The State of Saurashtra vs Memon Haji Ismail Haji

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 185 of 1955

Decision Date: 4 August 1959

Coram: M. Hidayatullah, Natwarlal H. Bhagwati

In this case the Supreme Court of India delivered its judgment on 4 August 1959. The petition was brought by the State of Saurashtra against Memon Haji Ismail Haji. The judgment was authored by Justice M. Hidayatullah and the bench consisted of Justices M. Hidayatullah, Natwarlal H. Bhagwati and the Chief Justice Sudhi Ranjan. The case is reported in 1959 AIR 1383 and 1960 SCR (1) 537. The matter concerned an act of State involving the taking over of the administration of Junagadh State by the Dominion of India and the question of whether a resumption of property by the Administrator before the completion of that act could be challenged in municipal courts.

The suit from which the present appeal arose had originally been instituted by the respondent against the State of Junagadh. It was later substituted by the State of Saurashtra, and the respondent sought a declaration that the Administrator’s order dated 1 October 1948, which resumed the immovable property that formed the subject of the suit, was illegal, unjust and contrary to the principles of natural justice. The civil judge decreed in favour of the respondent and the decree was affirmed by the High Court on appeal. The sole issue for determination before this Court was whether the resumption by the Administrator constituted an act of State performed on behalf of the Government of India, involving a person who at that time was an alien outside the State, and therefore not justiciable in the municipal courts.

The Court noted that with the passage of the Indian Independence Act 1947 and the lapse of paramountcy by operation of Section 7 of that Act, the Nawab of Junagadh became sovereign. Instead of acceding to the newly formed Dominion, the Nawab departed for Pakistan. According to the White Paper on Indian States, the Government of India assumed the administration of Junagadh on 9 November 1947 at the request of the Nawab’s Council, although formal annexation did not occur until 2 January 1949. During the intervening period the Administrator continued to maintain law and order and to carry out administrative functions.

The Court held that there could be no doubt that the Dominion’s assumption of administration of Junagadh was a pure act of State. The resumption order of 1 October 1948 had been made by the Administrator before the act of assuming administration was completed and at a time when the people of Junagadh, including the respondent, were considered aliens outside the State. Consequently, even if the resumption was arbitrary, it remained an act of State on behalf of the Government of India and therefore was not justiciable in municipal courts. The appropriate test, the Court observed, is whether the State or its agents purported to act “catastrophically” or within the ordinary course of law. The Court referred to earlier authorities including Salaman v. Secretary of State for India (1906) 1 K.B. 613, Johnstone v. Pedlar (1921) 2 A.C. 262, Secretary of State in Council for India v. Kamachee Boye Sahaba (1859) 13 Moore P.C. 22, Vaje Singh Ji Joravar Singh & Ors. v. Secretary of State for India (1924) L.R. 51 I.A. 357 and Dalmia Dadri Cement Co. v. Commissioner of Income-Tax, [1959] S.C.R. 729, among others, to illustrate the principle that an act of State is characterized by the sovereign’s arbitrary exercise of power beyond the constraints of municipal law.

The Court referred to the decision reported in Income-tax, [1959] S.C.R. 729, and also considered the authority Forester and Others v. Secretary of State for India, 18 W.R. 349 P.C. It explained that the essence of an act of State is the arbitrary exercise of sovereign power on principles that are either different from or superior to municipal law. The Court observed that although a sovereign may permit the inhabitants to continue observing their former laws and customs, the sovereign itself is not bound by those rules unless it chooses to act within them; such a choice would bring the act of State to an end. The judgment cited Campbell v. Hall, 1 Comp. 204; 98 E.R. 1045, Ruding v. Smith, 2 Hag. Con. 384; 161 E.R. 774 and E.I. Co. v. Syed Ali, 7 M.I.A. 555 as authorities supporting this doctrine.

The appeal was filed as Civil Appeal No. 185 of 1955 under the Civil Appellate Jurisdiction. It challenged the judgment and decree dated 19 February 1953 issued by the former Saurashtra High Court in Civil First Appeal No. 16 of 1952, which itself arose from the decree dated 15 December 1951 of the Civil Judge, Senior Division, Junagadh, in Civil Suit No. 470 of 1950. The appellant was the State of Saurashtra, which had substituted for the State of Junagadh, the original defendant. The respondent, Memon Haji Ismail Haji Valimahomed of Junagadh, had originally sued two defendants—the State of Junagadh and Jamadar Abu Umar Bin Abdulla Abu Panch—seeking a declaration that Secretariat Order No. 2/3289 dated 1 October 1948 was illegal, unjust and contrary to all canons of natural justice. He also claimed an alternative remedy that the second defendant return Rs 30,000 together with Rs 541-2-0 as consideration and expenses for a transfer of immovable property resumed under the order. The Civil Judge, to whom the case was transferred after integration, decreed in favour of the respondent, and the High Court confirmed that decree. During the proceedings a third defendant, the Mamlatdar Viswadar, was impleaded because the property of Abu Panch had passed into the administration of the Saurashtra Government under the so-called Gharkhod Ordinance. Ultimately the two defendants other than the State of Saurashtra were discharged, and the suit continued only against the State of Saurashtra. The appeal, accompanied by a certificate from the former High Court of Saurashtra under Article 133 of the Constitution read with Sections 109 and 110 of the Code of Civil Procedure, was argued before the Court. Counsel for the appellant included the Solicitor-General of India and other legal representatives, while the respondent was represented by counsel and interveners were also present. The judgment was delivered on 4 August 1959 by Justice Hidayatullah.

In this case, the Court noted that the suit sought a declaration that the Secretariat Order No 2/3289 dated 1 October 1948 was illegal, unjust and contrary to the principles of natural justice, and that the State of Saurashtra was the only defendant against whom relief was claimed. The Court then set out the factual background of the dispute. According to the plaintiff’s evidence, a person named Ameer Ismail Khokhar Kayam Khokhar purchased a plot of land located in the town of Junagadh from the State of Junagadh and subsequently constructed a house on that land. A Rukka, which is exhibited as Exhibit No 34, was issued to him on 2 December 1939. In the year 1941, the Nawab of Junagadh acquired the same property from Khokhar; however, the deed evidencing that purchase was not produced before the Court. On 17 November 1941, the Nawab effected a gift of the property to Abu Panch. Abu Panch, in turn, conveyed the property to the respondent on 24 November 1943 for a consideration of Rs 30,000. The original gift deed, dated 18 May 1942 and also placed on the plaintiff’s record, contained no provision granting Abu Panch authority to transfer the house; the document merely stated that the house was given to him for “use and enjoyment.” On 12 February 1944, the Nawab issued an amendment to the earlier Palace Order, expressly enabling Abu Panch to sell the house. The amendment read: “…you are hereby granted from the date of gift i.e. 17-11-41 the title to sell the house as defined in this Rukka and as per directions received.” This later decree, sometimes referred to as an additional Shera, was apparently intended to validate the earlier sale effected by Abu Panch. The factual scenario then shifted with the advent of Indian independence. The political situation in Junagadh deteriorated, and the State Council appealed to the Government of India for assistance. In response, the Government of India instructed the Regional Commissioner for the Western India and Gujarat States Region to assume administrative control of Junagadh. Accordingly, on 9 November 1947 the Regional Commissioner issued a proclamation, which was published in the official gazette Destural Amal Sarkar Junagadh on 10 November 1947, stating that he had taken charge of the administration of Junagadh State at 18:00 hours under the orders of the Government of India. The short proclamation was quoted in the record as follows: “N. M. Buch, Barrister-at-law O.B.E., I.C.S., Regional Commissioner, Western India & Gujarat States Region, have this day assumed charge of the administration of the Junagadh State at 18.00 Hours under the orders of the Government of India, at the request of the Junagadh State Council supported by the people of Junagadh in view of the complete breakdown of administration resulting in chaotic condition in the State. The first task of myself and my officers will be to ensure complete peace and order throughout Junagadh State territory, and to give even justice to all communities. The majority community of the State has a special responsibility for the protection of the minorities. All the Junagadh State Officials and subjects are, therefore, invited to offer unconditional and loyal support and cooperation to the new”

The proclamation issued by the Regional Commissioner on 9 November 1947 warned that any lack of cooperation or disloyalty would be dealt with firmly in order to preserve peace and order in the State. The document, signed by N. M. Buch, Regional Commissioner for Western India and Gujarat States Region, declared that the State administration had been taken over at the request of the Junagadh State Council and with the support of the people, because the previous administration had collapsed, creating chaos. The proclamation further asserted that the majority community bore a special responsibility to protect minorities, and it called upon all officials and subjects of Junagadh to give unconditional and loyal support to the new administration.

Four days later, on 14 November 1947, the Regional Commissioner issued Notification No 6 of 1947 appointing Shri S. W. Shiveshwarkar, M.B.E., I.C.S., as Administrator of Junagadh State, replacing Rao Saheb T. L. Shah, B.A. The notification specified that, under the Commissioner’s general guidance and supervision, the Administrator would have full authority to issue orders and take any action required to manage the affairs of Junagadh State. On 13 October 1948, Administrator Shiveshwarkar issued Secretariat Order No R/3289 of 1948, which became the subject of the present suit. The order stated that a parcel of land measuring 1,846-9-12 square yards, together with a building located outside Majevdi Gate opposite a workshop, had been given as a gift by way of Inam to Abu Umar Bin Abdulla Abu Panch of Junagadh under Private Secretary’s Office No P158 dated 17 November 1941. The order declared that the donee had no right to sell the land and building under Rukka No 32/98, and that the vendor, Sheth Haji Ismail Haji Valimahomed, had purchased the property with full knowledge of this restriction. Because the grant was characterized as an unauthorized and frivolous gift of public property, the order cancelled the gift and held that the subsequent purchaser acquired no right, title, or interest beyond that of the original donee. Consequently, the order directed that the land and its structures be resumed immediately by the State as State property. The order was signed by S. W. Shiveshwarkar, Administrator, President’s Executive Council, Junagadh State.

Following the issuance of the order, the Administrator took possession of the property. The plaintiff-respondent, relying on section 423 of the Junagadh State Civil Procedure Code (which corresponds to section 80 of the Civil Procedure Code, 1908), served a notice and instituted a suit in the High Court of the State seeking a declaration that the Administrator’s order was invalid. The suit was later transferred to the Civil Judge, Senior Division, Junagadh, who rendered a decree on 15 December 1951 granting the plaintiff’s declaration. The judge held that the Administrator’s order was illegal, inoperative, and contrary to all principles of natural justice. The State of Saurashtra appealed the decision, contending that the actions of Shri Shiveshwarkar, who acted as a delegate of the Government of India appointed under section 3(2) of the Extra-Provincial Jurisdiction Act, were acts of State and therefore not subject to judicial review. The appeal further argued that the civil court’s jurisdiction was barred by section 5 of the Extra-Provincial Jurisdiction Act and by section 4(2) of Ordinance No 72 of 1949.

In the appeal, the Court noted that the grant dated 1949 could be resumed at any time by the Ruler, and that Shri Shiveshwarkar, as the successor, also possessed the power to resume it. The High Court of Saurashtra examined a minute prepared by Sir Raymond West, reproduced in Colonel Webb’s Political Practice, which explained the rights of Rulers to resume grants made by them and concluded that such resumption was not permissible by the Rulers. The High Court further held that the action in question could not be characterized as an act of State and that the jurisdiction of the courts was not excluded by section 5 of the Extra-Provincial Jurisdiction Act or by section 4(2) of Ordinance No 72 of 1949. In the present appeal, the Solicitor-General for the State of Saurashtra withdrew three arguments that had been raised in the lower courts. He affirmed that the State was not relying on Shri Shiveshwarkar’s authority as successor to the Ruler of Junagadh to resume the property, and consequently the reference to Sir Raymond West’s minute was unnecessary. He also declared that the State Government did not attempt to justify the resumption nor to challenge the court’s jurisdiction under the Extra-Provincial Jurisdiction Act and the aforementioned ordinance. Instead, he contended that Shri Shiveshwarkar’s act was an act of State performed on behalf of the Government of India, and therefore it was not justiciable before municipal courts. The Court then discussed the expression “act of State,” observing that it possesses several meanings. In France and certain continental jurisdictions, acts of the State and its officers acting in an official capacity are not subject to ordinary courts or ordinary law, based on the principle that the State, as the source of all law, cannot be subordinate to that law. By contrast, the English-derived legal system of this country does not accept that principle, and except for a few special categories, all official acts must be justified by a legal foundation. Accordingly, an “act of State” in this jurisdiction does not encompass every governmental act as it does in French or continental systems; it refers only to a limited class of acts. The term may also denote statutory immunities, special prerogatives of the sovereign, or acts that, by virtue of their official character, are shielded from judicial inquiry or are binding on the courts through an official declaration. The defence, however, was founded on an act of State involving an alien outside the State, an act described by Lord Fletcher Moulton, L.J., in Salman v Secretary of State for India (1) as “a catastrophic change constituting a”.

The Court described the concept as a “new departure.” It explained that this phrase refers to a sovereign act that is neither grounded in law nor pretends to be lawful. The Court gave examples of such “catastrophic changes,” including declarations of war, treaties, dealings with foreign countries and actions directed against aliens outside the State. It then stated that Municipal Courts cannot pass judgment on the desirability or justice of those actions. The Court further observed that, even in situations of civil disturbance, war or peace, the State may not act catastrophically beyond ordinary law when the act affects its own subjects or a friendly alien within the State, because legal remedies are available for wrongful acts. In support of that observation, the Court referred to Johnstone v. Pedlar (2). Nevertheless, the Court noted that there exists immunity from judicial interference for acts performed by the State against an alien who is outside the State. Consequently, the decisive question is whether the State or its agents claimed to act “catastrophically” or whether they acted within the ordinary course of law.

This question was expressly raised in Secretary of State in Council for India v. Kamachee Boye Sahaba (3) when Lord Kingsdown asked, “What was the real character of the act done in this case? Was it a seizure by arbitrary power on behalf of the Crown of Great Britain of the dominions and property of a neighbouring State, an act that cannot be justified on grounds of Municipal Law? Or was it, in whole or in part, a possession taken by the Crown under colour of legal title of the property of the late Raja of Tanjore, held in trust for those who, by law, might be entitled to it on the death of the last possessor? If it were the latter, the defence set up, of course, has no foundation.” The Court then recounted that the Supreme Court of Madras was moved by a bill to claim certain properties seized on the death of Raja Sivaji of Tanjore without heirs. The claim, referenced as (1) (1906) i K.B. 6I3 at 640, (2) (192I) 2 A.C. 262, (1859) 13 Moore P. C. 22, was accepted by the Supreme Court of Madras but was rejected by the Privy Council. Lord Kingsdown observed, “The general principle of law could not, with any colour of reason, be disputed. The transactions of independent States between each other are governed by other laws than those which Municipal Courts administer. Such Courts have neither the means of deciding what is right nor the power of enforcing any decision which they make.” After concluding that an act of State had occurred, Lord Kingsdown added, “Of the propriety or justice of that act, neither the Court below nor the Judicial Committee have the means of forming, or the right of expressing, any opinion. It may have been just or unjust, politic or impolitic, beneficial or injurious to those whose interests are affected. These are considerations into which their Lordships cannot enter. It is sufficient to say that, even if a wrong has been done, it is a wrong.”

The Court observed that no municipal court of justice could provide a remedy for such an act. It noted that a similar view had been expressed in the decisions of Raja of Coory v. East India Company (1), Raja Saligram v. Secretary of State for India in Council (2), Sardar Bhagwan Singh v. Secretary of State (3) and Secretary of State v. Sardar Rustam Khan (4). The principle articulated in those cases has been extended to all territories newly acquired, whether by conquest, annexation, cession or any other mode of acquisition, and to the rights, contracts, concessions, immunities and privileges that had been created by the former paramount power. Those rights and privileges are held not to bind the succeeding sovereign power even when, prior to annexation, the two powers had agreed that they would be respected. Lord Dunedin, speaking for the Court in Vaje Singh Ji Joravar Singh & Others v. Secretary of State for India (5), summed up the law in the following words: “When a territory is acquired by a sovereign State for the first time that is an act of State. It (1) (1860) 29 Beav. 300. (2) (1872) L.R. Ind. App. Suppl. Vol. 119. (3) (1874) L.R. 2 A.I. Cas. 38. (4) (1941) L.R. 68 I.A. 109. (5) (1924) L.R. 511 I.A. 357, 360, matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognized ruler. In all cases the result is the same. Any inhabitant of the territory can make good in municipal courts established by the new sovereign any such rights, as that sovereign has, through his officers, recognized. 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 those inhabitants a title to enforce those stipulations in municipal courts. The right to enforce remains only with the high contracting parties.”

The Court further recorded that the cases cited above, together with decisions such as Cook v. Sprigg (1) and Hoani Te Heuheu Tukino v. Aotea District Maori Land Board (9), were approved and applied by this Court in Dalmia Dadri Cement Co. v. Commissioner of Income-tax (3). In that matter an agreement with the ex-Ruler of Jhind for tax concessions was held not to bind the income-tax authorities after the merger of the State with the Union of India, and the defence of an act of State was upheld. Justice Venkatarama Aiyar then observed: “When the sovereign of a State—meaning by that expression the authority in which the sovereignty of the State is vested—enacts a law which creates, declares or recognizes rights in the subjects, any infraction of those rights would be actionable in the courts of that State even when the infraction is by the State acting through its officers. It would be no defence to that action that the act complained of is an act of State, because as between the sovereign and his subjects there is no such thing as an act of State, and it is incumbent on his officers to show that their action which is under challenge is within the authority conferred on them by law.”

The Court observed that a routine administrative measure cannot be characterised as an act of State; therefore, officials must prove that the disputed action is exercised within legal authority. Completely different considerations arise, however, when the sovereign’s act does not relate to the rights of its own subjects but to the acquisition of territory that belongs to another sovereign. Such a matter is a dispute between independent sovereigns and must be settled, not by the municipal law of either state, but through diplomatic channels, and, failing that, by the use of force. The Court described this as a pure act of State whose character persists until the acquisition is completed by conquest or cession. Regarding the status of residents of territories that are acquired, the Court held that until the acquisition is final, those residents remain subjects of the former sovereign; only after completion do they become subjects of the new sovereign. It is well-settled that, upon such transition, the residents do not retain the rights they possessed under the former sovereign. As subjects of the new sovereign, they are entitled only to rights that the new sovereign grants or recognises, as reflected in the authorities Secretary of State for India v. Bai Rajbai, Vajesingji Joravar Singhji and Others v. Secretary of State, Secretary of State v. Sardar Rustam Khan and Asrar Ahmed v. Durgah Committee, Ajmer. Consequently, the legal process of acquiring new territory constitutes a continuous act of State that terminates only when the new sovereign assumes de jure sovereign powers over the land, and only thereafter do rights accrue to the inhabitants as subjects of that sovereign. In other words, citizenship for residents of newly acquired territories commences only after the act of State ends; the two cannot coexist. Accordingly, any act or declaration made by the new sovereign before the assumption of sovereign powers cannot, with respect to those residents, be treated as a law conferring enforceable rights in its courts. The Court noted, however, that if the new sovereign’s action is intended to be within ordinary law and not a concomitant act of State, a different analysis applies. As an illustration, the Court referred to Forester and Others v. Secretary of State for India, where one issue was whether an act of State had occurred—a question the courts were entitled to examine. The case held that the Begum’s estate, seized by the East India Company after her death, was not the result of an act of State but stemmed from a legal title.

In this case, the Court observed that the death of the Begum who held a jagir did not render her a sovereign princess; rather, she was regarded merely as a Jaidadar. Consequently, the resumption of her jagir after her death was not characterised as an act of State but rather as an act carried out under a legal title. The Court explained that the government’s action in this matter was not an arbitrary seizure of territory that had formerly belonged to another sovereign State. Instead, it was the resumption of lands that had been held from the government under a specific tenure, and the resumption occurred because that tenure was allegedly determined to have ended. The possession was taken under the colour of legal title, and that title was the undisputed right of the sovereign authority to resume, retain, or assess to public revenue all lands within its territories when the tenure under which they had been held rent-free was determined to have ended. The Court further noted that if, by virtue of the continuation of the tenure or any other cause, a claim was made that detracted from this governmental title, such a claim – like any other claim arising between the government and its subjects – would, on its face, be cognisable by the Municipal Courts of India.

From these precedents, the Court held that an act of State constituted an exercise of sovereign power directed against an alien and was neither intended nor purporting to be based on legal foundations. A defence that relied upon this concept did not attempt to justify the action by reference to law; instead, it questioned the very jurisdiction of the courts to pass upon the legality or justice of the action. The Court then considered whether the factual circumstances necessary to sustain such a defence existed in the present case. It was necessary to determine the status of the respondent on the date the impugned order was issued against him.

The Court recalled that the position of the former rulers of the erstwhile Indian States had been examined by this Court on several occasions and therefore required only brief reference. After the lapse of British paramountcy by operation of section 7 of the Indian Independence Act, 1947, the Nawab of Junagadh became a sovereign ruler, yet he did not accede to the newly formed Dominion of India by executing an Instrument of Accession, unlike the other rulers in Saurashtra. He subsequently left the country, creating a unique situation for Junagadh. The Court referred to the White Paper on Indian States, which has been commonly treated as a constitutional document, although without formal proof. The White Paper stated that after the Nawab departed for Pakistan, the administration of Junagadh was taken over by the Government of India on 9 November 1947 at the request of the Nawab’s council. The Court observed that this action enjoyed the fullest approval of the people of Junagadh, as evidenced by the referendum held in February 1948 in Junagadh and the adjoining smaller States, which showed an almost unanimous vote in favour of accession to India.

During the period when the Government of India administered Junagadh, the Court noted that an administrator appointed by the Government, assisted by three popular representatives, managed the State’s affairs. This factual background set the stage for the Court’s further analysis of the legal status of the respondent at the relevant time.

The State of India appointed an Administrator, who was assisted by three popularly elected representatives, to manage the affairs of Junagadh after the Nawab’s departure. In December 1948 the elected members of the people of Junagadh passed a resolution that the administration of their State should be transferred to the Government of Saurashtra and that Junagadh’s representatives should be allowed to sit in the Constituent Assembly of Saurashtra in order to draft a common Constitution for both Saurashtra and Junagadh. The same type of resolution was adopted by the representatives of the adjoining territories of Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh. To give effect to these resolutions, the Rulers of the Kathiawar States executed a Supplementary Covenant, identified as Appendix XXXVI, which set out the terms of the transfer. Consequently, the Government of Saurashtra assumed control over Junagadh on 20 January 1949, and the Constitution of Saurashtra treated Junagadh together with the other incorporated States as integral parts of the new political entity. From this sequence it follows that, between 9 November 1947 and 20 January 1949, the Dominion of India did not formally annex Junagadh; instead the Central Government, acting through the Regional Commissioner for Western India and Gujarat States, maintained law and order and oversaw the administration pending the eventual transfer.

On 16 November 1947 the Administrator issued Notification No 9 of 1947, which cancelled Junagadh State Order No 568 of 1944, dissolved the State Council created by that order and directed that any legal reference previously required to be made to the Council should now be made to the Administrator, thereby vesting in the Administrator all powers formerly exercised by the Council and its members. From that moment the administration of Junagadh operated under the authority of the Administrator as the Dominion’s agent. Although the people of Junagadh expressed a near-unanimous desire for union with India in the February 1948 referendum, they did not acquire Dominion citizenship until a later date and remained, for that interim period, legally classified as aliens. The assumption of administration by the Dominion therefore constituted a pure act of State, and the Administrator’s actions took place before the act of State was concluded. The respondent argued that the doctrine of an act of State was inapplicable because the State Council continued to exist, had invited the Dominion’s intervention, and because local statutes such as the Saurashtra Civil Procedure Code were amended by a notification dated 7 July 1948, indicating that local laws remained in force and the Administrator was subject to them in private property matters under the Regional Commissioner’s supervision. The Court found that these contentions did not address the true nature of the act of State that had occurred.

The Court explained that the core of an act of State is the exercise of sovereign power, which is performed arbitrarily and on principles that lie outside or above the ordinary municipal law. It further held that even when a sovereign permits the people to continue observing their traditional laws and customs, the sovereign is not bound by those laws; any rights that arise under such local laws exist only at the sovereign’s pleasure. The exclusive defence of an act of State disappears only when the sovereign can be said to have acted within the established legal framework; until that point, the government may be influenced by existing statutes, rights and obligations, but it is not governed or constrained by them. The Court referred to the authority of Campbell v. Hall (1) and Ruding v. Smith (2), both cases involving conquest, as well as E.I. Co. v. Syed Ali (3). It also cited the discussion in Mayne’s Criminal Law of India, fourth edition, volume II, pages 119-120, where the principle is summarised. The Court found no evidence that the Dominion had either expressly or tacitly recognised the old rights, and it observed that the burden of proving such recognition rested on the respondent, as indicated in Secretary of State for India v. Bai Rajbai (4) and Vajesingh’s case (5). In this perspective, the Court considered it unnecessary to decide whether the former Nawab had the capacity to convey title to the donee in respect of the property. Likewise, an inquiry into the Nawab’s power to resume or derogate from his grants, and whether the Dominion Government or its agents inherited identical powers, was deemed irrelevant. Because the Dominion Government’s action constituted an act of State, the Administrator’s act, however arbitrary, was not subject to judicial review in the ordinary courts, and consequently the suit was not well founded. Accordingly, the appeal was allowed and the respondent’s suit was dismissed with costs. Appeal allowed. (1) I COMP. 204; 98 E.R. 1045. (2) 2 Hag. Con. 384; 161 E.R. 774. (3) 7 M.I.A. 555 at 578. (4) L.R. 42 I.A. 229. (5) (1924) L.R. 51 J.A. 357, 360.