of the letters of guarantee.

The Court noted that the petitioners could not rely on the argument that the letters of guarantee provided them any benefit. Substantial submissions had been made before the Court in which counsel compared the provisions of the various statutes enacted by the Bombay State Legislature between 1949 and 1953 concerning the abolition of the different tenures that existed in the State of Bombay with the provisions of the impugned Act. The purpose of that comparison was to demonstrate that the provisions of the impugned Act were discriminatory against the States (1) 1943 F.C.R. 72. (2) 1946 F.C.R. III. and their subjects within the meaning of clause five of the letters of guarantee. The Court, however, found it unnecessary to refer in detail to those arguments because it had already concluded, as set out earlier, that the impugned Act was intra vires the legislative competence of the Bombay State Legislature and that the Legislature was fully empowered to enact such a provision.

The Court further explained that even assuming, for the sake of argument, that the provisions of the impugned Act were confiscatory and discriminatory as alleged, the jagirs owned by the petitioners – except for the petitioner in Petition No. 364 of 1954 – were estates that fell within the definition of “estate” contained in Article 31-A(2)(a) of the Constitution. Consequently, even if the impugned Act authorised the acquisition of those estates or any rights subsisting therein, or provided for the extinguishment or modification of such rights, the Act could not be struck down as void on the ground that it was inconsistent with, or that it removed or abridged, any of the fundamental rights guaranteed by Part III of the Constitution. Accordingly, a challenge on the basis that the impugned Act infringed the petitioners’ fundamental rights under Article 14, Article 19(1)(f) or Article 31(2) of the Constitution was not available to them.

The Court observed that if the petitioners’ grievance was that the impugned Act created discrimination in contravention of clause five of the letters of guarantee, then the dispute would arise under the letters of guarantee themselves. In that circumstance, Article 363 would bar the Court’s jurisdiction, placing the matter beyond its reach. Accordingly, the petitions filed by the petitioners, save for Petition No. 364 of 1954 which was to be considered immediately thereafter, failed to disclose a viable cause of action and were liable to be dismissed.

With respect to the additional grounds raised in Petition No. 364 of 1954, the Court noted that the petitioner claimed ownership of sixty villages situated in the Putta or territory of Moti Moree, which had formerly formed part of the State of Idar. He asserted that he held the position of Bhumia or under-lord and contended that his possession did not fall within the definition of “jagir” as provided in the impugned Act. To support this contention, the petitioner traced the history of Moti Moree back to the year 1250 A.D., and more specifically to the year 1800 A.D., when the then Chieftain of Moti Moree entered into a treaty with Maharaja Zalimsinh of Modasa. The petitioner's narrative concerning that treaty formed the basis of his claim that his estate should be exempt from the operation of the impugned Act.

The Court recorded that, in return for an annual payment of Rs 361, the ruler Zalimsinh had agreed in the year 1800 to protect the territory of Moti Moree from attacks by the neighboring State of Doongarpur. The petitioner pointed out that after this agreement the nearby town of Modasa was incorporated into the Taluka of Amnagar in 1821, and that around 1849 Modasa reverted to the jurisdiction of Idar State. He further explained that Idar State continued to exercise authority over the area until Idar merged with the Province of Bombay in 1948.

According to the petitioner, he and his ancestors had exercised full sovereign authority over Moti Moree continuously from the treaty of 1800, and that their only obligation had been the payment of the Rs 361 each year for protection. He asserted that the family had also possessed the rights of excise, customs and revenue, and that they paid no revenue to the State of Idar. The petitioner claimed that they retained ownership and control of all lands, forests, minerals, river beds, village sites and other natural resources in the area. He further contended that when the ruler of Idar sought to impose a uniform customs levy throughout his dominion, the ruler was obliged to compensate the petitioner for the loss of his sovereign privileges. The petitioner's evidence showed that the former State of Idar, and subsequently the Government of the State of Bombay, had paid him annual sums of Rs 457 for customs, Rs 40 for opium and Rs 7 for salt as compensation for those rights. These amounts were set off against the annual Rs 361 protection payment that he made to the ruler.

The Court noted that the rights recognized by the former State of Idar and later by the State of Bombay had elevated the petitioner to the status of a Thakur, or under-lord, of Moti Moree. Consequently, the petitioner argued that his estate was not a “jagir” as defined in the impugned Act. The Court also referred to the Bombay Gazetteer, Volume 5 (1880), page 398, which described the estate of Mori (Meghraj) as belonging to the original landlords known as Bhumias, also described as petty chiefs and under-lords, and to page 409, which identified the under-lords (Bhumias) as early chiefs who had settled in Idar at least as early as the Rathod conquest of about 1250.

The State of Bombay disputed the petitioner’s allegations. It maintained that in 1891 the former State of Idar had conferred upon the Thakore of Moti Moree the powers of a Third Class Magistrate as a gratuitous act. The State further asserted that in 1902 the administration of the estate had been taken over by the former State of Idar, appointing a Kamdar named Mathurlaji as Japtidar, and that in 1910 the management had been restored as a special case, with the arrears of Nazrana ordered to be recovered in installments by the former State of Idar. The State also presented several documents in which Moti Moree was described as a “Bhomia Jagir” within the definition of “jagir” given in the impugned Act, and noted that the sum of Rs 361 continued to be paid regularly even after the merger, described as “Kichari hak”.

The petitioners argued that the land known as Bhomia Jagir fell within the definition of “Jagir” as set out in the impugned Act, and that a payment of Rs 361 continued to be made after the merger of the estate, described as “Kichari hak”. On that basis they asserted that the Thakore of Moti Moree, who was the petitioner, was a jagirdar and that Moti Moree itself qualified as a jagir within the meaning of the statute. Both the petitioners’ statements and the State’s counter-statements, however, did not resolve the issue. The Court observed that in order to remove Moti Moree and the petitioner from the operation of the impugned Act, the petitioner must satisfactorily demonstrate that Moti Moree is not a jagir as defined in that Act.

The Court noted that although the petitioner’s allegations made it appear probable that Moti Moree was not held by the petitioner or his ancestors under a grant, nor was it recognised as a grant by the ruler of the former State of Idar, this probability alone was insufficient to grant the relief sought. The matter required a full determination by a competent court after a thorough examination of the evidence presented by both sides. The learned Attorney-General, appearing for the State of Bombay, submitted that the question should be investigated by an appropriate tribunal and that the petitioner ought to be directed to institute a civil suit to establish his rights. Consequently, the Court decided to adjourn Petition No 364 of 1954 until after the disposal of such a civil suit, which should seek a declaration that Moti Moree is not a jagir under the definition in the impugned Act and any consequential relief. The petitioner’s counsel indicated that a formal notice under Section 80 of the Civil Procedure Code had already been served on the State of Bombay. The Court therefore ordered the petitioner to file the required suit within three months from the date of the order and directed that the present petition remain adjourned until after the hearing and final disposal of that suit. The stay previously granted in this petition was to continue in the interim. The Attorney-General also undertook not to take any action against the petitioner during this period. Petitions numbered 337 to 349, 365, 366, 481 and 690 of 1954 were dismissed. Petition No 364 of 1954 was adjourned sine die pending the outcome of the civil suit. If the petitioner fails to file the suit within the stipulated time, the petition will be dismissed. Each party was ordered to bear its own costs.