Rajkumar Narsingh Pratap Singh Deo vs State Of Orissa And Anr

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 133 1963

Decision Date: 9 March 1964

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

In this decision, the Supreme Court recorded that the petition was brought by Rajkumar Narsingh Pratap Singh Deo against the State of Orissa and another party. The judgment was delivered on 9 March 1964. The bench was composed of Chief Justice P B Gajendragadkar, Justice K N Wanchoo, Justice J C Shah, Justice N Rajagopala Ayyangar and Justice S M Sikri. The case was cited as 1964 AIR 1793, 1964 SCR (7) 112 and appeared in subsequent citator references such as R 1964 SC 1903 (17), R 1966 SC 704 (5,10), R 1971 SC 846 (9), APL 1971 SC 910 (5), R 1977 SC 629 (14) and R 1987 SC 82 (7). The matter concerned a Khorposh allowance that had been granted by a sanad issued by the ruler of Dhenkanal State to his younger brother, the appellant. The grant comprised certain lands and a maintenance allowance and was made under the customary law of the state. Following the merger of Dhenkanal State into the Dominion of India, which became effective on 1 January 1948, the Government of Orissa assumed responsibility for the administration of the former state and subsequently discontinued the cash component of the allowance. The appellant contested the validity of the order of discontinuance by filing a suit in the Court of Subordinate Judge, which dismissed the suit. On appeal to the Supreme Court, counsel for the appellant argued that the sanad issued by an absolute monarch constituted law, that it continued to have effect under Articles 366(10) and 372(1) of the Constitution of India, and that clause 4(b) of Order 31 of 1948, issued by the Government of Orissa under the power delegated by Section 3(2) of the Extra‑Foreign Jurisdiction Act, 1947, supported the continuation of the allowance.

The Court held that it was incorrect to assert that, when dealing with a grant made by an absolute monarch, any inquiry into whether the grant resulted from an executive or a legislative act was wholly irrelevant. The Court clarified that it had not established any rigid rule rendering the long‑standing jurisprudential distinction between legislative and executive acts inapplicable to such grants. In reaching its conclusion, the Court considered a range of authorities, including Ameer‑un Nissa Begum v. Mahboob Begum, A.I.R. 1955 S.C. 352; Director of Endowments, Government of Hyderabad v. Akram Ali, A.T.R. 1956 S.C. 60; Madhaorao Phalke v. State of Madhya Bharat, [1961] 1 S.C.R. 957; Promode Chandra Deb v. State of Orissa, [1962] Supp. 1 S.C.R. 405; Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, [1964] 1 S.C.R. 561; Maharaja Shree Umaid Mills Ltd. v. Union of India, A.I.R. 1963 S.C. 953; and State of Gujarat v. Vora Fiddali Badruddin Nithibarwala, [1964] 6 S.C.R. 461. The Court explained that, in such an enquiry, it was necessary to examine relevant factors including the nature of the order, its scope and

In this case the Court examined the nature of the Sanad issued to the appellant and concluded that the instrument contained no legislative component; rather, it was a pure gift given according to the family’s custom and the customary law of the State. Accordingly, the Sanad was characterised as an executive act performed by the Ruler, reflecting his personal or customary duty, but it did not create any law. Because the Sanad represented an executive act, the Court held that a successor Ruler could modify or revoke it by a subsequent executive act. The Court further observed that the termination of the monthly cash allowance could not disturb the continuance of the customary law protected by clause 4(b) of the Order of 1948 and by Article 372 of the Constitution, and that the argument that payment of the allowance continued after the merger could not invalidate the cessation of the allowance.

The judgment was entered in Civil Appeal No 133 of 1963, an appeal from the Orissa High Court’s decree dated 17 November 1960 in First Appeal No 45 of 1955. Counsel for the appellant included senior advocates, while the respondents were represented by senior government counsel. The appeal was heard on 9 March 1964, and Chief Justice Gajendragadkar delivered the judgment. The principal legal issue raised was whether the Sanad granted on 1 March 1931 by the appellant’s elder brother, the then Ruler of Dhenkanal State, constituted “existing law” under Article 372 of the Constitution read with clause 4(b) of Order 31 of 1948 issued by the State of Orissa on 1 January 1948. The factual backdrop involved the merger of the independent State of Dhenkanal with the Province of Orissa following a Merger Agreement signed on 15 December 1947, which became effective on 1 January 1948. The agreement transferred the whole administration of Dhenkanal to Orissa under the authority granted by Section 3(2) of the Extra‑Foreign Jurisdiction Act, 1947. After the Sanad was issued, the appellant received a monthly allowance of Rs 5001 from the Dhenkanal District Treasury based on a permanent pay order issued by the Ruler. This allowance was discontinued by the State of Orissa on 1 May 1949; the appellant’s numerous representations to the State authorities seeking reversal were rejected, prompting him to file the present suit on 26 September 1951 in the subordinate court of Dhenkanal, alleging the illegality of the discontinuation and seeking appropriate relief.

In 1951 the appellant instituted a suit before the Subordinate Judge of Dhenkanal, contending that the termination of his pension by the respondent was unlawful and seeking the appropriate reliefs. The present appeal arose from that suit. The appellant argued that, within his family, a long‑standing custom granted junior members a right to receive sufficient maintenance that reflected the family’s status. He maintained that this custom had been formally recognised in Dhenkanal and had been given the force of customary law by the State. According to the appellant, members of the Royal Family were traditionally provided with both lands and cash allowances for their upkeep. The cash allowances, known as Kharposh allowances, were drawn from the revenues of the former State of Dhenkanal. The appellant asserted that the Sanad issued by the Ruler of Dhenkanal to him was a product of this customary law. By virtue of that Sanad, he received a grant of certain lands and a monthly cash allowance of five thousand and one rupees for the duration of his life. He complained that the respondent had halted the payment of this allowance, an act he described as illegal and unconstitutional. To support his claim that the respondent was obligated to continue the allowance, the appellant pleaded that the grant constituted a law within the meaning of Article 372 of the Constitution and therefore could not be discontinued. He further alleged that, following the merger of Dhenkanal with Orissa, the respondent had recognised his right to the grant and had acted upon it, which, in his view, justified an injunction restraining the respondent from further interruption of the payment. Various additional pleas were also advanced by the appellant, but they are not essential to the issues presently before the Court.

The respondent repudiated all of the appellant’s contentions. It argued that, given the character of the grant relied upon by the appellant, the respondent possessed the authority to discontinue it. The respondent contended that the grant did not attain the status of law under Article 372, and that, just as the Ruler could have created the grant in 1931 by an executive act, the respondent, as the lawful successor of the Ruler, could likewise terminate it by a comparable executive act. Moreover, the respondent denied that it had ever recognised or agreed to continue the cash allowance, indicating that the appellant’s claim of such recognition was unfounded. Both the learned trial judge who heard the case and the High Court of Orissa, where the appellant pursued an appeal, rejected the appellant’s arguments in the main. Consequently, the appellant’s suit was dismissed. After that dismissal, the appellant obtained a certificate from the High Court, which enabled him to bring the present appeal before this Court.

Having obtained a certificate from the High Court, the appellant approached this Court in appeal, relying on that certificate as the basis for his petition. The principal argument presented by counsel for the appellant, Mr. Setalvad, centered on the contention that the Sanad on which the appellant’s claim rested constituted law. He explained that at the time the Sanad was granted, the Ruler of Dhenkanal exercised absolute sovereignty, possessing full legislative, judicial and executive authority, and that any order issued by such a sovereign necessarily possessed the character of law. According to counsel, distinguishing between legislative and executive or administrative orders issued by an absolute monarch was unnecessary because every binding order of the Ruler was, in effect, law, and the Sanad in question fell within that category. To support this position, counsel referred to the definition of “existing law” provided in Article 366(10) of the Constitution, which described existing law as any law, ordinance, order, bye‑law, rule or regulation made before the Constitution’s commencement by any legislature, authority or person empowered to make such enactments. Relying on that definition, counsel also invoked Article 372(1), which mandates the continuance of existing laws unless they are altered, repealed or amended by a competent legislature or other competent authority, subject to the Constitution’s other provisions. He further asserted that these constitutional provisions applied to the present case through clause 4(b) of Order 31 of 1948, issued by the respondent on 1 January 1948. Counsel then turned to the Extra‑Foreign Jurisdiction Act, noting that Section 3(1) granted the Central Government very wide powers to exercise extra‑provincial jurisdiction in any manner it deemed appropriate, and that Section 3(2) authorized the Central Government to delegate such jurisdiction to any officer or authority as it saw fit. To illustrate the breadth of those powers, counsel highlighted Section 4, which empowered the Central Government, by notification in the Official Gazette, to issue any orders it considered expedient for the effective exercise of its extra‑foreign jurisdiction. Section 4(2) enumerated the categories of orders the Central Government could pass, ranging from administrative to substantive measures, thereby demonstrating the extensive scope of authority that could be employed in the interests of proper governance of the areas to which the Act applied.

In this case the Court explained that the purpose of the provisions was to ensure proper governance of the territories to which the Act applied. According to section 3(2) of the Extra‑Provincial Jurisdiction Act, the Central Government delegated its authority to the Province of Orissa for the states that had merged with it. Acting under that delegated authority, the Province of Orissa, which is now the respondent, issued Order 31 of 1948. Clause 4 of that Order addressed the question of which laws would apply to the areas that were merging. Sub‑clause 4(a) identified the statutes listed in the first column of the Schedule annexed to the Order and made those statutes applicable as indicated. Sub‑clause 4(b) stipulated that for any matters not covered by the statutes specified in sub‑para (a), all laws that were in force in any of the Orissa states before the Order came into effect—whether substantive or procedural, whether derived from custom, usage, or statute—would, subject to the terms of the Order, continue to remain in force until they were altered or amended by an order issued under the Extra‑Provincial Jurisdiction Act, 1947. The Court noted that a proviso attached to this sub‑clause existed, but it was unnecessary to discuss its content.

The argument presented by the appellant was that, by virtue of clause 4(b), the customary law that existed in the State of Dhenkanal before its merger continued to operate as law in Dhenkanal and remained operative because it had never been repealed or amended. The appellant further contended that the Sanad issued in his favour, being law according to his case, could not be set aside by the respondent merely through an executive order. The appellant maintained that the respondent could only lawfully terminate the cash allowance by enacting a law to that effect or by issuing an order under clause 4(b) of the Order. This line of reasoning was advanced by counsel for the appellant, identified as Mr Setalvad. The Court observed that the fundamental premise of Mr Setalvad’s argument was unsound. That premise assumed that in a realm ruled by an absolute monarch there is no distinction between executive and legislative orders, meaning that every order issued by such a monarch is automatically binding without regard to its character. While it is true that an absolute monarch possesses legislative, executive, and judicial powers and is the source of all those powers, the Court emphasized that this does not erase the doctrinal differences between those powers, even though, for practical purposes, distinguishing the character of an order may sometimes appear to have little practical effect.

The Court observed that although an absolute monarch may possess legislative, executive and judicial authority in the same person, this concentration of power does not erase the inherent differences in the nature of each power. The jurisprudential distinction that separates legislative authority from executive authority continues to exist, even if, for practical purposes, analysing the precise character of a particular order may appear to have limited usefulness. The Court emphasized that the existence of an absolute monarch does not render the fundamental principles of jurisprudence, which differentiate among legislative, executive and judicial powers, inapplicable within his realm. A meticulous examination of any order issued by an absolute monarch would enable a jurist to determine whether the authority exercised in that specific instance is legislative, executive or judicial, and the conclusion reached on that basis would remain correct and reliable. Accordingly, the Court indicated that this analytical approach must be applied when considering whether the grant at issue in the present case qualifies as a law within the meaning of Article 372 and clause 4(b) of Order 31 of 1948; consequently, it is not tenable to argue that, in the context of an absolute monarch, the branch of jurisprudence that distinguishes among the three categories of power becomes wholly irrelevant. In addressing this aspect, the Court found it unnecessary to engage in a detailed theoretical discussion on what separates a law from an executive order, because the matter before the Court was limited to assessing, by reference to the character, provisions, context and overall setting of the order, whether the order in question should be classified as legislative or executive. While acknowledging that scholars may find it difficult to formulate a precise definition that separates law from executive orders, the Court noted that the essential features of law are well recognised. Broadly speaking, a law constitutes a body of rules established to determine legal rights and obligations that courts acknowledge and enforce. In contrast, a grant differs from a law because, in a grant, both the grantor and the grantee mutually agree to its creation and acceptance, whereas a law does not depend on such concurrence. In the situation of an absolute monarch, the Court explained, the monarch’s command operates as law that must be obeyed by the citizens regardless of their personal agreement. Consequently, the Court was inclined to reject Mr Setalvad’s unqualified contention that, when dealing with a grant made by an absolute monarch, it is irrelevant to examine whether the grant originates from an executive or a legislative act. The Court further rejected the proposition, advanced by Mr Setalvad, that every act or order of an absolute monarch automatically becomes law, irrespective of its character.

In this case the Court observed that an order or decree issued by an absolute monarch may sometimes concern only the monarch’s personal matters and may have no effect on the public at large. Consequently the Court held that it was inappropriate to disregard the legal distinction between orders that are judicial, executive or legislative, or that relate solely to individual affairs, even when such orders are issued by an absolute monarch. Counsel for the petitioner, relying heavily on certain decisions of this Court, urged that the distinction was irrelevant. The Court therefore examined those decisions. The first decision relied upon was Ameer‑un‑Nissa Begum v. Mahboob Begum (1). In that case the Court was asked to consider the validity of a firman issued by the Nizam of Hyderabad on 19 February 1939, which created a Special Commission to investigate a succession dispute concerning a deceased Nawab and to submit a report to the Nizam. The question presented was whether the firman was issued in the exercise of the Nizam’s legislative authority or his judicial authority. Chief Justice Mukherjea, speaking for the Court, held that the Nizam possessed the powers of the supreme legislature, the supreme judiciary and the supreme executive, and that no constitutional limits restrained his authority in any of those capacities. He further stated that a firman represented the sovereign will of the Nizam and was binding in the same manner as any other law; consequently, as long as a particular firman remained in force, it alone governed the rights of the parties, although the Nizam could later modify or annul it by issuing a new firman. The Court noted that the counsel appearing in that case had not argued the point of distinguishing a legislative firman from an executive one, and therefore the issue of drawing such a demarcation was neither debated before the Court nor settled as a general principle of law. The second decision cited was The Director of Endowments, Government of Hyderabad v. Akram Ali (2). In that case Justice Bose, speaking for the Court, reiterated similar observations while dealing with a firman dated 30 December 1920, which directed the Department to supervise a Dargah until the civil court examined and decided the parties’ rights. The Court observed that at the time of the firman the Nizam was an absolute sovereign in all domestic matters and that his word constituted law. The validity of that firman was not questioned; its effect was held to be the deprivation of the respondent’s claim pending the court’s enquiry.

The Court observed that the Firman removed the respondent’s right to possession as well as the rights of every other claimant while the matter remained under enquiry. In the present case, just as in the earlier case of Ameer‑un‑Nissa Begum (1), the specific issue was not raised before the Court, and consequently the observations made were not intended to establish a sweeping legal principle as alleged by counsel.

The discussion then turned to the decision in Madhaorao Phalke v. State of Madhya Bharat (3). In that case the Court was asked to determine whether the Kalambandis issued by the Ruler of Gwalior should be regarded as law or merely as executive orders. The cited authorities included A.I.R. 1955 S.C. 352 (1) and A.I.R. 1956 S.C. 60 (2), and the full report appeared in [1961] 1 S.C.R. 957 (3). Although earlier judgments were quoted, the final ruling was not founded on any broad doctrinal premise suggested by counsel, but rather on a careful examination of the nature of the Kalambandis themselves and of other relevant considerations.

The Court noted that if counsel’s argument were correct—that the Kalambandis should automatically be treated as law simply because they were issued by an absolute monarch—there would have been no need to scrutinise their scope, the procedure by which they were made, or the purpose and effect of their scheme. Instead, the Court examined those very aspects and concluded that, given the detailed contents of the two orders and the character of the provisions they contained, it was difficult to separate them from statutes or laws. Accordingly, the orders were to be regarded as rules or regulations possessing the force of law. This conclusion was first reached by the High Court and was subsequently affirmed by the Supreme Court.

The Court therefore indicated that although the judgment repeated earlier general observations, the decisive factor was the meticulous analysis of the Kalambandis’ provisions rather than any abstract principle. In Promod Chandra Deb v. State of Orissa (1), the Court held that a grant, when read together with Order 31 of the Rules, Regulations and Privileges of Khanjadars and Khorposhdars, constituted law. Chief Justice Sinha referred to Order 31 and observed that, similar to the Kalambandis in Phalke (2), those Rules possessed the force of law and fell within the meaning of Article 372 of the Constitution. The present case does not advance the analysis beyond reproducing those general observations. Finally, in Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan (3), the Court examined whether the Firman issued by the Udaipur Darbar in 1934 was law, focusing on the scheme, provisions, scope and effect of that Firman.

In that matter, the Court examined the entire scheme of the Firman, scrutinised each provision, and considered the scope and effect of those provisions before concluding that the Firman constituted law. After reaching the conclusion that the Firman, when viewed as a whole, was law, the Court reproduced the general observations on which Mr. Setalvad relied. However, as was the case in Phalke (2), the decision was not based on any general or a priori principle; rather, it rested on a detailed examination of the Firman’s scheme and its individual provisions. (1) [1962] Supp. 1 S.C.R. 405,410. (2) [1961] 1 S.C.R. 957. (3) [1964] 1 S.C.R. 561.

Subsequently, in Maharaja Shree Umaid Mills Ltd. v. Union of India (1), a similar issue arose concerning an agreement dated 17 April 1941. The party before the Court contended that the agreement was law and relied on the earlier general observations previously cited. Justice S. K. Das, speaking for the Court, examined those observations and the circumstances in which they were made, and rejected the contention that the observations established a general rule that an absolute monarch’s legislative and executive acts could not be distinguished. Consequently, the Court held that the agreement was merely a contract—a purely executive act—not a law within the meaning of Article 372. The same perspective was recently expressed by Justices Hidayatullah, Shah and Ayyangar in the judgments they delivered in The State of Gujarat v. Vora Fiddali Badruddin Mithibarwala (2).

A careful review of the decisions cited by Mr. Setalvad therefore did not support his argument that this Court had articulated a sweeping proposition denying the relevance of the established distinction between legislative and executive acts for orders issued by absolute monarchs such as the Raja of Dhenkanal. The correct legal position, as the Court explained, is that whenever a dispute arises about whether an order of an absolute monarch is a legislative act that continues to operate under clause 4(b) of the Order, all relevant factors must be examined before reaching a conclusion. Those factors include the nature of the order, the scope and effect of its provisions, its overall setting and context, and the method employed by the ruler in promulgating legislative versus executive orders, together with any other allied considerations. Accordingly, the Court was satisfied that Mr. Setalvad was incorrect in asserting that the Sanad issued in favour of the appellant by the Raja of Dhenkanal must be treated as law without first assessing the nature of the order and its surrounding circumstances.

The Court observed that it was necessary to consider the material contained in the document and the surrounding circumstances before reaching any conclusion, and therefore it proceeded to examine the relevant facts in detail. The Court turned its attention to the Sanad, which comprises three distinct clauses. The first clause sets out the customary practice in the State of Dhenkanal whereby the Rajas would grant hereditary rights to members of their own families, and it further states that there is a clear and pressing necessity to make an adequate provision for the grantee. The clause is supported by earlier authorities, namely A.I.R. 1963 S.C. 953 and [1964] 6 S.C.R. 461. According to this clause, the grant was intended to enable the appellant to preserve his dignity as a Rajkumar of the State and to provide for himself, his family, his heirs and his descendants in a manner that is appropriate to their status. The grantor, out of love and affection for the appellant, therefore made a khanja grant comprising a monthly cash allowance of five hundred rupees for the lifetime of the appellant, together with an assignment of land measuring six thousand nine hundred forty‑two and seventy‑one‑fifths acres as described in the Schedule annexed to the Sanad. The land was granted on a hereditary basis, and the grantee was authorised to enjoy the land from one generation to the next. Although the Sanad contains further clauses that clarify the extent of the grant, the Court found it unnecessary to recite them in full. Clause two of the Sanad imposes a condition of loyalty on the grantee and on his heirs, and clause three obliges the State to bear all costs required to reclaim the granted land and to render it suitable for cultivation. The Court then held that none of the provisions of the Sanad possesses a legislative character. The Sanad does not contain any command that must be obeyed by the citizens of the State; rather, it is a pure and simple gift made by the Ruler in recognition of the family custom and the customary law of the State, which required him to maintain his junior brother. Consequently, the Court described the Sanad as a purely executive act undertaken by the Ruler to fulfil his personal and customary obligations, and it rejected the proposition that such a grant could be equated with law. While acknowledging that the grant is partly founded upon personal and customary law, the Court emphasized that no act performed by the Ruler in discharging those obligations can be treated as an order issued in the exercise of legislative power. Accordingly, the Court found no difficulty in concluding that the Sanad in question is a purely executive act and cannot be regarded as law, contrary to the contention advanced by counsel for the petitioner. The Court noted that counsel for the petitioner had subsequently argued, albeit weakly, that the obligation undertaken by the Ruler was recognised by the respondent and therefore could not be cancelled by the respondent merely through an executive act. The Court rejected that argument as lacking substance, observing that if the act by which the grant was made was indeed an executive act of the former Ruler, there is no basis for holding that the respondent, as the successor, is unable to modify or even cancel the terms of the grant by an executive act of its own.

In this case the Court observed that the grant had been issued as a purely executive act by the then Ruler of the State of Dhenkanal and therefore the argument that the terms of that grant could not be modified or that the grant could not be cancelled by an executive act of the present respondent, who was the successor of the Ruler, could not be sustained. The Court pointed out that the customary law which required the Ruler to provide maintenance for his junior brother had been carried forward by clause 4(b) of the Order of 1948 and by article 372 of the Constitution, but it clarified that the mere continuation of that customary law was distinct from a prohibition on varying the amount of maintenance fixed by the grant. The Court explained that the respondent’s decision to stop the cash allowance of five thousand rupees and one paise per month did not amount to an alteration of the law, because the grant of land covered by the Sanad remained undisturbed. Accordingly, the only effect of the respondent’s impugned action was to reduce the total maintenance allowance that had been granted to the appellant by the Ruler in 1931. The Court further stated that although the customary law obliging provision for the appellant’s maintenance continued to operate, the respondent possessed the right to decide what amount would be adequate and appropriate, and that such a decision was purely executive in nature. It would be unreasonable to contend that, because the Sanad was not a law, the amount fixed by it could not be altered by the respondent’s executive act, nor that the respondent would be required to initiate a suit to vary the amount. The Court emphasized that the customary law merely required a suitable provision for the maintenance of junior family members, and that determining what constituted an adequate provision was a factual inquiry. This inquiry had to consider factors such as the number of persons entitled to maintenance, the status of the family members, the total family income, and other existing commitments. Both Courts below had agreed that, given the relevant facts, the land grant made by the Sanad was sufficient and appropriate for the appellant’s maintenance. Apart from that, the Court saw no basis for the appellant to seriously challenge the validity of the respondent’s action in discontinuing the cash allowance. The argument that the payment had continued for some time after the merger could not sustain the appellant’s claim that the discontinuance was invalid, and, in the nature of things, the respondent’s decision was within its executive authority.

The Court observed that the respondent government could not have made a determination on whether the cash allowance should continue to be paid to the appellant without first examining the substantive merits of the appellant’s claim. It further noted that, after the merger of the relevant administrative units, a large number of similar cases required detailed scrutiny, and consequently the temporary continuation of the payment during that period did not create any legitimate basis for the appellant to dispute the legality of the ultimate decision taken by the respondent to cease the allowance. Accordingly, the Court affirmed the judgment of the High Court, although it relied on a slightly different set of reasons to reach that conclusion. The Court consequently held that the appeal was without merit, that it therefore failed, and that it should be dismissed. The Court also specified that no order as to costs would be made in this matter, and it recorded the dismissal of the appeal.