Narottam Kishore Dev Varma And Ors vs Union Of India And Another

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

Court: Supreme Court of India

Case Number: Writ Petition No. 87 of 1962

Decision Date: 6 March, 1964

Coram: P.B. Gajendragadkar, K.N. Wanchoo, J.C. Shah, N. Rajagopala Ayyangar, S.M. Sikri

In this case the Supreme Court recorded that the petitioners, identified as Narottam Kishore Dev Varma and several others, filed a writ petition on 6 March 1964 under article 32 of the Constitution of India. The petition sought to challenge the constitutional validity of section 87B of the Code of Civil Procedure, 1908, which required the consent of the Central Government before a former ruler of a princely state could be sued. The petitioners explained that they wished to sue the Maharaja of Tripura, a former Indian state that had merged with the Union, and also to implead the Union of India as a party to the suit. Their claim was based on the assertion that, as members of a joint Hindu family governed by the Dayabhaga school of Hindu law, they were entitled to receive a maintenance allowance either from the former ruler or from the Union under the family’s customary practice. When the Central Government refused to give the required consent, the petitioners approached the Supreme Court, contending that section 87B, by granting an exemption to former rulers from suit except with governmental consent, violated article 14, which guarantees equality before the law, and article 19(1)(f), which protects the right to move freely throughout the territory of India.

The Court noted that a prior decision of this Court, specifically Mohan Lal Jain v. His Highness Maharaja Shri Sawai Man Singhji [1962] 1 S.C.R. 702, had already examined the validity of section 87B and concluded that the provision could no longer be challenged on the basis of article 14. Referring to the legislative history and the historical background of section 87B, the Court observed that the special treatment given to erstwhile rulers did not amount to an unreasonable restriction on the petitioners’ fundamental rights. The provision was motivated by the objective of integrating the entire country, including former princely states, under a single central authority, and therefore it was deemed reasonable and in the public interest. Nonetheless, the Court expressed that, in light of the principle of equality before the law, it would be unreasonable to allow the section to remain applicable indefinitely for future cases. Consequently, the Court suggested that the Central Government should consider limiting the operation of section 87B to matters and transactions that occurred before 26 January 1950. The Court further indicated that the provision should not be employed to suppress legitimate claims, except where those claims are evidently far‑fetched or frivolous, and that consent to sue should ordinarily, if not automatically, be granted where a genuine dispute appears reasonably triable before a court.

In this case, the Court recorded that the writ petition, filed under article 32 of the Constitution of India, was presented as original jurisdiction writ petition number 87 of 1962. The petition sought the enforcement of fundamental rights and was argued on behalf of the eight petitioners by counsel S. S. Shukla. Respondent No 1 was represented by counsel N. S. Bindra and R. H. Dhebar, while respondent No 2 was represented by counsel M. C. Setalvad and D. N. Mukherjee. The judgment was delivered on 6 March 1964 by Chief Justice Gajendragadkar.

The petitioners challenged the validity of section 87B of the Code of Civil Procedure, contending that the provision unjustly restricted their right to approach a court of law. They asserted that they, together with respondent No 2 – His Highness Maharaja Kirit Vikram Kishore Deb Varman – were members of a joint Hindu family governed by the Dayabhaga school of Hindu law. According to a long‑standing family custom, they claimed, the Raj and the Zamindari estates of the family were held by a single individual, while the remaining family members were entitled to maintenance based on their status within the family and retained the right of succession to the Raj and the Zamindari estates under the prevailing general rule of succession, a rule that was not inconsistent with the custom.

The petitioners explained that the head of the family, traditionally called the Chief, was selected from among the members of the Ruling Deb Barman family and was installed on the Gaddi or throne. They further alleged that the ruler, once chosen and installed, held the State and the Zamindari estates as a life tenant, subject only to the ordinary charges for the maintenance of the members of the ruling family. Over time, however, the petitioners claimed, the rulers unilaterally fixed the maintenance allowances of the family members without regard to their status or legitimate needs. This practice, they said, generated discontent and led to a serious agitation during the lifetime of the late Maharaja Bir Bikram.

In response to the agitation, the petitioners narrated that a committee was appointed on 20 June 1949, during the regency of Her Highness Rajmata while the last ruler, Maharaja Kirit Bikram, was a minor. The committee’s purpose was to examine the question of allowances payable to the members of the ruling family. Before the committee could submit its report, the State of Tripura merged with the Union of India and was constituted as a separate province under the authority of a Chief Commissioner. After the merger, the then‑Chief Commissioner, Mr Hazra, submitted a proposal to the Ministry of States on 12 April 1951, recommending a revision of the allowances paid to the maintenance‑holders. The Ministry of States declined to accept the proposal and refused any increase in the total expenditure on such allowances. Consequently, an order effecting this refusal was issued on 23 May 1951. The judgment further noted that subsequent developments regarding the maintenance allowances were addressed by the then‑Chief Commissioner, but those details were not included in the present excerpt.

According to the record, the officiating Chief Commissioner, Major Chatterjee, discontinued the maintenance allowances that were being paid to certain maintenance‑holders without any justification. This action prompted the formation of another Committee to examine the matter, but the Committee never became operational, and as a result the condition of most maintenance‑holders deteriorated progressively. Consequently the eight present petitioners seek to bring a suit against respondent No. 2 for appropriate relief. They also wish to implead the Union of India because they assert that either the Ruler or the Union of India is liable to provide them with suitable and adequate maintenance allowance. Before a suit can be instituted in a competent court against respondent No. 2, the petitioners must obtain prior sanction from the Union Government pursuant to section 87B of the Code of Civil Procedure, since respondent No. 2 is a Ruler of a former Indian State within the meaning of that provision. The petitioners applied for such sanction, but the Central Government refused their request. The refusal led the petitioners to file the present petition challenging the validity of section 87B. They contend that the provision is ultra vires because it violates Articles 14 and 19(1)(f) of the Constitution; therefore the condition precedent that requires prior government sanction before filing a suit against a former State Ruler is invalid and inoperative. This contention forms the basis of the present writ petition. At the hearing, counsel for the petitioners acknowledged that the challenge to the validity of section 87B on the ground that it breaches Article 14 had already been rejected by a recent decision of this Court in Mohan Lal Jain v. His Highness Maharaja Shri Sawai Man Singh Ji. Counsel then argued that certain aspects of the issue had not been fully addressed in that decision and sought a reconsideration. The Court refused to permit that argument, holding that the earlier decision conclusively settled the point and that it would not be reasonable to reopen it. The Court noted that the present argument focuses on the claim that section 87B is invalid because it infringes Article 19(1)(f), given that the earlier case already repelled the challenge under Article 14. Consequently the Court must now consider the challenge based on Article 19(1)(f). To do so, it will be necessary to examine both the historical context and the legislative background of section 87B. Section 87B(1) provides that the provisions of section 85 and of sub‑sections (1) and (3) of section 86 shall apply to the Rulers of any former Indian State in the same manner as they apply to the Ruler of a foreign State.

In this case the Court explained that section 87B(1) applies to a former Indian State in the same way that it applies to the ruler of a foreign State, and that section 87B(2) defines the terms “former Indian State” and “Ruler.” It was accepted as a matter of common ground that respondent number two qualifies as a ruler of a former Indian State within the meaning of that definition. To understand the operation of section 87B(1) the Court found it necessary to examine section 86, which governs suits against foreign rulers, ambassadors and envoys. Section 86(1) provides that no ruler of a foreign State may be sued in any court competent to try the suit unless the Central Government, through a Secretary, gives written consent to that effect, and the provision contains a proviso that exempts cases where tenants of immovable property sue such a ruler. Section 86(2) further explains that the consent may be granted for particular suits, for several specified suits, or for all suits of a particular class or classes, and that the consent must identify the court in which the ruler may be sued; the consent will be refused unless the Central Government is satisfied that the ruler meets one of the four conditions laid down in clauses (a) to (d). Section 86(3) bars the arrest of any foreign ruler under the Code and provides that, except with written consent of the Central Government, no decree may be executed against the property of such a ruler. Section 86(4) extends the operation of section 86 to the persons mentioned in clauses (a) to (c) of that sub‑section. Because the provisions of section 86(1) and 86(3) were made applicable to cases falling under section 87B(1), the Court held that a prior sanction from the Central Government is a condition precedent to instituting a suit against the ruler of any former Indian State. The petitioners were unable to satisfy that requirement for the suit they wish to bring against respondent number two, as the Central Government declined to grant the necessary sanction. The Court then turned to the legislative background of sections 86 and 87B, noting that before the Constitution these matters were dealt with in Part IV of the Code of Civil Procedure, which classified suits into three categories: sections 79 to 82 covered suits by or against the Crown or public officers in their official capacity; sections 83 to 87 dealt with suits by aliens and by or against foreign rulers and rulers of Indian States; and section 88 dealt with interpleader suits. After the Constitution came into force, the President made certain adaptations through the Adaptations of Laws Order, 1950, thereby retaining the protection for foreign rulers and rulers of Indian States that later gave rise to section 87B.

The Court explained that the Adaptations of Laws Order, 1950 resulted from Article 372, which preserved the protection that had been given to foreign rulers and to the rulers of Indian states. Because of this constitutional provision, section 87B was incorporated into the Code of Civil Procedure. The Court said that the petitioners’ grievance had to be examined against this legislative backdrop. It further noted that the legislative background could not be separated from the historical background embodied in Article 362. Article 362 requires that, when Parliament or a State legislature enacts a law or when the Union or a State exercises executive power, due regard must be had to any guarantee or assurance given in a covenant or agreement referred to in clause (1) of Article 291, which concerns the personal rights, privileges and dignities of a ruler of an Indian state. Those covenants and agreements had been concluded between the Central Government and the Indian princes before the complete political integration of the former Indian states into the Union of India. The Court observed that the privilege accorded to the former rulers, including their extra‑territorial status and their exemption from civil jurisdiction unless the Central Government gave its sanction, derived from those historical agreements. It was considered appropriate that the privileges claimed by foreign rulers and by the rulers of Indian states before independence should continue to operate after independence, and this reasoning led to the amendment of the Civil Procedure Code in 1951, which gave the present form to sections 86, 87, 87A and 87B. In light of this background, the Court found it difficult to accept that the petitioners could successfully challenge the validity of section 87B. Referring to the earlier decision in Mohan Lai Jain, the Court reiterated that the former rulers constitute a distinct class and that the special treatment accorded to them by the impugned provisions could not be characterized as unconstitutional discrimination. While acknowledging that there is a distinction between the former rulers and the rest of the citizens of India, the Court held that such discrimination was justified by the historical and legislative context that had been described. Consequently, the Court concluded that the restriction imposed on the petitioners’ fundamental right guaranteed by Article 19(1)(f) was not unreasonable. The restriction, the Court explained, stems from the necessity to recognise the agreements that had been entered into between the Central Government and the former rulers of Indian states and from the desirability of giving effect to the assurances that had been provided to those rulers during the negotiations that preceded the merger of the states with the Union of India.

In reaching its conclusion, the Court examined the circumstances that existed before the former Indian States were merged with the Union of India. It noted that after 15 August 1947 the events unfolded with extraordinary speed and that the negotiations undertaken by the Central Government were driven solely by the objective of uniting the entire country, including the erstwhile princely territories, under a single central authority. When these historical facts are taken into account, the Court observed that it would be difficult to hold that the specific provision in section 87B, which bars suits against the former Rulers unless the Central Government grants permission, is unreasonable or contrary to the public interest. The Court acknowledged that the restriction imposes a hardship on the petitioners, but it balanced this inconvenience against the broader considerations just discussed and found that the argument that the provision is unconstitutional could not be sustained. Before concluding the matter, the Court invited the Central Government to reflect seriously on whether it is necessary for section 87B to continue to operate prospectively in perpetuity. While the agreements concluded with the former Rulers and the assurances given to them must undoubtedly be honoured, the Court pointed out that, viewed against the fundamental principle of equality before the law, it appears incongruous for the provision to remain in force indefinitely. Protection may rightly be afforded with respect to past dealings and transactions involving the former Rulers, but the Court suggested that the Government consider whether such protection should extend to transactions occurring after 26 January 1950. Since the Constitution declares that all citizens are equal, the Court opined that it may be appropriate to limit the operation of section 87B to historical transactions, thereby avoiding a perpetual distinction between ordinary citizens and former Rulers. As time passes, the historical reasons that originally justified section 87B are likely to lose their force, and the continued inclusion of the provision in the Code of Civil Procedure could become vulnerable to serious challenge. The Court also highlighted another facet of the issue: when deciding whether to grant sanction to a person who wishes to sue a former ruler, the appropriate authority should, in general, grant such sanction unless the claim is manifestly frivolous. It is unsatisfactory under the present scheme to suppress a legitimate action against a former ruler merely because sanction under section 87B is denied, while reserving the power to refuse sanction for cases that are clearly frivolous or without merit.

The Court observed that refusing to grant sanction under section 87B could be justified only when a claim is frivolous. However, the Court emphasized that when a genuine dispute arises between an ordinary citizen and a Ruler of a former Indian State, and when such a dispute appears on its face to be capable of being adjudicated by a court, it would be neither fair nor just to bar the citizen from seeking the intervention of a competent court. The Court further stated that the authority to grant sanction should be exercised sensibly and should not be employed to suppress claims that are not unreasonable or frivolous. A sensible exercise of this power, the Court observed, would help to prevent resentment among litigants toward the artificial provision contained in section 87B. Turning to the matters before it, the Court found that, on a preliminary examination, the petitioners appeared to have a genuine grievance arising from the Central Government’s refusal to accord them sanction for obtaining a judicial determination of the dispute with respondent No. 2. The Court noted that such a grievance ordinarily falls within the domain of the Central Government’s consideration. Nonetheless, the Court held that it could not accept the petitioners’ argument that section 87B was invalid. Consequently, the Court concluded that there was no alternative but to dismiss the writ petition. In the circumstances, the Court ordered that no costs be awarded and entered a dismissal of the petition.