State Of Saurashtra vs Jamadar Mohamad Abdulla And Ors

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 3 October, 1961

Coram: S.K. Das, Bhuvneshwar P. Sinha, A.K. Sarkar, N. Rajagopala Ayyangar, J.R. Mudholkar

The case titled State of Saurashtra versus Jamadar Mohamad Abdulla and others was decided by the Supreme Court of India on 3 October 1961. The judgment was authored by Justice S.K. Das and the bench included Justice Bhuvneshwar P. Sinha, Justice A.K. Sarkar, Justice N. Rajagopala Ayyangar and Justice J.R. Mudholkar. The parties were recorded as the State of Saurashtra as petitioner and Jamadar Mohamad Abdulla and others as respondents. The reported citations for this decision are 1962 AIR 445 and 1962 Supreme Court Reports Supplement (3) 970, with additional citator references R 1962 SC 1288, R 1964 SC 1043, R 1967 SC 40, RF 1969 SC 370, RF 1981 SC 1946 and others. The judgment also referred to the Act of State concerning Junagadh State when it was integrated into India, the political question doctrine, the necessity of a reference to the Government of India for an opinion, the grants made by the Nawab, the resumption of administration by the appointed Administrator, and the question of whether such actions could be challenged in municipal courts, all within the framework of the Government of India Act 1935 (26 Geo. v. Ch. 2), sections 6 and 299(1).

According to the headnote, the Nawab of Junagadh State had, before 1947, granted several properties in favour of the respondents. After Indian independence, the Nawab fled the country. At the request of the Nawab’s Council, the Government of India assumed control of the State’s administration, and on 9 November 1947 the Regional Commissioner took charge on behalf of the Government. The Regional Commissioner subsequently appointed an Administrator for Junagadh. In December 1948, the elected representatives of Junagadh together with representatives of certain neighbouring states recommended to the Government of India and to the United State of Saurashtra that the various states be integrated. Consequently, the administration of Junagadh was merged with the United State of Saurashtra on 20 January 1949. Between 9 November 1947 and 20 January 1949 the Administrator issued several orders cancelling the earlier grants to the respondents and took possession of the disputed properties. The respondents responded by filing civil suits seeking recovery of the properties, alleging that the dispossession occurred without any legal authority.

The State of Saurashtra argued that the Administrator’s orders were made in the course of an Act of State and therefore were not justiciable before municipal tribunals. The respondents counter‑argued that the determination of when sovereignty transferred was a political question that should be referred to the Government of India for its opinion, and that the facts showed a complete change of sovereignty on 9 November 1947, rendering the Act of State complete. The Court, speaking through the Chief Justice and Justices Das and Ayyangar, held that the impugned orders arose out of and during an act of State and consequently could not be questioned in municipal courts. The Court further observed that there was no legal transfer of de jure sovereignty on 9 November 1947; Junagadh continued to exist as a separate entity and only on 20 January 1949, by its integration into the United State of Saurashtra, did the Dominion of India acquire de jure sovereignty over Junagadh, thereby bringing the Act of State to an end.

The Court observed that Junagadh’s territory was not included within the Dominion of India as of 9 November 1947; it was only on 20 January 1949 that the Dominion of India assumed de jure sovereignty over Junagadh by integrating it into the United State of Saurashtra, thereby terminating the act of State. The Court further held that it was unnecessary to seek information from the Government of India regarding the date of the change because there was no uncertainty about it and because the Government had expressed the date with sufficient clarity in the White Paper on Indian States. The decisions in State of Saurashtra v. Memon Haji Ismail Haji, (1960) 1 S.C.R. 537 and M/s. Dalmia Dadri Cement Co. Ltd. v. The Commissioner of Income‑Tax, (1959) S.C.R. 729 were followed, and reference was made to In re Southern Rhodesia, (1919) A.C. 211 and Samaut v. Strickland, (1938) A.C. 678. Per Sarkar and Mudholkar JJ., even if it were accepted that Junagadh was annexed on 9 November 1947 and that the respondents became citizens of India, they could assert and establish before the municipal courts of the new sovereign only those rights that were recognised by the Indian Dominion, and the burden of proving such recognition rested on the respondents. The orders passed by the Administrator showed that, far from recognising the grants in favour of the respondents, those grants were repudiated. Consequently, the respondents could not claim the benefit of section 299(1) of the Government of India Act, 1935, because they had to demonstrate that after 9 November 1947 they possessed a legally enforceable right against the Dominion of India, which required proof that their pre‑existing rights had been recognised; section 299(1) did not enlarge any property rights but only protected those already possessed. The Court also cited M/s Dalmia Dadri Cement Co. Ltd. v. The Commissioner of Income‑Tax, (1959) S.C.R. 729; In re Southern Rhodesia, (1919) A.C. 211; Samaut v. Strickland, (1938) A.C. 678; United States v. Percheman, (1833) 32 U.S. 51; Cook v. Sprigg, (1899) A.C. 572; Phacker v. State of Saurashtra, A.I.R. 1954 S.C. 680; and Virendra Singh v. State of Uttar Pradesh, (1955) 1 S.C.R. 415. The judgment was rendered in a civil appellate jurisdiction involving Civil Appeals Nos. 220, 221, 349 and 497 of 1958, appealed from judgments and decrees dated 24 March 1955, 15 September 1956 and 12 April 1956 of the former Saurashtra High Court at Rajkot in various civil appeals. Counsel for the appellant included the Attorney‑General for India, the Solicitor‑General of India and other representatives, while counsel for the respondents comprised several advocates for each appeal. The judgment was delivered in October 1961.

The judgment authored by Justice S. K. Das was read on behalf of Chief Justice Sinha and Justices N. Rajagopala Ayyangar, while Justice J. R. Mudholkar delivered the opinion of Justices Sarkar and Mudholkar. These four appeals were presented to the Supreme Court on certificates issued by the former High Court of Saurashtra pursuant to Article 133 of the Constitution. The appeals were grouped into three categories and were heard together because the material facts underlying each case were essentially the same, giving rise to a single legal question that required resolution on those common facts. The appellant in all of the appeals was the State of Gujarat, which now encompasses the territories where the disputed properties are located. The respondents, and in certain instances their ancestors, had received grants from the Nawab of Junagadh—then a sovereign princely state—concerning parcels of land and, in one instance, a building identified as “Datar Manzil.” Following the political integration of Junagadh into the Dominion of India in 1947, the Administrator who assumed control of Junagadh’s administration on behalf of the Dominion annulled those grants and resumed possession of the property. The respondents subsequently instituted lawsuits challenging the legality of the Administrator’s orders. The lower court issued decrees in favor of the respondents, and the High Court of Saurashtra largely affirmed those decrees. The central issue before the Supreme Court was whether the Administrator’s orders were issued as part of a state act that fell outside the jurisdiction of ordinary civil courts, rendering the orders non‑justiciable. The State of Gujarat, as appellant, relied heavily on the Supreme Court’s earlier decision in State of Saurashtra v. Memon Haji Ismail Haji, where, under analogous circumstances, the Court held that the Dominion’s assumption of administration over Junagadh constituted a pure act of State, and that the Administrator’s resumption of the grant—although perhaps arbitrary—was an act of State and therefore beyond judicial review. That precedent had overruled a prior judgment of the Saurashtra High Court in State of Saurashtra v. Memon Haji Ismail Haji Valimamad, which the High Court had used as the basis for its rulings in the present cases. The Attorney‑General argued that the Memon decision fully addressed and resolved the matters raised in the current appeals. Conversely, counsel for the respondents contended that the earlier ruling was premised on a finding that the act of State had not been completed when the impugned orders were issued, a factual determination that, they argued, did not bind parties who were not before the earlier case. The respondents maintained that the orders were issued after the Dominion had completed its assumption of sovereignty, and therefore the Memon precedent should not control the issues presented in these appeals.

The Court observed that the earlier decision rested on a finding that the act of State had not been completed before the impugned orders were issued, and that this finding was a finding of fact. Because the respondents were not parties to the case in which that finding was made, the Court held that the finding did not bind them. The respondents, in the present appeals, contended that the impugned orders were issued after the Dominion of India had fully assumed sovereignty, and therefore the earlier judgment in State of Saurashtra v. Memon Haji Ismail Haji (1) could not control the issues raised in these appeals. They further argued that once full sovereignty had been assumed by the Dominion, the petitioners from Junagadh, including the respondents, were no longer aliens outside the State but were citizens of India. As citizens, they could not be subject to an act of State and retained rights that could be enforced in the municipal courts.

Having outlined the principal question for determination and the respective contentions of the parties, the Court proceeded to set out the essential facts necessary to resolve the matter. It noted that the essential facts were identical across the appeals, although the specific grants made in favour of each respondent differed. The Court therefore recounted the historical background relevant to the dispute. India and Pakistan became independent Dominions on 15 August 1947 under the Indian Independence Act, 1947 (10 & 11 Geo. VI. C. 30). Section 7 of that Act terminated the suzerainty of His Majesty over the Indian States, including Junagadh, thereby releasing those States from any obligations to the Crown. The White Paper on Indian States, at page 32, explained that the loss of suzerainty created a potential vacuum in both political relations between the Central Government and the States and in the coordination of all‑India policies in economic and other fields. The White Paper further observed that the only provision the Dominion Government inherited from the Paramount Power was the proviso to section 7, which allowed the continuation, until denounced by either party, of agreements between the Indian States and the Central and Provincial Governments concerning matters such as customs, posts and telegraphs (Appendix IV). Consequently, a process of accession was commenced to integrate the States into the Dominion of India.

By 15 August 1947 every state that lay within the geographical limits of India, except Hyderabad, Kashmir and Junagadh, had executed an Instrument of Accession and thus joined the newly created Dominion of India. The Nawab of Junagadh, however, neither signed such an instrument nor remained in the state; he fled the country, and in his absence the administration of Junagadh descended into disorder and chaos. At the request of the Nawab’s Council, the Government of India resolved to assume responsibility for the governance of the state. Consequently, on 9 November 1947 the Regional Commissioner for Western India and the Gujarat States Region took charge of Junagadh’s administration on behalf of the Government of India. A proclamation issued on that day declared that the Regional Commissioner had assumed control of the state’s administration at eighteen hundred hours on 9 November 1947. Five days later, on 14 November 1947, the Regional Commissioner appointed Shri S. W. Shiveshwarkar as Administrator of Junagadh State. The Administrator subsequently issued a series of orders, which later became the subject of the appeals before this Court; those orders will be discussed after the broader political developments are outlined. In February 1948 the Government of India conducted a referendum in Junagadh to ascertain the wishes of the people concerning accession, and the electorate voted by a large majority in favour of joining the Dominion of India. Following that result, and with the Government’s approval, the Administrator constituted an Executive Council, designating himself as President and selecting three additional members to serve on the council. In December 1948 the elected representatives of Junagadh’s people resolved that the state’s administration should be transferred to the Government of Saurashtra and that Junagadh’s representatives should be permitted to take part in the Constituent Assembly of Saurashtra for the purpose of framing a common constitution for both Saurashtra and Junagadh. To explain how this integration occurred, it is necessary to note that on 23 January 1948 thirty rulers of the principal Kathiawar states signed a covenant establishing the United State of Kathiawar—later known as the United State of Saurashtra—comprising their territories for the welfare of their peoples and entrusting a Constituent Assembly with the task of drafting a democratic constitution for that State within the framework of the Constitution of India, to which they had already acceded. At that time Junagadh possessed no ruler and no covenant had been signed on its behalf. Later, in December 1948, the elected representatives of Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh recommended to both the Government of India and the Government of the United State of Saurashtra that the administrations of those states be integrated with the United State of Saurashtra. The rulers of the covenant‑signatory states then entered into a Supplementary Covenant, with the concurrence of the Government of India, to effect that integration.

In the Supplementary Covenant, the governments of India and the United State of Saurashtra agreed to integrate the administration of Junagadh and several other states. Article 3 of that covenant, as reproduced in the White Paper on Indian States (page 249), stated that from a date to be agreed upon by the concerned governments, the administration of the mentioned states would be merged with that of the United State of Saurashtra, and that thereafter the legislative and executive authority, powers and jurisdiction of the United State of Saurashtra would extend to those states in the same manner as it applied to any covenanted state. The integration of Junagadh’s administration was effected on 20 January 1949, and from that day onward the legislative and executive jurisdiction of the United State of Saurashtra covered Junagadh to the same extent as it covered the territories of the original covenanting states. Although further political developments occurred after that date, those later changes were not relevant to the matters before this Court. The two dates of significance for the present appeal were 9 November 1947, when the Regional Commissioner first assumed responsibility for Junagadh’s administration, and 20 January 1949, when Junagadh was formally merged into the United State of Saurashtra.

The orders that are now challenged were issued by the Administrator of the former Junagadh State. In Civil Appeal No. 349 of 1958, the ancestors of the respondents had obtained two village grants—Handla and Venderwad—from the Nawab of Junagadh sometime between 1865 and 1868. A full chronology of those grants was not necessary for the Court’s purpose. On 6 December 1947 the Administrator issued an order stating that it had become aware that Aba Salem Bin Abs Mahmed Hindi, the alienee of Handla village, was (i) employing many Arab workers in his Junagadh house, (ii) threatening to massacre all Hindus of Handla, (iii) keeping fifty animals in Handla at the expense of the poor villagers, (iv) failing to pay wages to garden labourers while extracting labor‑tax from them, (v) imposing exorbitant cesses on the villagers, (vi) having converted three Hindus to Islam, and (vii) having taken from Handla to Junagadh about a month earlier twelve bore guns and one machine‑gun. Consequently, the order directed that Handla village should be placed under the supervision of the State manager, and that the Revenue Commissioner should make the necessary arrangements and report on compliance. By that order the management of Kandla (the village referred to as Handla) was taken over by the State. Although the order did not expressly mention Venderwad, it was admitted that both villages came under State management.

Subsequently, on 8 January 1949, the Administrator issued another order stating that the Junagadh State Government ordered the immediate resumption by the State of the land and villages constituting the Handla estate, which was an Inam grant. While this order again referred only to the Handla estate, it was accepted that both Handla and Venderwad were resumed by the Administrator’s order of that date. The order dated 8 January 1949 is the one that the respondents have challenged in the present appeal.

The Court noted that the administration of both villages had been placed under State control. Subsequently, on 8 January 1949, the Administrator issued an order stating, “The Junagadh State Government is pleased to order that the land and villages comprising the Handla estate, which is an Inam grant, be resumed by the State forthwith.” Although the order mentioned only the Handla estate, the admitted position was that the order effected the resumption of both villages. This order of 8 January 1949 formed the subject of the respondents’ challenge in the present appeal. In Civil Appeal No 497 of 1958, the grant in question related to a bungalow or building known as “Datar Manzil.” On 9 March 1948, the Administrator had made another order declaring that the State building situated near Gadhrup Wada at Junagadh was granted hereditarily by way of gift under Dewan “Daftar Tharay No. 3379 dated 1 August.” The order cancelled the said Tharay and directed that, in the interest of the State, the building together with all superstructures should be resumed and managed by the State as State property. In Civil Appeals Nos 220 and 221 of 1958, the impugned order dated 27 July 1948 stated that twenty‑five Santis of land from the village of Khokhardea under Vanthali, Mahal, had been granted hereditarily to Mr Mohamed Abdulla, son of the late Jamadar Abdulla Moosa, under Hazur Farman No 279 dated 30 April 1943. The order observed that, in view of the principles of the Alienation Settlement of 1897, no grant could be favoured in contravention of the well‑established principles of resumption applicable to such grants; consequently, the farman dated 30 April 1943 was cancelled and the land was to be resumed by the State forthwith, setting aside the settlement made thereon. The Court observed that all the impugned orders were issued after 9 November 1947 but before 20 January 1949. The principal issue was whether these orders were made pursuant to acts of State that were not justiciable in municipal courts. The Court considered that, if the decision in State of Saurashtra v. Memon Haji Ismail Haji ([1960] I.S.C.R. 537) applied, the appeals would have to be allowed. Counsel for the respondents attempted to distinguish that decision on the basis that it was predicated on the assumption that the Dominion of India assumed sovereignty over Junagadh on 20 January 1949. The counsel argued that when the Dominion of India took charge of Junagadh’s administration on 9 November 1947 through the Regional Commissioner, Western India and Gujarat States Region, a complete changeover of sovereignty occurred, rendering the act of State complete, and that the people of Junagadh, including the respondents, consequently became citizens of the Dominion and acquired the corresponding rights to seek relief in municipal courts.

The Court observed that the respondents possessed rights as citizens of the Dominion of India, and therefore they could invoke municipal courts for any relief to which such citizens were entitled. The argument presented by counsel for the respondents was divided into two steps. The first step asserted that a complete change‑over of sovereignty had occurred on 9 November 1947 and that the act of State was thereby finished. The second step, which depended on the correctness of the first, claimed that, upon that change‑over, the people of Junagadh, including the respondents, became citizens of the Dominion of India and were no longer aliens outside the Dominion. The Court then turned to examine the validity of the first step. In doing so it clarified that it was not accepting the submission that a finding concerning the change‑over of sovereignty or the completion of an act of State constituted a pure factual finding. Instead, the Court held that the essential question was what legal inference should be drawn from the fact that had been proved or admitted regarding the change‑over of sovereignty. Because this issue had not been argued from that perspective in State of Saurashtra v. Memon Haji Ismail Haji, the Court permitted counsel for the respondents to address it. Counsel for the respondents advanced a two‑fold submission. First, he argued that the question of when the change‑over of sovereignty took place was a political question that must be referred to the Government of India for opinion, and that the Court should follow that opinion. Second, he contended that, on the facts admitted in the present case, there had indeed been a complete change‑over of sovereignty on 9 November 1947 and that the act of State was complete. The Court found neither submission persuasive. Regarding the first submission, the Court noted that counsel had drawn its attention to paragraph 603, pages 285‑286, vol. 7 of Halsbury’s Laws of England, 3rd edition, which states: “There is a class of facts which are conveniently termed ‘facts of State’. It consists of matters and questions the determination of which is solely in the hands of the Crown or the government, of which the following are examples: (1) whether a state of war exists between the British Government and any other State, and if so, when it began; the municipal courts have no power of inquiring into the validity of a declaration by the Crown whether a state of war exists or whether it has ended; (2) whether a particular territory is hostile, or foreign, or within the boundaries of a particular state; (3) whether and when a particular government is to be recognised as the government of an independent state; (4) the status of a person claiming immunity from judicial process on the ground of diplomatic privilege.” The Court concluded that the present question did not fall within the category of a pure “fact of State” requiring deference to the executive, and therefore the submissions of counsel for the respondents were rejected.

The Court explained that when a matter concerns diplomatic privilege or other matters of state, it may take judicial notice of such “facts of state.” In situations where there is any doubt, the Court may request information from a Secretary of State, and any information so obtained is treated as conclusive. Counsel for the respondents had drawn the Court’s attention to several English decisions that support the quoted paragraph from Halsbury’s Laws, but the Court deemed it unnecessary to examine those decisions. The Court then observed that the issue before it in the present appeals did not require any inquiry to the relevant department of the Government of India. Firstly, the Court found no uncertainty about the factual matrix. Secondly, the White Paper on Indian States, issued by the Ministry of States, had already articulated the Government’s view concerning the political developments in Junagadh. That publication made it clear that there was no change in the assumption of sovereignty on 9 November 1947 in the sense alleged by the respondents’ counsel. Finally, the Court held that the question was not essentially one of a disputed “fact of state” that only the Government could determine; rather, it was a question that fell within the jurisdiction of the courts. Consequently, the matter to be decided was not the status or boundaries of any particular state territory, but the validity of the contention raised by the appellant‑State that the orders issued by the administrator were acts of state and therefore not justiciable in municipal courts.

The Court noted that a substantial body of case law shows that such a plea can be resolved by courts without seeking the Government’s opinion. The plea concerned the maintainability of the suits filed by the respondents and thus required a judicial determination. At one stage, counsel for the respondents referred to section 6 of the Extra‑Provincial Jurisdiction Act, 1947 (Act XLVII of 1947), arguing that the provision made it obligatory for the Court to refer the question to the Central Government. When it was pointed out that section 6, in its terms, did not apply to the proceedings from which these appeals arose, the counsel submitted that, even if a referral was not mandatory, it would be expedient because the answer depended on “the extent of the jurisdiction” assumed by the Dominion of India in Junagadh on 9 November 1947. According to that counsel, this was a “fact of state” that only the Government could determine. The Court, however, found no need for such a referral, emphasizing that the issue was a legal one within its competence and not a sovereign fact requiring executive determination.

In this case the Court observed that there was no uncertainty regarding the factual basis of the appellant State’s plea, because the Government had already expressed those facts with sufficient clarity. The Court referred to paragraph 223 on pages 113 and 114 of the White Paper on Indian States issued by the Ministry of States, a document that the Court had previously relied upon as containing the authentic opinion of the Government on the political questions involved. The White Paper stated the following: “The position of Junagadh and certain other adjoining States in Kathiawar may also be briefly stated here. After the Nawab of Junagadh had left the State for Pakistan, the administration of the State was taken over by the Government of India on November 9, 1947, at the request of the Nawab’s Council. Obviously, the action taken by the Government of India had the fullest approval of the people of Junagadh in that the results of the referendum held in Junagadh and the adjoining smaller States in February 1948 showed that voting in favour of accession to India was virtually unanimous. During the period the Government of India held charge of the State an Administrator appointed by the Government of India assisted by three popular representatives conducted the administration of the State. In December 1948, the elected representatives of the people of Junagadh resolved that the administration of the State be made over to the Government of Saurashtra and that the representatives of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra State with a view to framing a common Constitution for Saurashtra and the Junagadh State. Similar resolutions were adopted by the representatives of Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh. Accordingly a Supplement Covenant (Appendix XXXVI) was executed by the Rulers of Kathiawar States with a view to giving effect to the aforesaid resolutions. The administration of Junagadh was taken over by the Saurashtra Government on January 20, 1949, and of the other States some time calling. Accordingly the Constitution treats Junagadh and these States as part of Saurashtra.” From this passage the Court extracted the sequence of steps by which the Dominion of India assumed sovereignty over Junagadh between 9 November 1947 and 20 January 1949. First, the administration of Junagadh was taken over by the Government of India on 9 November 1947 at the request of the Nawab’s Council. Second, while the Government of India retained charge, an Administrator appointed by that Government, assisted by three popular representatives, conducted the administration. Third, a referendum held in February 1948 showed that the people of Junagadh voted overwhelmingly for accession to India, although no formal Instrument of Accession was executed. Fourth, in December 1948 the elected representatives of Junagadh resolved that the administration of the State should be transferred to the Government of Saurashtra. The Court thus concluded that the factual background of the State’s claim was established by the Government’s own statements, eliminating any doubt about the matters on which the appellant’s plea was premised.

The Court explained that after the earlier steps, the next actions were as follows: the State of Saurashtra and the elected representatives of Junagadh were to be permitted to take part in the Constituent Assembly of Saurashtra State; a Supplementary Covenant, reproduced as Appendix XXXVI in the White Paper, was signed by the rulers of the Kathiawar States in order to give effect to the resolutions that had been passed; and finally, on 20 January 1949, the administration of Junagadh was transferred to the Government of Saurashtra. The Court then referred to the decision in M/s Dalmia Dadri Cement Co. Ltd. v. The Commissioner of Income‑tax, noting that this Court had observed that “In law, therefore, the process of acquisition of new territories is one continuous act of State terminating on the assumption of sovereign powers de jure over them by the new sovereign, and it is only thereafter that rights accrue to the residents of those territories as subjects of that sovereign. In other words under the dominion of a new sovereign, the right of citizenship commences when the act of State terminates and the two therefore cannot co‑exist.”

The Court further observed that a change of de jure sovereignty can sometimes occur simultaneously through a treaty or agreement, but that was not the situation in Junagadh. After the Nawab’s Council invited the Government of India, the latter assumed administrative control on 9 November 1947 by appointing an Administrator, because the ruler had fled before that date. The Court held that this did not amount to a transfer of de jure sovereignty; Junagadh continued to exist as a distinct state, which is why a referendum was held in February 1948 and why the elected representatives passed resolutions in December 1948. Those events would have been meaningless if Junagadh had ceased to exist. Likewise, the Supplementary Covenant executed by the Kathiawar rulers would have been unnecessary without a continuing state. The Court also emphasized that Junagadh never signed an Instrument of Accession to India. In this connection the Court referred to sections 5 and 6 of the Government of India Act, 1935, as they stood at the relevant time. Section 5, inter alia, declared that the Dominion of India would, from 15 August 1947, comprise the Governor’s Provinces, the Chief Commissioners’ Provinces, the Indian states acceding in the manner provided by section 6, and any other areas included with the consent of the Dominion. Junagadh was neither a Governor’s Province nor a Chief Commissioner’s Province, and it did not accede in the manner prescribed by section 6; consequently, it was not a state acceding to the Dominion, nor was its territory automatically part of the Dominion under clause (d) of section 5.

In this matter, the Court observed that the provision of subsection (d) of section 5 applied from 9 November 1917, but the process of assuming sovereignty over Junagadh had not yet been completed and the Dominion of India did not regard the Junagadh territory as part of its own domain at that time. The Dominion Government, however, gave its concurrence to a Supplementary Covenant that had been executed by the Rulers of Kathiawar. That covenant stipulated that the states of Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh were to be merged with Saurashtra. The Court noted that the Supplementary Covenant expressly listed Junagadh as a separate State whose administration was to be incorporated into the United State of Saurashtra. Accordingly, Junagadh ceased to exist as a separate State only when that integration was effected. The Court found this position to be beyond doubt and pointed to the statements made in paragraph 223 of the White Paper on Indian States as confirmation of the same. Counsel for the respondents relied on observations from well‑known textbooks on international law, arguing that state sovereignty and state jurisdiction are complementary and co‑extensive, and that a state’s right of property and control over territory is essentially a right of territorial sovereignty. The counsel cited the works of Sohwarzenberger (International Law 1945, vol. 1, p. 79), Charles Cheney Hyde (International Law, 2nd revised edition, vol. I, p. 319) and Oppenheim (International Law, 8th ed., vol. I, p. 545) to support the contention that the acquisition of territory by a state necessarily means the acquisition of sovereignty over that territory. On that basis, the counsel argued that the Dominion of India had assumed sovereignty over Junagadh on 9 November 1947, because, in his view, exercising control over a particular territory amounted to exercising sovereignty over it. The Court held that those doctrinal observations did not resolve the issue before it. It explained that where the acquisition of new territory is a gradual process, a clear distinction must be drawn between de facto exercise of control and de jure assumption of sovereignty. The Court framed the problem as one of determining when the act of State was complete – that is, when the de jure assumption of sovereign powers by the new sovereign over the acquired territory actually occurred. This, the Court said, was essentially a question of state succession as understood in international law, involving the succession of international persons. Such succession occurs when one or more international persons replace another as a result of changes in the latter’s condition, and may be either universal or partial. Applying this principle, the Court observed that as long as Junagadh continued to exist as a separate State, no succession had taken place. Consequently, even though the Dominion of India had taken over the administration of Junagadh and exercised control over it, it had not assumed de jure sovereignty. Therefore, the act of State by the Dominion had not terminated until the formal integration of Junagadh into the United State of Saurashtra, which the Court later identified as occurring on 20 January 1949.

It was held that the Dominion of India acquired de jure sovereignty over Junagadh on 20 January 1949 when Junagadh was merged into the United State of Saurashtra. The judgment then turned to two authorities on which the respondent’s counsel relied, namely In re Southern Rhodesia (1) and Sammut v. Strickland (2). In In re Southern Rhodesia the court observed, in connection with the conquest of certain territories in Southern Rhodesia, that a formal proclamation of annexation is not indispensable for the Crown to become the complete owner of the territory as any sovereign may become owner of lands publici juris; rather, a manifestation of the Crown’s intention through Orders in Council concerning the lands and their administration suffices for that purpose. The observation was made in a context that involved a relationship between sovereign and subject rather than a dispute between two states. Lord Sumner was quoted as saying, “No doubt a proclamation annexing a conquered territory is a well‑understood mode in which a conquering power announces its will urbi et orbi. It has all the advantages (and the disadvantages) of publicity and precision. But it is only declaratory of a state of fact. In itself it is no more indispensable than a declaration of war at the commencement of hostilities. As between state and state special authority may attach to this formal manner of announcing the exercise of sovereign rights, but the present question does not arise between state and state. It is one between sovereign and subject. The Crown has not assented to any legislative act by which the declaration of its will has been restricted to one definite form or confined within particular limits of ceremonial or occasion. The Crown has not bound itself towards its subjects to determine its choice upon a conquest either out of hand or once and for all. If Her Majesty Queen Victoria was pleased to exercise her rights, when Lobengula was defeated by her and her subjects, as to one part of the dominions in 1894 and as to another part not until 1898, if she was pleased to do so by public acts of State which indicate the same election and confer the same supreme rights of disposition over his conquered realm as annexation would have done, it is not for one of her subjects to challenge her policy or to dispute her manner of giving effect to it.” The Court concluded that these observations do not support the respondent’s contention that any administrative control exercised in acquired territory automatically signals an assumption of sovereignty by the incoming state, thereby ending the act of state. Rather, Lord Sumner’s remarks merely demonstrate that the Crown’s intention regarding conquered territory may be expressed in various ways, and need not be conveyed through a proclamation.

In the matter presently before the Court, the Administrator issued a proclamation that merely stated that, acting on the orders of the Government of India, he had taken over the administration of Junagadh State. The proclamation made no claim that the Dominion of India had assumed sovereign authority over the territory. The Court also examined a later decision in which one of the issues concerned the precise nature of the Crown’s title to the sovereignty of Malta. That decision attempted to distinguish between territories obtained by a formal cession from another sovereign power and territories acquired through the general consent or desire of the inhabitants. The ruling concluded that, with respect to the Crown’s prerogative power to legislate for a ceded colony by means of Letters Patent or Orders in Council, the distinction between the two modes of acquisition was immaterial. The present Court finds it difficult to perceive how that decision can assist the respondents in their present claim. It is a matter of record that the people of Junagadh expressed a desire to accede to the Dominion of India; however, no formal accession was ever effected. Subsequently, Junagadh merged into the United State of Saurashtra with the concurrence of its own people and of the Government of India. Until that merger took place, there was no cession of the territory in the sense of a transfer of sovereignty, whether or not the consent of the population was present. Consequently, the only logical conclusion that can be drawn from the facts already set out is that the Dominion of India did not assume sovereign control over Junagadh before the date of 20 January 1949. This finding disposes of the principal argument raised by the respondents, and it follows that the Court need not address the subsidiary contention concerning the rights that former subjects of the erstwhile sovereign might retain against the new sovereign.

At one stage of his submission, counsel for the respondents relied upon the view expressed by Chief Justice John Marshall in United States v. Percheman, which holds that when the inhabitants of a territory acquired by another sovereign change their allegiance and their relationship to the former sovereign is terminated, their property rights remain unaffected. Counsel argued that this principle is consistent with contemporary international practice and has been affirmed by the Permanent Court of International Justice in its advisory opinion on the settlers of German origin in territory transferred by Germany to Poland (Series B, No. 6, pp. 35‑36). Nevertheless, counsel also acknowledged that this Court has accepted the position articulated by the English courts in Cook v. Sprigg and the subsequent cases that follow it. That position is based on the doctrine that an acquisition of territory by conquest, cession, or annexation constitutes an act of state, and that municipal courts lack jurisdiction to grant remedies for actions arising out of such an act. The position has been reiterated in cases such as M/s Dalmia Dadri Cement Co. Ltd. v. The Commissioner of Income‑Tax and State of Saurashtra v. Memon Haji Ismail Haji. Accordingly, counsel endeavoured, with great effort, to establish that the act of state concerning Junagadh was completed on 9 November 1947.

In the matter before the Court, counsel cited several authorities, including a United States case reported in 1833 at volume 32 of United States Reports pages 51 and 86‑87, a decision recorded in the 1899 All India Reporter at page 572, the 1959 Supreme Court Reporter at pages 729 and 741, and a 1960 Supreme Court Reporter citation on page 537. He argued that after the relevant date in 1947, the respondents became citizens of the Dominion of India and, pursuant to section 299 of the Government of India Act, 1935, they could not be deprived of their property except by lawful authority. To support this contention, he relied on two earlier judgments of this Court, namely Thacker v. State of Saurashtra and Virendra Singh v. State of Uttar Pradesh. However, the Court had previously found that the act of State continued until the acquisition process was completed on 20 January 1949, rendering the second stage of the respondent’s argument unnecessary for consideration. Nonetheless, the Court noted that the decision in Virendra Singh v. State of Uttar Pradesh was based on special circumstances that gave rise to the Constitution of India, and therefore its reasoning could not be automatically extended to the present facts.

The Attorney‑General appearing for the appellant‑State submitted that the principle laid down in Virendra Singh could not be applied to the distinct situation in which the Government of India Act, 1935, was enacted, and that section 299 of that Act did not alter the established doctrine that municipal tribunals lack authority to grant relief for actions arising from an act of State. He further referred the Court to its earlier decision in Jagannath Agarwala v. State of Orissa, where the Court held that claims made against the State before the Constitution came into force, and subsequently examined and rejected by the Government after the Constitution’s commencement, could not be entertained by municipal courts unless the now sovereign expressly or impliedly accepted those claims. The Court considered it unnecessary to rule on these submissions because, before the Dominion of India acquired de jure sovereignty over Junagadh, the respondents could not invoke the protections of section 299 of the Government of India Act, 1935. The relevant authorities referenced included A.I.R. 1954 S.C. 680, the 1935 Indian Court Reports at page 415, and the 1962 Supreme Court Reporter at page 205. In the appeals before the Court, the orders under scrutiny were issued by the Administrator prior to the completion of the act of State. Since the actions taken by those orders arose during the act of State, municipal tribunals possessed no jurisdiction to grant any remedy. The Court then turned to the last argument raised by the respondents, noting, as observed in State of Saurashtra v. Memon Haji Ismail Haji, that an act of State is an exercise of sovereign power directed against an alien and is neither intended nor purports to be founded upon legal authority. On behalf of the respondents, it had been contended that the Administrator purported…

In the matter before the Court, the respondents argued that the appellant‑State could not rely on the doctrine of an act of State because the Administrator had purported to cancel or resume the land grants that were the subject of the appeals in accordance with law. The Court found no merit in that contention. Counsel for the respondents in Civil Appeal No 349 of 1958 directed the Court’s attention to the pleadings, especially paragraph 8 of the written statement filed on behalf of the appellant‑State. That paragraph asserted that the resumption order dated 8 January 1949 was lawful and that the Administrator possessed the authority to resume the inam grant. On the basis of this claim, the respondents contended that because the Administrator acted under legal authority, the appellant‑State could not plead an act of State. The Court also noted paragraph 17 of the written statement, where the appellant‑State specifically pleaded that the plaintiff‑respondent had no right to institute suit against the Government. At trial, a distinct issue was framed concerning whether the court had jurisdiction to hear the suit, and the argument presented was that the resumption order constituted an act of State and was therefore non‑justiciable in municipal courts. Nevertheless, the appellant‑State also advanced, as an alternative, the contention that the resumption order was justified by the rules then in force in the State of Junagadh. The trial court rejected the notion that the order was an act of State and also held that it was not justified by the applicable Junagadh rules. Consequently, the Court concluded that the appellant‑State had indeed pleaded an act of State and that it was open to it to raise that plea.

The High Court similarly entertained the act of State plea on behalf of the appellant‑State, but rejected it on the basis of the decision in State of Saurashtra v Memon Haji Ismail Haji Valimamad (1). That decision, as the Court earlier observed, had been overruled by the present Court in State of Saurashtra v Memon Haji Ismail Haii. Counsel for the respondents then referred to an order dated 9 February 1949, which stated that inam grants were resumable at the pleasure of the Government and consequently the orders of 8 January 1949 could not be cancelled. The order of 9 February 1949 appeared to have been issued in response to a representation made by the plaintiffs‑respondents. The Court read the two orders—those of 8 January 1949 and 9 February 1949—together and observed that, if read in this manner, it became evident that the 8 January 1949 order was issued by the Administrator not under any statutory authority but as an act of State.

In this matter, counsel for the respondents referred to the decision in Forester v. The Secretary of State for India (3). That case involved a construction by the Privy Council of a treaty concluded in August 1805 between the British Government and Begum Sumroo. The Council held that the Begum was not a sovereign princess but a jagirdar who was obliged to maintain a body of troops for the sovereign’s service. On that basis, the Privy Council concluded that the British Government’s resumption of the Begum’s lands after her death was not an act of State but an act performed under a legal title. The Court in the present proceedings does not accept that the principle arising from Forester is applicable to the facts before it. The Court also considered the authority in Vejesingji ji Joravarsingji v. Secretary of State for India (1), where Lord Dunedin observed that a pleading need not use the specific phrase “act of State”; once a cession of territory is admitted, the burden shifts to the plaintiffs‑respondents to demonstrate that the right they assert was expressly or tacitly recognised by the new sovereign. Where such recognition is absent and has not been pleaded, the municipal courts lack jurisdiction to grant any relief. Accordingly, the courts below were not entitled to examine the Nawab’s power to resume or alter the grants, nor to determine whether similar powers were inherited by the Dominion Government or its agents. Because the resumption constituted an act of State, it was not justiciable in the municipal courts, even if the act were arbitrary. Consequently, the Court concluded that the lower courts erred in holding the suits maintainable and in assessing their merits. The appellant‑State is therefore entitled to succeed on the ground that the Administrator’s orders of resumption were made in the exercise of a sovereign act of State and are not subject to judicial review in the municipal courts. The appeals are accordingly allowed, the suits are dismissed, and costs are awarded throughout. A single hearing fee will be charged for the hearing in this Court.

Justice Mudholkar concurs that the appeals should be allowed, but wishes to briefly set out the broader factual context common to all the appeals. The respondents possessed certain properties in the area now forming part of the State of Gujarat, which had formerly been the princely State of Junagadh, by virtue of grants made by the ruler of that State. Following India’s attainment of independence on 15 August 1947, the suzerainty that the British Crown had exercised over Junagadh terminated, rendering the State fully sovereign, as provided by the Indian Independence Act. This historical background is essential to understand the legal issues that have arisen concerning the disposition of the respondents’ property rights after the accession and integration of Junagadh into the Indian Union.

Shortly after the ruler of Junagadh departed for Pakistan, the state was left without effective leadership and its administration fell into disorder. At the invitation of the people of the territory, the Government of India decided to intervene and, on 9 November 1917, the Regional Commissioner for Western India and Gujarat States Region formally assumed the administration of Junagadh, issuing a proclamation that declared the takeover effective from that date. Five days later, on 14 November 1947, the Commissioner appointed an Administrator to manage the territory. The Administrator subsequently issued several orders on different days that rescinded the land grants previously given to the respondents and removed them from possession of the property. After the Administrator had acted, the Government of India approved the integration of Junagadh with the United State of Saurashtra, which took place on 20 January 1949, and the Administrator ceased to exercise any functions from that day onward. Following the integration, the respondents challenged the validity of the rescinded grants and their dispossession by filing suits for possession of the lands, arguing that the executive could not deprive them of property after the state had become part of India. They maintained that the Dominion of India’s assumption of administration on 9 November 1947 amounted to an assumption of sovereignty, that the residents thus became Indian citizens on that date, and that consequently no act of state such as the resumption of their lands could lawfully be committed against them by the Indian Dominion. The appellants, on the other hand, contended that the dispossession was an act of state and therefore beyond the jurisdiction of municipal courts, which could not grant the relief claimed by the respondents. The High Court of Saurashtra accepted the respondents’ plea, relying on the decision in State of Saurashtra v. Memon Haji Ismail Haji Valimamd. The present appeals arise from that judgment. The Attorney‑General appearing for the appellants submitted that the Supreme Court had reversed the earlier decision in State of Saurashtra v. Memon Haji Ismail Haji, and therefore the appeals should be allowed. In the later Supreme Court case, it was held that the Indian Dominion had merely assumed administration of Junagadh on 9 November 1947 at the request of the ruler’s council and did not formally annex the territory until 20 January 1949. Mr Pathak argued that because the respondents were not parties to the Memon Haji decision, they were not bound by the finding that annexation occurred on 20 January 1949. The Court considered that whether annexation took place on that date or earlier would make little difference to the outcome of the present appeals. Similarly, the Court found that the question of whether the Extra‑Provincial Jurisdiction Act applied to the Administrator’s orders, or whether those orders represented a display of sovereignty, would not affect the result.

In this case, the Court observed that the argument advanced by counsel for the respondents regarding the effect of the date of annexation would not alter the legal outcome. The Court referred to a long series of precedents beginning with Cook v. Spriggs and extending to Asrar Ahmed v. Durgah Committee, Ajmer, in which the Privy Council had explained the legal position of a displaced sovereign in relation to the new sovereign. The Court quoted the passage from Lord Dunedin’s judgment in Vajesinghji v. Secretary of State for India, which stated that when a territory is acquired by a sovereign State for the first time, the acquisition constitutes an act of State regardless of the manner in which it is effected—whether by conquest, treaty‑based cession, or occupation of previously unoccupied land. The passage further explained that any inhabitant of the acquired territory could invoke before the municipal courts created by the new sovereign only those rights that the new sovereign, through its officers, chose to recognise. Rights that existed under the previous ruler did not automatically endure, and even a treaty provision promising certain rights to the inhabitants did not give those inhabitants a title to enforce the provision in the municipal courts; the right of enforcement remained with the high contracting parties.

The Court noted that this principle had been accepted by this Court in M/s. Dalmia Dadri Cement Co., Ltd. v. Commissioner of Income‑Tax and had subsequently been relied upon in State of Saurashtra v. Memon Haji Ismail Haji and more recently in Jagannath Aggarwala v. The State of Orissa. Consequently, even if, on the respondents’ own submissions, the territory of Junagadh was deemed to have been annexed by the Indian Dominion when the Dominion assumed administration and its residents consequently became citizens of India, the respondents could claim before the municipal courts of the new sovereign only those rights that the Indian Dominion elected to recognise. The respondents alleged that they were grantees of the former Ruler of Junagadh, but the Court held that such grants conferred no enforceable right in the courts of the present sovereign unless they had been expressly recognised by that sovereign. The burden of proving such recognition rested on the respondents.

Upon reviewing the orders issued by the Administrator, the Court found that, far from recognising the respondents’ grants, the Administrator effectively repudiated them. Although the Administrator’s orders appeared to resume the grants in form, their substance amounted to a clear and unequivocal declaration that the rights claimed by the respondents, based on the grants made by the former Ruler, were not recognised by the new sovereign. The Court concluded that the grants did not survive the change of sovereignty and that the respondents could not obtain any redress in the municipal courts of the Indian Dominion because the necessary recognition of their rights by the Dominion had been absent.

The Court observed that the grants issued by the former ruler were not recognized by the new sovereign. It held that the act of either recognizing or refusing to recognize the rights of former alien grantees, who possessed no legally enforceable rights, could not be characterized as an act of state, because those rights had already vested in the Indian Dominion at the moment it occupied the territory of Junagadh. The Court further explained that the right to retain possession depended upon recognition by the Dominion of India; by dispossessing the respondents, the Dominion exercised its discretion and declined to recognise their rights. Relying on a principle previously adopted by this Court, it concluded that the respondents were disqualified from obtaining any redress from a court of the Indian Dominion, and, after the Constitution came into force, from any court of the Union of India, because their rights had not been recognised by either the Dominion or the Union. The Court then turned to another argument raised by counsel for the respondents. Counsel contended that the Extra‑Provincial Jurisdiction Act had been applied to Junagadh, thereby continuing the local laws then in force, and that the Alienation Settlement Act, as one of those laws, conferred rights enforceable against the ruler. According to counsel, by permitting this law to continue, the Dominion of India must be deemed to have recognised the respondents’ rights under the grants. The Court noted that, to consider this contention, the respondents needed to produce the order issued by the Dominion of India under section 4 of the Extra‑Provincial Jurisdiction Act, 1947, which alone authorised the Dominion to prescribe the laws applicable in territories over which it had assumed sovereignty or administrative control. Likewise, the respondents were required to produce the Alienation Settlement Act of Junagadh. In the absence of these documents, the Court stated that it could not entertain the argument. Counsel further argued that, when sovereignty was assumed on 9 November 1947, the residents of Junagadh became citizens of the Indian Dominion and were therefore entitled to the protection of section 299(1) of the Government of India Act, 1935, which provides that no person shall be deprived of his property save by authority of law. The Court explained that section 299(1) safeguards a person’s right to retain property that he possessed at the time the provision became applicable to him; it does not create any new property right, but merely cautions the State against depriving a person of his property by mere executive action. To determine whether this provision had been violated, the Court said it must first examine the existence and nature of the rights possessed by the respondents on 9 November 1947, the moment when the Dominion of India assumed administration of Junagadh territory, which amounted to an assumption of sovereignty. The respondents’ rights derived from grants made by the former ruler, and, although it may be that, according to principles of international law…

In this matter, the Court explained that the grant holders’ rights could not be altered simply because a new sovereign assumed authority, and that no local court possessed the power to compel the new sovereign to honour those rights. The Court quoted the observation of Justice Venkatarama Iyer, who had delivered the judgment of this Court in Dalmia Dadri Cement Co., Ltd. v. Commissioner of Income‑Tax (1959) S.C.R. 729, 741, stating that it was well settled that, under the new constitutional arrangement, the residents did not retain the rights they had enjoyed as subjects of the former sovereign. Instead, as subjects of the new sovereign, they were entitled only to those rights that the new sovereign chose to grant or recognise. The Court further referred to a decision of the Privy Council in Secretary of State for India v. Bai Rajbai (1915) L.R. 42 I.A. 229, which observed that the relationship the individuals had with their native sovereign before the cession and the legal rights that arose from that relationship were, except for one aspect, completely irrelevant. The Privy Council held that the individuals could not continue to assert under the new regime any legal rights that might have existed under the former sovereign; the only enforceable rights they could claim against the new sovereign were those expressly or impliedly conferred by the new sovereign, either through agreement or legislation. Accordingly, the Court reasoned that before the respondents could invoke the protection afforded by section 299(1) of the Constitution Act 1935, they first had to demonstrate that on 9 November 1947, or at any later time, they possessed legally enforceable rights in respect of the properties in question against the Dominion of India. Such a demonstration could be made only by showing that the Dominion of India had recognised the pre‑existing rights that the respondents claimed to hold. If the respondents failed to establish that recognition, the Court concluded that they possessed no legally enforceable rights against the Dominion of India and, consequently, that section 299(1) of the Constitution Act 1935 provided them with no protection. The Court reiterated that section 299(1) did not create any new property rights; it merely protected rights that a person already possessed. Any right to property that existed at the relevant time was the only right that could be shielded by the provision.