Madhaorao Phalke vs The State Of Madhya Bharat

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

Court: supreme-court

Case Number: Civil Appeal No. 84 of 1954

Decision Date: 3 October 1960

Coram: P.B. Gajendragadkar, Bhuvneshwar P. Sinha, J.L. Kapur, K.N. Wanchoo

Madhaorao Phalke filed a petition against the State of Madhya Bharat, and the case was decided on the 3rd of October, 1960, by the Supreme Court of India. The judgment was authored by Justice P. B. Gajendragadkar, who was joined on the bench by Justice Bhuvneshwar P. Sinha, Justice J. L. Kapur and Justice K. N. Wanchoo. The citation of the decision appears as 1961 AIR 298 and 1961 SCR (1) 957. The judgment is also referenced in various citator entries, including R 1962 SC 141 (7), R 1962 SC 1288 (8, 23), RF 1963 SC 332 (11), D 1963 SC 953 (12), R 1963 SC 1638 (32), D 1964 SC 888 (5), R 1964 SC 1043 (56, 96, 130, 132, 160), R 1964 SC 1793 (11, 12, 13), R 1964 SC 1903 (18), R 1966 SC 704 (4), RF 1968 SC 1053 (2), R 1971 SC 530 (54, 329), RF 1975 SC 2299 (581), RF 1977 SC 1361 (192) and D 1987 SC 82 (11). The matter involved the statutory framework governing a hereditary military pension, known as Bachat, which had been guaranteed by the Kalambandis issued by the Rulers of Gwalior. The questions presented concerned whether such Kalambandis could be treated as existing law, and whether the pension could be terminated by a subsequent executive order of the State of Madhya Bharat. The relevant constitutional provision was Article 372 of the Constitution of India.

The appellant, Madhaorao Phalke, was the beneficiary of a hereditary military pension called Bachat that had been granted by the Rulers of Gwalior to his ancestors in recognition of their military service. The right to receive this pension was affirmed by two Kalambandis issued in 1912 and 1935 by those Rulers. When the princely state of Gwalior merged with Indore and Malwa in 1948 to form a new political entity, Section 4 of Act No. 1 of 1948 provided for the continuance of all laws, ordinances, rules and regulations that possessed the force of law in the former states. After the Constitution came into force and the State of Madhya Bharat was created, the State Government – which remained responsible for payment of the pension – issued an executive order that terminated the appellant’s right to the pension. The appellant challenged this order before the High Court under Article 226 of the Constitution, arguing that a right already recognized by the statutory Kalambandis of the former State of Gwalior could not be extinguished by a mere executive order. The Full Bench of the High Court decided against the appellant. The Supreme Court was therefore called upon to determine whether the Kalambandis of 1912 and 1935 qualified as “existing law” within the meaning of Article 372. The Court held that the answer was affirmative, emphasizing that no distinction could be drawn between an executive order and a legislative command issued by an absolute monarch such as the Rulers of Gwalior, because both possessed the same force of law and governed the rights of subjects. The Court referred to the earlier authorities of Ameer‑un‑Nissa Begum v. Mahboob Begum, AIR 955 SC 352 and Director of Endowments, Government of Hyderabad v. Akram Ali, AIR 1956 SC 60. Accordingly, even if the Kalambandis were not technically a “qanun” or law, they nonetheless functioned as orders or regulations having the force of law at the relevant time, and therefore qualified as existing law under Article 372.

The Court noted that the Kalambandis, which possessed the force of law in the State at the relevant time, qualified as existing law within the meaning of Article 372 of the Constitution. It cited the decision in Edward Mills Co., Ltd., Beawar v. State of Ajmer, reported in the 1955 volume of the Supreme Court Reports at page 735, as authority for this proposition. The Court examined the substance of the two Kalambandis and observed that their provisions could not be characterised merely as administrative orders; if they were not statutes, they nonetheless functioned as rules and regulations that carried the force of law.

The judgment concerned a civil appeal filed in the appellate jurisdiction of the Supreme Court. The appeal, numbered 84 of 1954, arose from the judgment and order dated 1 September 1954 of the former Madhya Bharat High Court in Civil Miscellaneous Case No. 11 of 1952. Counsel for the appellant included B. Sen, P. V. Sahasrabudhe, B. K. B. Naidu and I. N. Shroff. Counsel for the respondents comprised the Advocate‑General for the State of Madhya Pradesh, together with H. J. Umrigar and R. H. Dhebar. The judgment was delivered on 3 October 1960 by Justice Gajendergankar.

The principal question of law that the Court was called upon to determine was whether the Kalambandis, under which the appellant’s right to receive a monthly allowance of twenty‑one rupees and eight annas as Bachat (balance), was guaranteed, constituted an existing law within the meaning of Article 372 of the Constitution. The appellant, Madhaorao Phalke, described himself as an Ekkan and asserted that, as such, he and his ancestors had been receiving the monthly payment from the State of Madhya Bharat. According to the appellant’s narrative, his ancestors had accompanied the Scindias from Maharashtra to Gwalior about two centuries earlier and had rendered military service in the conquest of Gwalior. In recognition of that service, the ancestors were granted a fixed monthly sum, a practice that had continued for several generations within the appellant’s family.

The appellant contended that the right to receive this amount had been recognised by the Rulers of Gwalior in several statutes, orders, rules or regulations that possessed the force of statutes, specifically referring to the Kalambandis of 1912 and 1935. On 18 April 1952, the Government of Madhya Bharat issued an executive order terminating the payment to the appellant. Consequently, the appellant instituted the present petition before the High Court of Madhya Bharat, naming the State of Madhya Bharat and its Revenue Department as respondents 1 and 2, respectively, and invoking Article 226 of the Constitution. In that petition, the appellant prayed for a writ of mandamus, or alternatively, an appropriate direction or order, directing the respondents to refrain from implementing the executive order.

The appellant challenged the executive order on two grounds. First, he argued that because his right to receive the specified amount had been statutorily recognised by the State of Gwalior, the respondent could not lawfully extinguish that right merely by an executive order. The Court recorded these submissions as the basis of the appellant’s claim.

In an alternative ground the appellant argued that the monthly payment he regularly received constituted a right of property to which he was legally entitled, and that, under Article 31 of the Constitution, he could not be deprived of that property without receiving appropriate compensation. The respondents rejected both of these contentions. Their position was that the sums paid to the appellant and to his ancestors were merely emoluments for past military service, and therefore did not create a proprietary interest; further, they maintained that the Kalambandis relied upon by the appellant did not qualify as a law existing under Article 372 of the Constitution. The record shows that, together with the appellant, ten additional individuals filed similar petitions seeking comparable writs or orders against the same respondents, and that each of those petitions was met with the same objections from the respondents. Consequently, all eleven petitions were consolidated for trial. The consolidated petitions were heard before a Full Bench of the Madhya Bharat High Court composed of Chief Justice Shinde, and Judges Dixit and Newaskar. The three judges unanimously concluded that the Kalambandis on which the petitioners based their claims were merely orders issued by the ruler in order to reorganise the administrative scheme, and that such orders did not rise to the level of law or regulation possessing the force of law. Judge Dixit provided a particular rationale for his view, observing that Gwalior possessed a well‑recognised law‑making machinery or custom, and that the Kalambandis in question failed to satisfy the formal requirements and solemnities prescribed for statutes; consequently they could not be treated as statutes. As a result of this unanimous finding, the High Court dismissed all of the petitions. After the dismissal, the appellant applied to the High Court for a certificate under Article 133(1)(c) of the Constitution, and he obtained such a certificate, which enabled him to bring the present appeal before this Court. When the appeal was heard by this Court on 31 March 1958, both parties agreed that, before the Court finally decided the important question of law, it would be advisable to permit the parties to adduce further evidence. The appellant consequently filed an application before this Court seeking leave to present additional evidence, and the respondents raised no substantial objection to that request. By mutual consent, the matter was therefore remitted to the Madhya Bharat High Court with a direction that the parties be allowed to introduce the additional evidence and that the High Court record its findings on the matter referred back to it in light of that new evidence. The specific issue that was referred back concerned whether, at the relevant time, the Kalambandis in question should be regarded as statutes or regulations carrying the force of law in the State of Gwalior, or whether they were merely administrative orders. Following the remand, the parties presented the additional evidence before the High Court, and the High Court proceeded to consider the issue accordingly.

The High Court recorded its finding on the issue that had been sent back to it. The judges Abdul Hakim Khan and Newaskar, JJ., decided in favour of the appellant and held that the Kalambandis under consideration were regulations that possessed the force of law in the State of Gwalior at the relevant time. In contrast, Justice Krishnan expressed a different opinion and arrived at the opposite conclusion. After the High Court entered its finding, the papers from the case were forwarded to this Court, and the present appeal now stands before us for a final determination. Consequently, we are required to answer the concise question of law that was set out at the beginning of this judgment. It is useful, at the outset, to sketch briefly the historical background that underlies the claim made by the appellant and the other petitioners in these proceedings. The appellant asserts that he belongs to the class known as an Ekkan. Historically, the Ekkans were a group of horsemen who served in the Peshwa’s Cavalry together with the Silledars. They were individual volunteers who supplied their own horses and equipment. The other petitioners claim to be Silledars, whose ancestors were members of the Maratha Cavalry. The Silledars, like the Ekkans, were troopers who provided their own horses and weapons, and they equipped and maintained bodies of troops at their own expense. They were also referred to as Paigadars. Later, an accounting was made of the expenses that an Ekkan was required to meet for the upkeep of his horse; from the total amount payable to him, these expenses were deducted, leaving a balance of twenty‑one rupees and eight annas, which was paid to him as the Bachat or balance. In broad terms, this summary reflects the position of the parties as pleaded in the present case. The question that now requires adjudication is whether the right to receive this balance is a statutory right—in other words, whether the Kalambandis that form the basis of that right were rules or regulations possessing the force of law in the State of Gwalior. The two Kalambandis involved were issued in the years 1912 A.D. and 1935 A.D., respectively. The first Kalambandi was promulgated by the Ruler Sir Madhavrao himself, whereas the second was issued by the Council that assumed the administration of the State after Sir Madhavrao’s death in 1925. It is a well‑known fact that the States of Gwalior, Indore and Malwa were integrated to form a Union in 1948. Following the creation of this Union, Act No. 1 of 1948 was enacted to take over the administration of the former covenanting States. Section 4 of that Act provided that the local laws of the former States would continue to apply, meaning that all laws, ordinances, rules, regulations and similar instruments that had the force of law in any of the covenanting States would remain in effect until they were lawfully repealed or amended.

Thus the statutes that were operative in the State of Gwalior remained in force after the Union was formed, and the appellant contended that the Kalambandis continued to operate under section four of the 1948 Act. On 19 September 1950 the Commissioner of Jagir Inams, Court of Wards, Madhya Bharat issued a notification stating that any questions of mutation, adoption and similar matters concerning the army personnel described in paragraph one would be dealt with by the Commissioner’s office, and that Bachat and other amounts payable to those personnel would be distributed by the same office. Consequently, the members of the army were instructed to present claims for payment of their Nemnook to the Commissioner’s office. After Madhya Bharat came into existence, the armed forces of the former covenanting States were merged and reorganised by the Government of India to align them with the country’s overall defence plans. The General Administration Report of Madhya Bharat records the manner in which this reorganisation was carried out. As a result of the reorganisation, the cost of hereditary military pensions known as Bachat for Silledars and Ekkans was adjudicated to be charged to the Muafi department of the Madhya Bharat Government, thereby obligating the Madhya Bharat Government to continue paying the amounts to the appellant on a month‑to‑month basis. Thereafter, respondent 1 issued the impugned order on 18 April 1952. Clauses one through four of that order provided for the continued payment to the persons named therein, whereas clause five declared that any distribution of amounts to Silledars and Ekkans not covered by clauses one to four would cease absolutely from 1 May 1952. That order is the subject of the present proceedings.

Before determining whether the Kalambandis constitute a law in force, it is useful to outline briefly the constitutional framework of the Government of Gwalior at the relevant time. In 1905 Sir Madhavrao Scindia created an advisory council called Majlis Khas, of which he himself was President and assumed the title Mir Majlis. Although the council was intended to act as a law‑making body, section five of the Quaid Majlis Khas expressly provided that the acceptance or rejection of any recommendation made by the majority of the council would be entirely at the President’s discretion. In 1916 a further body, Majlis Quanun, was established for the purpose of drafting laws for the State, and it included certain nominated public citizens. Section four‑a of the Quaid Majlis Quanun clarified that the body’s function was merely to advise His Highness on matters placed before it, and section four‑b left the final decision to the absolute discretion of His Highness. This structure shows that, despite Sir Madhavrao’s efforts to involve the public in governance, ultimate legislative authority remained vested in the Maharaja.

The Court explained that the governing charter gave His Highness complete discretion to either accept or reject the recommendations of the advisory body. In 1918 a Constitutional Manual was published which set out the duties of the members of the Ruler’s Cabinet, and at the same time the Majlis‑Am, designated as the House of the People, was created. This house was composed largely of members appointed by the ruler, although a few members were elected by recognised public bodies. Section 31(6) of the statute that established the Majlis‑Am required that the discussions and decisions of that body be finally transmitted to His Highness, and only the orders issued by Him could be implemented. The Court observed that, although Sir Madhavrao gradually introduced measures intended to involve the public in the administration of the State and founded institutions that resembled democratic bodies, he retained all sovereign powers for himself and did not transfer any of those powers to the newly created institutions. Consequently, despite the existence of these bodies, the Maharaja remained an absolute monarch who possessed the ultimate authority over legislation, execution of laws and adjudication of disputes. The Court then considered whether orders issued by such an absolute monarch should be regarded as statutes or merely administrative directives. It held that when the source of all governmental power is the ruler himself, the analytical distinction between executive orders and legislative commands is essentially academic. No constitutional limitation existed on the ruler’s ability to act in any capacity; he functioned simultaneously as the supreme legislature, the supreme judiciary and the supreme head of the executive, and every order he issued, irrespective of its form, possessed the force of law and regulated the affairs of the State, including the rights of its citizens. The Court referred to the decision in Ameer‑un‑Nissa Begum v. Mahboob Begum, where it had examined a Firman issued by the Nizam and observed that a Firman, while in force, alone governed the rights of the parties concerned, and could be repealed or altered at any time by a subsequent Firman at the Nizam’s pleasure. The Court noted that the same principle applied to all effective orders issued by the Ruler of Gwalior, as also affirmed in Director of Endowments, Government of Hyderabad v. Akram Ali. Finally, the Court stated that any order issued by an absolute monarch in an Indian State that carried the force of law would be considered an “existing law” under Article 372 of the Constitution. Article 372 preserves the validity of laws that were in force in the territories of India immediately before the Constitution commenced, and Article 366(10) defines an existing law as any law, ordinance, order, rule or regulation made before the Constitution by any person possessing the authority to make such law.

In the judgment the Court explained that the term “alia” is to be understood as encompassing any law, ordinance, order, rule or regulation that was passed or made before the Constitution came into force by any authority empowered to make such legislative instruments. The Court then referred to the decision in Edward Mills Co., Ltd., Beawar v. State of Ajmer, wherein it was held that there is no substantive difference between the expressions “existing law” and “law in force”. The Court pointed out that this view is supported by the definition of “existing law” found in Article 366(10) of the Constitution and by the definition of “Indian law” contained in section 3(29) of the General Clauses Act, both of which clarify the position.

Applying those principles, the Court observed that even if the Kalambandis under consideration were not technically a quanun or a statute, they would still qualify as orders or regulations that possessed the force of law in the State of Gwalior at the relevant time, and consequently they would be preserved by Article 372. The next issue the Court identified was whether those Kalambandis were indeed regulations that carried the force of law at that material time.

The learned Advocate‑General of Madhya Pradesh argued that Sir Madhavrao was an enlightened ruler who clearly understood the distinction between executive orders and statutory provisions. Accordingly, if the Kalambandis did not take the form of a quanun or a statute, the Advocate‑General submitted that it was reasonable to infer that they were intended to function solely as executive orders. To support this submission, reliance was placed on observations made by Sir Madhavrao in Volume 7 of his work on Durbar Policy. Sir Madhavrao is quoted as saying, “Broadly speaking, all orders and directions issued by the Ruler may be regarded as laws. In the technical sense, however, the latter term signified only commands whose fulfilment is accompanied by the conferment of a particular concession and whose contravention spells punishment or the extinguishment of a right. Orders issued for the purpose of regulating the working of a department generally take the form of Rules, Manual or Kalambandi and are superscribed as such.”

The Court noted that while this statement does draw a distinction between technically‑named laws and Rules, Manuals or Kalambandis, it is significant that the remark concludes by indicating that the classification is merely intended to identify the group to which a particular set of orders belongs. In other words, the label attached to an order is not decisive; the character, content and purpose of the order must be examined independently. The learned counsel further argued that the Kalambandis in question were not published in the Government Gazette, as other laws were, but only in the military gazette. Consequently, it was contended that they were not called quanun or laws because they were not intended to operate as such.

In discussing the nature of the Kalambandi, the Court observed that the State of Gwalior had enacted several statutes that were expressly described as acts or laws, yet the separation between a Kalambandi and a qanun was not always strictly maintained. For example, rules governing the jurisdiction of the High Court and the operation of the civil and criminal courts were issued under the heading of a Manual, but those rules possessed the full force of law despite being labelled merely as a Manual, which by its title might be distinguished from a qanun. The Court further noted that circulars compiled in the volume titled Majmua Circulars (covering the years 1971 to 1993 Samvat) produced notifications that effectively amended the provisions of the Customs Law. In another instance, the Court pointed out that Sir Madhavrao effected amendments to statutory provisions by issuing directions, though those directions were not presented in the form of a qanun. Specifically, Section 39 of the Durbar Policy, Volume 3, records Sir Madhavrao’s description of the Kalambandi of Samvat 1969 as a “quayada,” and the Durbar Order No. 5 dated 14 April 1923 contains a similar characterization. From these examples the Court concluded that the determination of the present issue could not be based solely on how an order was described. The Court rejected the argument advanced by the learned Advocate‑General that a Kalambandi, because it was not described as a qanun and was not published in the Government Gazette, should automatically be treated as an executive order. The terminology employed by the ruler in naming various orders does not provide decisive guidance in ascertaining their true character. The Court recalled that every order issued by an absolute monarch carried the force of law, and therefore the substance of the orders contained in the Kalambandis must be examined. The first Kalambandi, issued in 1912, comprised fifty‑four clauses. Although its preamble stated that it was issued for the purpose of arranging the administration of the department of irregular units of Shiledari, the detailed provisions within the document unmistakably gave it the character of a statute or a regulation possessing statutory force. The Kalambandi recognized and conferred hereditary rights, authorised the adoption of a son by the widow of a deceased Siladar subject to State approval, provided for the maintenance of widows out of specially earmarked funds, allowed for the appointment of a substitute when a Siladar became old or otherwise unfit for service, and laid down detailed rules concerning the mutation of names after a Siladar’s death. Collectively, these provisions demonstrate that the Kalambandi functioned as a legislative enactment rather than as a mere administrative order intended solely to regulate departmental procedures.

In this case the Court observed that the provisions relating to the death of a Silledar specified that the Asami, being allotted for Shiledari service, could not be mortgaged to satisfy any banker’s debt. The provisions further provided that if a decree were passed against a Silledar and the decree‑holder sought to enforce it against the amount payable, the execution must be carried out in the manner and subject to the limitations expressly prescribed for that purpose. Consequently, the Court noted that the detailed provisions of this Kalambandi dealt with many aspects of the amount payable to the recipient and, when read as a whole, could not be characterized merely as an administrative order intended to regulate the functioning of the department of irregular forces. The second order issued by the Council, which contains thirty‑nine clauses, follows substantially the same pattern as the first order. Its preamble states that, pursuant to the orders of the Durbar, the department of irregulars was governed by regulations issued in 1912, and adds that because the Bedas have now been amalgamated with the regular army and are subject to all laws applicable to the Gwalior army, the 1912 regulations are repealed and new orders are issued. The Court held that this language reads like a statutory provision effecting the repeal of the earlier statute. The scheme of the second order mirrors that of the first, providing for succession, regulation of adoption, mutation and heirship enquiry, appointment of a substitute when a Silledar is unable to work, disqualification from service upon conviction, and a comparable limitation on execution against the Asami. Clause twenty‑two stipulates that where there is no legal heir or the widow of a deceased Silledar, the Silledar’s name shall be struck off and the Asami shall immediately be allotted to another person, and that the Asami shall never be abolished. In the Court’s opinion, given the detailed nature of the two orders, they are difficult to distinguish from statutes or laws and must therefore be treated as rules or regulations having the force of law. This finding was recorded by Abdul Hakim Khan and Newaskar, JJ., and the Court affirmed its correctness. After this finding was recorded and transmitted to the Court, the appellant filed an additional application seeking permission to introduce further evidence. The proposed evidence consists of a book entitled “Guide Book Kalambandi” dated 1 October 1899, which was printed, published and issued under the Ruler’s signature and deals, among other matters, with the administration of the Revenue Department of the State of Gwalior; the book is written in Hindi.

The document in question contains both a prefatory section and an introductory portion, and the appellant contended that the portions of this book that are relevant would demonstrate clearly that the Kalambandi were treated as indistinguishable from a qanun or law. The respondents did not vigorously deny this characterization, but they argued that the appellant should not be permitted any further opportunity to introduce additional evidence because the order of remand had already afforded him a chance to do so, and he was required to produce all the material on which he intended to rely before the High Court. The respondents’ objection carries some merit, for the procedural direction of the remand indeed required the appellant to place his entire case before the High Court at that stage. Nevertheless, it is equally clear that a publication such as the one the appellant now wishes to rely upon would have been primarily within the knowledge of respondent I, and that respondent I therefore ought to have produced any relevant and material documents that could assist the High Court in resolving the issue that had been referred to it after the remand. In view of the conclusion we have already reached on the material that has been adduced on record, we do not consider it necessary to pass a decision on whether the additional evidence ought to be admitted. It is undisputed that if the Kalambandi on which the appellant relies are indeed rules or regulations possessing the force of law, then the impugned executive order issued by respondent 1 would be invalid, because a right guaranteed to the appellant by an existing law cannot be extinguished by the issuance of an executive order. In fact, the parties have never disputed this point in the present proceedings. Consequently, the sole point of controversy between the parties is whether the Kalambandi in question amount to an existing law. Since we have answered that question in favour of the appellant, we must allow the appeal, set aside the order passed by the High Court, and direct that a proper writ or order be issued in favour of the appellant as he has prayed for. The appellant is entitled to his costs throughout. The appeal is therefore allowed.