Sarwarlal And Others vs The State Of Hyderabad

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

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 392 of 1956 and 686 of 1957

Decision Date: 16 March 1960

Coram: J.C. Shah, Bhuvneshwar P. Sinha, Syed Jaffer Imam, A.K. Sarkar, K.C. Das Gupta

The case entitled Sarwarlal and Others versus the State of Hyderabad was decided by the Supreme Court of India on 16 March 1960, with the judgment authored by Justice C. J. Shah; the bench was composed of Justices C. J. Shah, Bhuvneshwar P. Sinha, Syed Jaffer Imam, A. K. Sarkar and K. C. Das Gupta. The petitioners were Sarwarlal and several others, and the respondent was the State of Hyderabad. The judgment date is recorded as 16/03/1960 and the decision appears in the law reports as 1960 AIR 862 and 1960 SCR (3) 311, with citator reference R 1975 SC 706 (16). The matter concerned the Jagir Abolition Regulations promulgated under the authority of the Nizam of Hyderabad and raised the question of their constitutional validity, the nature and extent of the delegation of authority by the Nizam, and the applicability of Article 32(B) of the Constitution of India.

According to the headnote, after a police action in the State of Hyderabad in August 1948 the Nizam issued a Farman dated 19 September 1948 that “invested the Military Governor with all authority for the administration of the State” and, by a later Farman, declared that “the said authority includes and has always included authority to make Regulations.” By virtue of this grant the Military Governor issued the Hyderabad (Abolition of Jagirs) Regulations of 1358 Fasli. When the tenure of the Military Governor ended, the Nizam issued another Farman appointing Mr Vellodi as Chief Minister and directing that “all the powers of administration, vested in the Military Governor before the said date are exercisable by the Chief Minister.” Empowered in this manner the Chief Minister promulgated the Hyderabad Jagirs (Commutation) Regulation XXV of 1358 Fasli. With the commencement of the Constitution of India the territory of Hyderabad became part of the Union, and the President subsequently certified both the Abolition Regulation and the Commutation Regulation under Article 31(6) of the Constitution. The Constitution (First Amendment) Act of 1951 inserted Articles 31(A) and 31(B) and Schedule IX, and these two Regulations were included in the schedule.

The appellant, whose property had been taken over by the Jagir Administrator pursuant to the Abolition Regulation, had earlier filed a writ petition in the High Court. After the constitutional amendment he amended his petition, contending that sections 4(1)(c) and 4(2) of the Commutation Regulation and section 6(4) of the Abolition Regulation were confiscatory, amounting to a colourable and fraudulent exercise of legislative power. The High Court ruled against the appellant and dismissed the petition. The Supreme Court affirmed the High Court’s decision, holding that there was no doubt that the Nizam, at the time he issued the Farmans, was an absolute ruler vested with unfettered executive, legislative and judicial authority, and that the language of the Farmans clearly shows that he delegated the entirety of his authority to the Military Governor and subsequently to the Chief Minister.

In the matter before the Court, the Court observed that the Nizam transferred his full authority and powers first to the Military Governor and subsequently to the Prime Minister. The Court explained that the principle declaring a law invalid because it is made in a colourable exercise of legislative power can be invoked only when the legislature operates under constitutional constraints. Where the legislature’s powers are unrestricted by any constitutional or other limitation, that principle cannot be applied. The Court further held that no violation of fundamental rights could be said to arise because (i) the Regulations under challenge were enacted before the Constitution came into force and the appellant’s rights had already been settled prior to the Constitution, and (ii) Article 32 (B) of the Constitution expressly bars a challenge to those Regulations. The Court referred to the decision in Keshavan Madhava Menon v. State of Bombay, reported in 1951 S.C.R. 228, for support. The judgment recorded that the case fell under the civil appellate jurisdiction, being Civil Appeals Nos 392 of 1956 and 686 of 1957, and arose from the orders dated 31 March 1954 of the former Hyderabad High Court in Civil Writs Nos 43 and 44 of 1951. Counsel for the appellants appeared for both appeals, while counsel for the respondents represented the other side. The appeal, numbered Civil Appeal No 392 of 1956 and decided on 16 March 1960, was heard by Justice Shah, who delivered the judgment. The appeal was filed under a certificate granted pursuant to Article 133 (1)(c) of the Constitution by the High Court of Judicature of the State of Hyderabad. The appellant was a Jagirdar who possessed the jagirs of Ramwarm Chandam Palli and Gulla Palli, Taluq Sirsalla, situated in the Karimnagar District of the State of Hyderabad. Following the police action in August 1948, Major General Chaudary was appointed Military Governor of Hyderabad. The Nizam, His Exalted Highness, conferred upon the Military Governor the authority to administer the State by a Farman dated 19 September 1948, which directed all subjects to obey the Governor’s orders and to cooperate in restoring law and order. On 7 August 1949, the Nizam issued an explanatory Farman declaring that the authority vested in the Military Governor included the power to make Regulations. Subsequently, on 10 August 1949, the Military Governor promulgated the Hyderabad (Abolition of Jagirs) Regulation of 1358 Fasli, which the Court referred to as the Abolition Regulation.

In this matter, the Regulation that abolished the jagirs was designated as the Abolition Regulation. The Regulation became effective on 15 August 1949, the date on which it was published in the Official Gazette. Section 5 of the Regulation stipulated that, from a date to be announced by the authorities, the administration of every jagir in the State was to be transferred to the Government. Accordingly, each jagirdar was required to hand over the management of his jagir to the appointed Jagir Administrator, and if a jagirdar failed to comply, the officer named under the Regulation was empowered to take possession of the jagir by force. Section 6 provided that the jagirs would be incorporated into the “Diwani” and, until they were placed within a specific district, they would be administered by the Jagir Administrator. The section further declared that all powers, rights and liabilities previously enjoyed by the jagirdars in relation to their jagirs would cease and would instead be exercised by the Jagir Administrators. Moreover, the jagirdars were prohibited from collecting or receiving any customary or other dues from any tenant or resident of the jagir. Section 14 addressed the financial situation of the jagirdars, specifying that they would receive certain interim maintenance allowances until the terms for the commutation of the jagirs were finally settled. Acting under the authority reserved by clause a. 6 of the Abolition Regulation, the Jagir Administrator, on behalf of the State of Hyderabad, assumed possession of the jagirs in September 1949. Subsequently, on 1 December 1949, His Exalted Highness the Nizam issued another Farman, which announced that the General Officer Commanding‑in‑Chief of the Southern Army had, as of that date, terminated the appointment of Major General Chaudary, O.B.E., as Military Governor of Hyderabad State. The Farman further provided that new arrangements were required for the administration of the State and appointed Mr M. K. Vellodi, C.I.E., I.C.S., as Chief Minister from that date, directing that all administrative powers previously vested in the Military Governor would now be exercisable by the Chief Minister. Exercising those powers, the Chief Minister promulgated the Hyderabad Jagirs (Commutation) Regulation No. XXV of 1359 Fasli, hereinafter referred to as the Commutation Regulation, which came into operation on 25 January 1950. Section 3 of the Commutation Regulation prescribed the method for computing the commutation sum for each jagir. After the Constitution of India commenced on 26 January 1950, thereby integrating the territory of Hyderabad into the Union of India, the President, by a notification published on 25 April 1950 in the Gazette of the Union of India, certified both the Abolition Regulation and the Commutation Regulation under Article 31(6) of the Constitution. Finally, the Constitution was amended on 18 June 1951 by the Constitution (First Amendment) Act, 1951, which, among other changes, introduced Articles 31(A) and 31(B) and incorporated Schedule IX into the Constitution.

The Abolition Regulation and the Commutation Regulation were placed in Schedule IX of the Constitution, and, because of Article 31 (B), the Court held that neither of those Regulations nor any of their individual provisions could be considered void, nor could they ever be treated as void, on the ground that they conflicted with, removed, or restricted any of the rights guaranteed by any provision of Part III of the Constitution. In the meantime, the appellant filed a petition on 29 January 1951 in the High Court of Hyderabad seeking a writ of mandamus. The petition demanded that the State of Hyderabad and the Jagir Administrator deliver possession of the appellant’s properties, that the Court declare both the Abolition Regulation and the Commutation Regulation ultra vires and unconstitutional, and that certain interim orders be granted. After the Constitution was amended, the petitioner amended the suit on 14 August 1952. In the amended petition the appellant asserted that sections 4(1)(c) and 4(2) of the Commutation Regulation and section 6(4) of the Abolition Regulation were invalid because, in the appellant’s view, those provisions amounted to a “naked confiscation of the property” of the appellant and represented a “colourable and fraudulent exercise of legislative power.” The High Court of Hyderabad dismissed the petition, but it certified the matter under Article 133(1)(c) as appropriate for appeal to this Court.

In the appeal before this Court, two principal questions were presented for determination. First, the Court had to decide whether the Farman dated 19 September 1948 conferred legislative authority upon the Military Governor. Second, assuming that the Farman did delegate legislative power, the Court needed to ascertain whether any limitations or reservations were attached to that delegation. The issue therefore turned on whether the Military Governor, by virtue of the Farman, was invested with the full sovereign authority—legislative, executive, and judicial—of His Exalted Highness the Nizam, or whether he received only executive authority. The Court observed that the language of the Farman plainly stated that “all authority for the administration of the State was conferred upon the Military Governor,” and there was nothing in the document to suggest that the delegation was confined solely to executive functions. The expression “all administrative authority” was interpreted to embrace the totality of the sovereign’s power, and the delegation by the Nizam was therefore understood to have transferred that complete authority to the Military Governor in its full amplitude. The Court further noted that the injunction addressed to the subjects of the State, directing them to obey any orders the Military Governor might deem fit to issue, together with the appeal to officers and subjects to render faithful and unflinching obedience and to behave in a manner calculated to bring about the speedy restoration of law and order, did not limit the breadth of the powers conferred on the Military Governor. Moreover, the term “orders” was held to include every directive issued in the exercise of the authority for the administration of the State, and the

In this case the Court observed that the purpose intended to be achieved – namely the speedy restoration of law and order in the State as expressed in the appeal of His Exalted Highness the Nizam – was not intended to limit the scope of the authority that had been delegated. It was an established fact that before September 1948 the Nizam was an absolute ruler possessing the entire spectrum of executive, legislative and judicial powers. He alone could modify, restrict, remove or extinguish the rights of any of his subjects, and the validity of his actions or orders could not be called into question before any tribunal or other authority. The Farman dated 19 September 1948, issued by His Exalted Highness the Nizam, transferred his sovereign authority to the Military Governor. To eliminate any uncertainty about the effect of that transfer, an explanatory Farman was issued on 7 August 1949, which expressly declared that the Military Governor’s authority included, and had always included, the power to make Regulations. In the clearest language the author of the Farman set out the content of the authority that he was delegating to the Military Governor. The submission advanced by counsel for the petitioner, which suggested that the Farman merely recorded that the Military Governor had been given authority for administration and did not, by its own force, confer on him the power to administer the State, was found to be inconsistent with the arguments presented in the High Court and with the statement of case filed before this Court; consequently that plea was rightly abandoned. Although the delegation invested the Military Governor with the whole authority of the Nizam in respect of the administration of the State and all its departments, the sovereignty of the Nizam was not extinguished by that act. The Nizam retained the ability, notwithstanding the delegation, to issue orders or Regulations that were contrary to those issued by the Military Governor and also to withdraw the Military Governor’s authority. The record, however, contained no evidence that after 19 September 1948 and before the promulgation of the Abolition Regulation the Military Governor’s authority had been withdrawn or that the Nizam had issued any order or Regulation inconsistent with the Abolition Regulation. The Military Governor’s authority was withdrawn in December 1949, and the Chief Minister was then invested with the same administrative authority, expressly including the power to legislate, and it was in the exercise of that authority that the Chief Minister issued the Commutation Regulation. The Nizam’s sovereign power to resume the jagirs and to extinguish the interests of the jagirdars, having been delegated to the Military Governor, could not be questioned on any ground of legislative competence. Assuming that no opportunity had arisen for the exercise of sovereign authority in relation to the resumption of jagirs or the extinction of jagirdars’ interests before the Abolition Regulation was issued, no inference could be drawn that the Nizam had irrevocably limited his sovereignty or that the delegation to the Military Governor was subject to an implied restriction preventing the extinguishment of the jagirdars’ interests.

In the present case the Court observed that, because there was no evidence that the sovereign authority of His Exalted Highness the Nizam had been exercised to resume jagirs or to extinguish the jagirdars’ interests before the Abolition Regulation was issued, no conclusion could be drawn that the Nizam had permanently limited his own sovereignty or that the delegation of that sovereign power to the Military Governor was subject to an implied condition preventing the extinguishment of the jagirdars’ interests. The Court held that the Military Governor’s authority was unlimited for as long as it remained in force, and therefore his action in promulgating the Abolition Regulation could not be attacked on the ground that it represented a colourable use of legislative power. The Court explained that the doctrine of invalidity for statutes enacted in a colourable manner applies only to legislatures whose powers are constrained by constitutional limits. When a legislature that is bound by such limits pretends to comply with the restrictions while actually attempting to evade them, the resulting statute is a fraud on the Constitution and may be struck down as beyond the legislature’s competence. By contrast, a statute issued by a body whose powers are not confined by any constitutional or other limitation cannot be invalidated on the basis of colourable exercise of power. Accordingly, the Court found that the Chief Minister, acting under the Farman dated 1 December 1949, possessed authority as wide as that of the Nizam, and that the Commutation Regulation therefore could not be challenged for lack of legislative competence or for being colourable, because the Chief Minister was exercising the legislative power delegated by the Sovereign. The Court further noted that it was unnecessary to examine in detail the claim that the two Regulations infringed the appellant’s fundamental rights under the Constitution. By virtue of the Abolition Regulation the appellant’s rights as a jagirdar in his jagir were extinguished, and the Commutation Regulation fixed the amount of compensation payable to him through legislation that pre‑dated the Constitution. The Court affirmed that the Regulations were validly promulgated under the proper legislative authority and that the Constitution does not operate retrospectively to revive rights that had been extinguished before the Constitution came into force. As established in Keshavan Mahava Menon v. State‑of‑Bombay (1), the Constitution, unless expressly provided otherwise, has no retrospective effect, and rights abolished by earlier legislation are not revived by its commencement. Consequently, at the moment the Constitution began to operate, the appellant possessed no rights in the jagirs and could not seek a writ of mandamus for delivery of possession of the jagir, nor could he obtain any writ directing commutation except as provided for under the Commutation Regulation. The Court also observed that Parliament, by way of the Constitution (1st Amendment) Act, has placed the Abolition and the Commutation Regulations within the Ninth Schedule, thereby insulating them from challenges based on inconsistency with or abridgement of the fundamental rights guaranteed in Part III of the Constitution.

In the judgment, the Court observed that because the two Regulations were placed in the Ninth Schedule and were protected by Article 31 B of the Constitution, they could not be challenged on the basis that they conflicted with, removed, or limited any of the fundamental rights guaranteed in Part III of the Constitution. This constitutional protection meant that the Regulations were shielded from any claim that they infringed on those rights.

The Court consequently concluded that the appellant’s petition could not succeed. Accordingly, the appeal was refused and the Court ordered that the appellant pay the costs of the proceeding. The case was identified as Civil Appeal No. 686 of 1957.

Furthermore, the Court noted that the present appeal presented the same legal issue that had already been resolved in the companion case, Civil Appeal No. 392 of 1956. The earlier decision contained a detailed exposition of the reasons for rejecting the claim, and the Court indicated that those same reasons applied here. For that reason, the Court held that the present appeal must also fail, ordered its dismissal, and imposed the costs on the appellant.

In summary, both the present appeal and the companion appeal were dismissed, and the parties were each required to bear their respective costs as directed by the Court.