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(1955) 2 SCR 164 : AIR 1955 SC 540

In the Supreme Court of India

(BEFORE B.K. MUKHERJEA, C.J. AND SUDHI RANJAN DAS, N.H. BHAGWATI, T.L. VENKATARAMA
AIYAR AND SYED JAFFER I MAM, JJ.)

MAHARAJ UMEG SINGH AND OTHERS … Petitioners;

Versus
STATE OF BOMBAY AND OTHERS … Respondents.
Petitions Nos. 337 to 349, 364 to 366, 481 and 690 of 1954* , decided on April 6,
1955
Advocates who appeared in this case :
K.L. Gauba, Senior Advocate (Gopal Singh, Advocate, with him), for the Petitioners
in Petitions Nos. 337 to 343 and 481 of 1954;
K.L. Gauba, Senior Advocate (S.D. Sekhri, Advocate, with him), for the Petitioners
in Petitions Nos. 344, 446 and 349 of 1954;
K.L. Gauba, Senior Advocate (R. Patnaik and S.D. Sekhri, Advocates, with him), for
the Petitioner in Petition Nos. 345 of 1954;
K.L. Gauba, Senior Advocate (N.C. Chakravarty and S.D. Sekhri, Advocates, with
him), for the Petitioner in Petition No. 347 of 1954;
K.L. Gauba, Senior Advocate (B. Moropant and S.D. Sekhri, Advocates, with him),
for the Petitioner in Petition No. 348 of 1954;
Rajni Patel and M.S.K. Sastri, Advocates, for the Petitioner in Petition No. 364 of
1954;
Rajni Patel and I.N. Shroff, Advocates, for the Petitioners in Petitions Nos. 365 and
366 of 1954;
J.B. Dadachanji and Ravindra Narian Advocate, for the Petitioner in Petition Nos.
690 of 1954;
M.C. Setalvad, Attorney-General for India and C.K. Daphtary, Solicitor-General for
India (Porus A. Mehta and R.H. Dhebar and P.G. Gokhale, Advocate, with him), for
Respondents in all Petitions.
The Judgment of the Court was delivered by
N.H. BHAGWATI, J.— These petitions under Article 32 of the Constitution are
directed against the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953,
Bombay Act 39 of 1954 which was passed by the legislature of the State of Bombay to
abolish jagirs in the merged territories and merged areas in the State of Bombay. The
bill was passed by the legislature on 22nd September, 1953 and received the sanction
of the Upper House on 26th September, 1953. The President gave his assent to it on
13th June, 1954, and by a notification dated 15th July 1954, it was brought into effect
from 1st August, 1954. In view of the notification the petitioners filed these petitions
on 30th July, 1954 challenging the vires of the Act (hereinafter called the “impugned
Act”) and asking for the issue of appropriate writs restraining inter alia the State of
Bombay from giving effect to its provisions. On applications made to this Court on
31st July, 1954 the operation of the impugned Act was stayed pending the hearing
and final disposal of the petitions.
2. The petitioners in Petitions Nos. 337, 344, 347, and 349 of 1954 are relations of
the Ruler of the erstwhile State of Idar. The petitioners in Petitions Nos. 338 and 342
of 1954 are relations of the Ruler of the erstwhile State of Chhota Udaipur. The
petitioners in Petitions Nos. 339 and 341 are relations of the Ruler of the erstwhile
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State of Devgad Baria. The petitioner in Petition No. 343 of 1954 is a relation of the
Ruler of the erstwhile State of Rajpipla. The petitioners in Petition No. 340 of 1954 are
jagirdars of the erstwhile State of Rajpipla. The petitioner in Petition No. 348 of 1954
is a relation of the Ruler of the erstwhile State of Bansda. The petitioners in Petitions
Nos. 365 and 366 of 1954 are jagirdars of the erstwhile States of Idar and Lunawada
respectively. The petitioner in Petition No. 481 of 1954 is a relation of the Ruler of the
erstwhile State of Mohanpur. The petitioners in Petition No. 690 of 1954 are the
holders of personal inams from the erstwhile State of Rajpipla. All the petitioners
except the last claim to be hereditary jagirdars under grants made by the respective
States for the maintenance of themselves, their families and dependants and hold the
jagirs as “Jiwai Jagirs”. The holders of the personal inams in Petition No. 690 of 1954
used to pay salami to the erstwhile State of Rajpipla and are included within the
definition of “jagirdar” being holders of jagir villages within the meaning of the
definition thereof contained in the impugned Act.
3. The petitioner in Petition No. 364 of 1954 claims to be the owner of 60 villages in
the patta or territory of Moti Moree comprised in the erstwhile State of Idar as the
Bhumia or under-lord and contends that his holding does not fall within the definition
of jagir as given in the impugned Act and that therefore in any event the State of
Bombay is not entitled to enforce the impugned Act against him.
4. All these petitioners have challenged the vires of the impugned Act mainly
relying upon the agreements of merger entered into by the Rulers of the respective
States with the Dominion of India on or about 19th March, 1948 and the collateral
letters of guarantee passed by the Ministry of States in their favour on subsequent
dates, the contents of which were regarded as part of the merger agreements entered
into by them with the Dominion of India.
5. The merger agreements were in the form given in Appendix XIII to the White
Paper at p. 183:
“FORM OF MERGER AGREEMENT SIGNED BY RULERS OF GUJARAT AND DECCAN STATES
AGREEMENT MADE THIS … day of … between the Governor-General of India and the
… of … Whereas in the immediate interests of the State and its people, the … of … is
desirous that the administration of the State should be integrated as early as
possible with that of the Province of … in such manner as the Government of the
Dominion of India may think fit; It is hereby agreed as follows:
ARTICLE 1.
The… of … hereby cedes to the Dominion Government full and exclusive
authority, jurisdiction and powers for and in relation to the Governance of the State
and agrees to transfer the administration of the State to the Dominion Government
on the … day of … 1948 (hereinafter referred to as “the said day”).
As from the said day the Dominion Government will be competent to exercise the
said powers, authority and jurisdiction in such manner and through such agency as
it may think fit.
ARTICLE 2.
The … shall with effect from the said day be entitled to receive from the revenues
of the State annually for his privy purse the sum of … rupees free of taxes. This
amount is intended to cover all the expenses of the Ruler and his family, including
expenses on account of his personal staff, maintenance of his residences, marriages
and other ceremonies etc. and will neither be increased nor reduced for any reason
whatsoever.
The said sum may be drawn by the … in four equal instalments in advance at the
beginning of each quarter by presenting bills at the State treasury or at such other
treasury as may be specified by the Dominion Government.
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ARTICLE 3.
The … shall be entitled to the full ownership, use and enjoyment of all private
properties (as distinct from State properties) belonging to him on the date of this
agreement.
The … will furnish to the Dominion Government before the … day of … 1948 an
inventory of all the immovable property, securities and cash balance held by him as
such private property.
If any dispute arises as to whether any item of property is the private property of
the … or State property, it shall be referred to such officer with judicial experience
as the Dominion Government may nominate and the decision of that officer shall be
final and binding on both parties.
ARTICLE 4.
The … shall be entitled to all personal privileges enjoyed by them whether within
or outside the territories of the State, immediately before the 15th day of August,
1947.
ARTICLE 5.
The Dominion Government guarantees the succession, according to law and
custom, to the gadi of the State and to the … personal rights, privileges, dignities
and titles.
In confirmation whereof Mr Vapal Pangumi Menon, Secretary to the Government
of India in the Ministry of States, has appended his signature on behalf and with
the authority of the Governor-General of India and … has appended his signature on
behalf of himself, his heirs and successors, … of … Dated Secretary to the
Government of India.
Ministry of States.”
The letters of guarantee subsequently executed by the Ministry of States in favour of
the respective Rulers contained the following guarantees:
“(1) Your privy purse will be fixed in accordance with the formula applied in
relation to the fixation of the privy purse of the Deccan States Rulers whose States
have merged into the Bombay Province. The amount will be fixed in perpetuity to
you, your heirs and successors, and will neither be increased nor reduced for any
reason whatsoever. It will be free of all taxes, whether imposed by the Government
of Bombay or by the Government of India and it will not be taken into account in
the assessment of your world income to income tax or super tax.
(2) The cash balances and other assets of your State on the day you transfer the
administration of your State to the Dominion Government will, as far as possible, be
spent for the benefit of the people of your State.
(3) You will be entitled to the full ownership, use and enjoyment of all Darbari or
private properties (as distinct from State Properties) belonging to you on the date
of your making over the administration of your State to the Dominion Government.
Darbari properties will include palaces, houses, residences, guest houses, stables,
garages, quarters, outhouses etc. which are at the date of transfer of administration
in bona fide personal use or occupation of the Ruler or members of his family or
personal staff, irrespective of whether the property is situated in the Capital, or at
any other place in the State, or in Bombay, or anywhere else outside.
(4) The continuation in service of the permanent members of the public services
of your State is hereby guaranteed on conditions which will be no less
advantageous than those on which they were serving on 1st April, 1948. In the
event of continuation of service not being possible in any case, reasonable
compensation will be paid.
(5) Pensions, gratuities, annuities, and allowances, granted by the State to the
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members of its public services who have retired or have proceeded on leave
preparatory to retirement before 1st April, 1948, as also the enjoyment of the
ownership of Khangi villages, lands, jagir, grants, etc. existing on 1st April, 1948,
are hereby guaranteed. This guarantee is without prejudice to the right of
Government of Bombay to issue any legislation which does not discriminate against
the States and their subjects.
(6) All emblems, insignia, articles and other paraphernalia of the Ruler will be
considered as belonging to, and be regarded as his private property.
(7) No order passed or action taken by you before the date of making over the
administration to the Dominion Government will be questioned unless the order was
passed or action taken after the 1st of April, 1948 and is considered by the
Government of India to be palpably unjust or unreasonable. The decision of the
Government of India in this respect will be final.
(8) No enquiry shall be made nor shall proceedings lie in any court in India
against you, whether in a personal capacity or otherwise, in respect of anything
done or omitted to be done by you or under your authority during the period of your
administration of the State.
(9) Every question of disputed succession in regard to a Gujarat State which has
signed an agreement integrating the administration of the State with that of the
Province of Bombay shall be decided by a Council of Rulers of Gujarat States after
referring it to the High Court of Bombay and in accordance with the opinion given
by that High Court. All questions relating to the rights, dignities and privileges of
the Ruler will also be considered by the Council of Rulers who shall make suitable
recommendations to the Government of Bombay and the Government of India. The
Council shall consist of the Rulers of all full jurisdictional Gujarat States, whether
salute or non-salute. No ruler who is less than 21 years of age shall however be a
member of the Council. The Council will elect one of its members to be the
President of the Council. The President and the members of the Council will hold
office for a term of five years from the date on which they enter upon the duties of
their respective offices.
2. The contents of this letter will be regarded as part of the merger agreement
entered into by you with the Governor-General of India.”
6. The contention which has been urged before us by the petitioners relying upon
clause 5 of the letters of guarantee aforesaid is that the enjoyment of the ownership of
the jagirs existing on 1st April, 1948 was guaranteed, that this guarantee was binding
on the State of Bombay, that the State of Bombay and therefore the State Legislature
had waived the right, if any, or in any event had no legislative competence to enact
any legislation depriving the holders of the jagirs of their right of ownership over the
same, and that even though the Government of Bombay has reserved to itself the
right to issue any legislation which did not discriminate against the states and their
subjects, the impugned Act was ultra vires inasmuch as no legislation could be
undertaken which would have the effect of depriving the holders of the jagirs of their
ownership over the same and the provisions of the impugned Act were in any event
discriminatory against the States and their subjects or in other words the impugned
Act was confiscatory and also discriminatory.
7. It was contended on the other hand on behalf of the State of Bombay that the
agreements of merger and the letters of guarantee were executed by the Dominion of
India and were not binding on the State of Bombay, that the petitioners were not
parties to the agreements of merger and letters of guarantee and that they were not
entitled to enforce the same, that even if they be treated as parties thereto the
dispute between the parties arose out of the provisions of the agreements and
covenants which were entered into or executed before the commencement of the
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Constitution by the Rulers of the respective states and to which the Government of
Dominion of India was a party and that therefore this Court had no jurisdiction to
interfere in the said disputes by virtue of the provisions of Article 363 of the
Constitution, that the State Legislature had plenary powers of legislation within the
ambit of its sphere unless the Constitution itself expressly prohibited legislation on the
subject either absolutely or conditionally, that no such prohibition could be spelt out of
the terms of clause 5 of the letters of guarantee and that the impugned Act was intra
vires the powers of the State Legislature and could not be challenged. Once that
position was established it was further urged that the jagirs in question were estates
within the definition of the expression in Article 31-A(2)(a) of the Constitution and the
impugned legislation being a legislation providing for the acquisition by the State of
the estates and the rights therein or for the extinguishment or modification of the
same could not be challenged as void on the ground that it was inconsistent with or
abridged any of the rights conferred by any provisions of Part III of the Constitution,
and that therefore the impugned Act could not be challenged as violative of any of the
fundamental rights of the petitioners. It was also urged that none of the provisions of
the impugned Act were confiscatory or in any manner whatever discriminatory, fair
and adequate compensation having been provided for the abolition of the jagirs and
the States and their subjects not having been dealt within any discriminatory manner
as compared with the subjects of the original State of Bombay.
8. As regards the contention that the agreements of merger and the letters of
guarantee were executed by the Dominion of India and were not binding on the State
of Bombay it was urged on behalf of the petitioners that the Government of the
Dominion of India was certainly bound by those guarantees and this obligation of the
Dominion Government devolved upon the Province of Bombay when the erstwhile
States which were parties to the agreements of merger and the letters of guarantee
became merged in the Province of Bombay, under clause 8 of the States' Merger
(Governors' Provinces) Order, 1949 (Appendix XLIV, White Paper, p. 297), that these
obligations were thus deemed to have been undertaken by the Dominion Government
on behalf of the absorbing Province viz. the Province of Bombay and were binding
upon the Province of Bombay, and that when the Constitution came into force from
26th January, 1950, all rights, liabilities and obligations of the Government of each
Governors' Province whether arising out of any contract or otherwise were under Article
294 of the Constitution to be the rights, liabilities and obligations respectively of the
Government of each corresponding State and these obligations of the Province of
Bombay accordingly became the obligations of the State of Bombay. It was further
urged that the State of Bombay was thus bound by all the obligations which had been
undertaken by the Dominion Government under the agreements of merger and letters
of guarantee above referred to, and it could not lie in the mouth of the State of
Bombay to repudiate the same.
9. This argument is not without force, but we do not consider it necessary to decide
this question because even assuming that the State of Bombay was bound by these
obligations, the question still remains how far the petitioners before us are entitled to
enforce these obligations against the State of Bombay. The petitioners were certainly
not parties to these agreements of merger and letters of guarantee eo nominee. They
could only claim to be parties to the same by reason of the fact that the Rulers of the
erstwhile States did not negotiate these agreements of merger or obtain the letters of
guarantee only in respect of their personal rights and properties but also represented
the States and their subjects in the matter of obtaining the same and the subject of
these States were therefore represented by the Rulers and were entitled to the benefit
of whatever obligations were undertaken by the Dominion of India qua the States and
their subjects. It is therefore arguable that the Rulers of the erstwhile States as also
their subjects would be in a position to enforce these obligations. This position was
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however sought to be negatived by relying upon the following observation of Their

Lordships of the Privy Council in Vajesingji Joravarsingji v. Secretary of State for India
in Council1 at p. 360:
“But a summary of the matter is this: when a territory is acquired by a sovereign
State for the first time that is an act of state. It matters not how the acquisition has
been brought about. It may be by conquest, it may be by cession following on
treaty, it may be by occupation of territory hitherto unoccupied by a recognized
ruler. In all cases the result is the same. Any inhabitant of the territory can make
good in the municipal courts established by the new sovereign only such rights as
that sovereign has, through his officers, recognised. Such rights as he had under
the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession
it is stipulated that certain inhabitants should enjoy certain rights, that does not
give a title to those inhabitants to enforce these stipulations in the municipal
courts. The right to enforce remains only with the high contracting parties.”
10. These observations were quoted with approval in Secretary of State v. Sardar
Rustam Khan2 at p. 124. It was therefore urged that it will be the high contracting
parties viz. the Rulers of the respective States who would be in a position to enforce
these obligations and not the petitioners for whose benefit these obligations were
undertaken by the Dominion Government.
11. We do not feel called upon to pronounce upon the validity or otherwise of these
contentions also for the simple reason that the petitioners would be out of court either
way. If they were deemed to be parties to the agreements of merger and letters of
guarantee they would be faced with the bar to the maintainability of the petitions
under Article 363 of the Constitution which lays down that neither the Supreme Court
nor any other court shall have jurisdiction in any dispute arising out of any provision of
a treaty, agreement, covenant, engagement, sanad or other similar instrument which
was entered into or executed before the commencement of the Constitution by any
Ruler of an Indian State and to which the Government of the Dominion of India … was
a party. If on the other hand they were deemed not to have been parties to the same
they would not be the contracting parties and would certainly not be able to enforce
these obligations.
12. It was therefore urged on behalf of the petitioners that the dispute between the
parties did not arise out of the provisions of the agreements of merger and the letters
of guarantee which were entered into or executed by the Rulers of the respective
States and to which the Government of the Dominion of India was a party. According
to the petitioners they merely challenged the vires of the impugned Act and relied
upon clause 5 of the letters of guarantee in order to establish the position that the
State Legislature had no legislative competence to legislate on the subject of the
abolition of jagirs. That was, it was submitted, not a dispute arising out of the
agreements of merger and letters of guarantee but arose out of the act of the State
Legislature in enacting the impugned Act in direct contravention of the guarantee
incorporated in clause 5 of the letters of guarantee. This argument however would not
avail the petitioners, because if one looked into the averments contained in their
petitions it was clear that the whole ambit of the petitions was to enforce clause 5 of
the letters of guarantee. The Petitioners relied upon clause 5 of the letters of
guarantee which had been obtained by the Rulers of the erstwhile State from the
Dominion Government and complained that the State Legislature had enacted the
impugned Act which it had no power to enact having regard to clause 5 of the said
letters of guarantee and were wrongfully depriving the petitioners of the jagirs, the
ownership of which had been guaranteed thereunder. The whole of the petitions were
nothing else except the claim to enforce the petitioners' rights under the letters of
guarantee, and the disputes therefore were clearly in respect of the agreements of
merger and the letters of guarantee and were covered by Article 363(1) of the
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Constitution. A similar contention had been raised on behalf of the plaintiffs in State of
Seraikella v. Union of India3 and was repelled by Kania, C.J. at p. 490 as under:
“The plaintiff contends firstly that it had signed the instrument of accession
through its Ruler. The State next complains that, acting beyond the powers given
over under the instrument of accession, the Dominion of India and the State of
Bihar are trespassing wrongfully on its legislative and executive functions, that the
Dominion of India and the State of Bihar are making laws which they have no power
to make, having regard to the instrument of accession, and are wrongfully
interfering with the administration of the State beyond the rights given to them
under the instrument of accession. The whole plaint is nothing else except the claim
to enforce the plaintiff's right under the Instrument of Accession. The dispute
therefore in my opinion clearly is in respect of this Instrument of Accession and is
covered by Article 363(1) of the Constitution of India. The question of the validity of
the different enactments and orders is also based on the rights claimed under the
Instrument of Accession so far as the plaintiff is concerned.”
It could not therefore be urged that what the petitioners were doing was not to enforce
the obligations undertaken by the Dominion Government under the agreements of
merger and the letters of guarantee, or that the disputes between the parties did not
arise out of the provisions of the agreements of merger and the letters of guarantee
which were entered into or executed by the Rulers of the respective States and to
which the Government of Dominion of India was a party within the meaning of Article
363 of the Constitution.
13. If that was the position the jurisdiction of this Court was ousted and this Court
could not interfere in those disputes. Assuming however that the petitioners were
entitled to enforce the obligation and guarantee incorporated in clause 5 of the letters
of guarantee the further difficulty in the way of the petitioners is that the State
Legislature was fully competent to enact the impugned Act notwithstanding the terms
of the guarantee. The legislative competence of the State Legislature can only be
circumscribed by express prohibition contained in the Constitution itself and unless
and until there is any provision in the Constitution expressly prohibiting legislation on
the subject either absolutely or conditionally, there is no fetter or limitation on the
plenary powers which the State Legislature enjoys to legislate on the topics
enumerated in the Lists 2 and 3 of the Seventh Schedule to the Constitution. It was
conceded on behalf of the petitioners that the topic of legislation which was covered by
the impugned Act was well within List 2 of the said schedule and the vires of the
impugned Act could not be challenged on that ground. The ground of attack was that
the Dominion Government and therefore the State Government had waived its right to
legislate on the topic of the abolition of jagirs or had in any event put a fetter or
limitation on their power to issue any legislation in that behalf by the terms of the
guarantee contained in clause 5 of the letters of guarantee. It was contended that
under the terms of clause 5 an absolute guarantee had been given by the Dominion
Government in regard to the enjoyment of the ownership of jagirs and that the
Dominion Government and therefore the State of Bombay were precluded from
enacting any legislation which had the effect of destroying that ownership. This
contention however could not be supported by the terms of clause 5 which embodied
in the first part thereof the terms of the guarantee, and went on to provide in the
second part that this guarantee was without prejudice to the right of the Government
of Bombay to issue any legislation which did not discriminate against the States and
their subjects. It was therefore not an absolute guarantee but was circumscribed or
cut down by the reservation of the power to make law with respect to jagirs provided
such law did not discriminate against the States and their subjects. The right of the
Government of Bombay which was thus reserved covered the whole of the guarantee
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embodied in the first part of the clause and there was nothing in these terms which
would go to show that the ownership of the jagirs could not be touched and the
legislation, if any, was to be enacted in regard to certain incidents of enjoyment of
such ownership. The right of the Government of Bombay to issue any legislation with
regard to the enjoyment of the ownership of jagir lands was expressly reserved and
this right covered also legislation in regard to the abolition of the jagirs and the
Government of Bombay was therefore entitled under the terms of this clause 5 to issue
any legislation in regard to the same provided however that such legislation did not
discriminate against the States and their subjects. That was the only fetter or
limitation, imposed upon the right of the Government of Bombay to issue any
legislation in regard to the enjoyment of the ownership of jagir lands and if that fetter
or limitation could also be imposed on the State Legislature the petitioners would have
had a right to challenge the impugned Act on the ground that it discriminated against
the States and their subjects.
14. The fetter or limitation upon the legislative power of the State Legislature which
had plenary powers of legislation within the ambit of the legislative heads specified in
the Lists 2 and 3 of the Seventh Schedule to the Constitution could only be imposed
by the Constitution itself and not by any obligation which had been undertaken by
either the Dominion Government or the Province of Bombay or even the State of
Bombay. Under Article 246 the State Legislature was invested with the power to
legislate on the topics enumerated in Lists 2 and 3 of the Seventh Schedule to the
Constitution and this power was by virtue of Article 245(1) subject to the provisions of
the Constitution. The Constitution itself laid down the fetters or limitations on this
power e.g. in Article 303 or Article 286(2). But unless and until the court came to the
conclusion that the Constitution itself had expressly prohibited legislation on the
subject either absolutely or conditionally the power of the State Legislature to enact
legislation within its legislative competence was plenary. Once the topic of legislation
was comprised within any of the entries in the Lists 2 and 3 of the Seventh Schedule
to the Constitution the fetter or limitation on such legislative power had to be found
within the Constitution itself and if there was no such fetter or limitation to be found
there the State Legislature had full competence to enact the impugned Act no matter
whether such enactment was contrary to the guarantee given, or the obligation
undertaken by the Dominion Government or the Province of Bombay or even the State
of Bombay. The petitioners would have a legitimate grievance in the matter of the
deprivation of their rights of ownership of the jagir lands insofar as the States and
their subjects were discriminated against, but they would not be able to have their
grievance redressed by this Court for the simple reason that the State Legislature was
at all events competent to enact the impugned Act not being fettered at all by the
terms of clause 5 of the letters of guarantee. The provisions of Article 294(b) of the
Constitution which is said to have transferred the obligations of the Government of the
Province to the State of Bombay would not by involving the transference of the
obligation undertaken by the Dominion Government in clause 5 of the letters of
guarantee to the State Government impose a fetter or limitation on the legislative
competence of the State Legislature to enact legislation on any of the topics
enumerated in Lists 2 and 3 of the Seventh Schedule to the Constitution. The remedy
of the petitioners would be elsewhere and not in this forum. The learned Judges of the
Federal Court gave an answer to a similar complaint of the Taluqdars of Oudh made by
them against the United Provinces Tenancy Act 17 of 1939 in Thakur Jagannath Baksh
Singh v. United Provinces4 at p. 87:
“We desire, however, to point out that what they are now claiming is that no
legislature in India has any right to alter the arrangements embodied in their
sanads nearly a century ago; and, for all we know, they would deny the right of
Parliament itself to do so. We hope that no responsible legislature or Government
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would ever treat as of no account solemn pledges given by their predecessors;

but the readjustment of rights and duties is an inevitable process, and one of the
functions of the legislature in a modern State is to effect that readjustment,
where circumstances have made it necessary, with justice to all concerned. It is
however, not for this Court to pronounce upon the wisdom or the justice, in the
broader sense, of legislative acts; it can only say whether they were validly
enacted, …”
These observations were quoted with approval by Their Lordships of the Privy
Council in Thakur Jagannath Baksh Singh v. United Provinces5 at p. 122 and we
also would observe in the same strain that we are not concerned with the policy
of the State Legislature in enacting the impugned Act for abolition of jagirs but
we are only concerned with the question whether the impugned Act was validly
enacted.
15. No argument has been advanced before us which would enable us to hold that
the impugned Act was ultra vires the State Legislature, the only ground of attack
being that it was in contravention of the guarantee given in clause 5 of the letters of
guarantee. But that position is of no avail to the petitioners.
16. Considerable argument was addressed before us based on the comparison of
the provisions of the various Acts of the Bombay State Legislature enacted during the
years 1949 to 1953 in regard to the abolition of the various tenures obtaining within
the State of Bombay with the provisions of the impugned Act, with a view to show that
the provisions of the impugned Act were discriminatory against the States and their
subjects within the meaning of clause 5 of the letters of guarantee. We have not
thought it necessary to refer to the same in view of the conclusion which we have
reached above that the impugned Act was intra vires the powers of the State
Legislature and the State Legislature was quite competent to enact the same.
17. Even if it could be demonstrated that the provisions of the impugned Act were
confiscatory as well as discriminatory in the manner suggested, the jagirs of the
petitioners (except in the case of the petitioner in Petition No. 364 of 1954) were all
estates within the meaning of the term as defined in Article 31-A(2)(a) of the
Constitution and even if the impugned Act provided for the acquisition of the estates
or of any rights therein or for the extinguishment or modification of any such rights
the impugned Act could not be challenged as void on the ground that it was
inconsistent with or took away or abridged any of the fundamental rights conferred by
Part III of the Constitution. Any challenge therefore on the ground of the impugned
Act violating the fundamental rights of the petitioners under Article 14 or Article 19(1)
(f) or Article 31(2) of the Constitution was not available to the petitioners. On the
other hand if the grievance was that the impugned Act had brought about
discrimination in breach of clause 5 of the letters of guarantee then the dispute clearly
arose out of the letters of guarantee and would by Article 363 be placed beyond the
jurisdiction of this Court. The petitions of the petitioners except Petition No. 364 of
1954 which would be dealt with immediately hereafter therefore fail and are liable to
be dismissed.
Petition No. 364 of 1954
18. In addition to the grounds common to all the petitions which we have already
dealt with above the Petitioner in Petition No. 364 of 1954 claims that he is the owner
of the 60 villages in the Putta or territory of Moti Moree comprised in the erstwhile
State of Idar as the Bhumia or underlord and contends that his holding does not fall
within the definition of jagir as given in the impugned Act. In support of his contention
he has traced the history of Moti Moree since 1250 A.D. and in any event since 1800
A.D. when the then Chieftain of Moti Moree entered into a treaty with the Maharaja
Zalimsinh of Modasa whereby in consideration of payment of Rs 361 annually the said
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Zalimsinh agreed to protect Moti Moree against the attacks of the neighbouring State
of Doongarpur. He has pointed out that thereafter Modasa was absorbed into the
Taluka of Amnagar in 1821 and subsequently in about 1849 it reverted to Idar State
and continued with the Idar State until the latter merged into the Province of Bombay
in 1948. He contends that he and his predecessors were enjoying and exercising full
sovereign rights over Moti Moree ever since the said treaty of 1800 and their position
had remained unchanged, their only liability being to pay Rs 361 annually for
protection. He further contends that they were enjoying the rights of excise and
customs and revenue, that they did not pay any revenue to the State of Idar and
enjoyed and continued to enjoy rights over all lands, forests, minerals, river beds,
village sites etc. and that when the Ruler of Idar wanted that there should be uniform
customs levy throughout the State, the said Ruler had to give compensation to the
petitioner and had also similarly negotiated with them and had to pay compensation to
them in respect of salt, opium, excise etc. He has pointed out that Rs 457 for customs
Rs 40 for opium and Rs 7 for salt were being paid annually by the erstwhile State of
Idar and thereafter by the Government of State of Bombay to him by way of
compensation for these sovereign rights of his, which amounts were set off against Rs
361 being the annual payment of protection which he paid as aforesaid to them. These
rights of his recognised by the erstwhile State of Idar and also by the State of Bombay
constituted him a Thakur or underlord of Moti Moree and he contends that his estate of
Moti Moree is not a jagir within the definition of the term given in the impugned Act.
19. Our attention has also been drawn in this behalf to Bombay Gazetteer. Vol. 5
(1880), p. 398, where Mori (Meghraj) is described as the estate of the original
landlords Bhumias otherwise described as petty chiefs and underlords and to p. 409
where the underlords (Bhumias) are stated to be the early chiefs who settled in Idar at
least not later than the Rathod conquest (about 1250).
20. The State of Bombay on the other hand has denied the several allegations
contained in the petition and contends that in the year 1891 the erstwhile State of
Idar had conferred upon the Thakore of Moti Moree the powers of a Third Class
Magistrate as an act of “grace”, that in 1902 the management of the estate was taken
over by the erstwhile State of Idar and one Kamdar Mathurlaji was appointed as
Japtidar, that in 1910 the management was lifted as a special case and the arrears of
nazrana were ordered to be recovered in instalments by the erstwhile State of Idar,
that in several documents Moti Moree was described as Bhomia Jagir within the
definition of the term jagir as given in the impugned Act and that the sum of Rs 361
was still being regularly paid even after merger as “Kichari hak”. It therefore contends
that the Thakur of Moti Moree, the petitioner is a jagirdar and Moti Moree is a jagir
within the meaning of the definition thereof given in the impugned Act.
21. These allegations and counter-allegations do not however carry the matter any
further. In order to exclude Moti Moree and the petitioner from the operation of the
impugned Act it will be necessary for the petitioner to establish satisfactorily that Moti
Moree is not a jagir within the definition thereof given in the impugned Act. Even
though the allegations of the petitioner go far enough to make it probable that Moti
Moree was neither held by the petitioner and his ancestors under a grant or was not
recognised as a grant by the Ruler of the erstwhile State of Idar, that would not be
enough to enable us to grant him the relief prayed for by him. The question requires to
be completely thrashed out and adjudicated upon by a court of law after going into the
evidence adduced before it by both the parties. The learned Attorney-General
appearing for the State of Bombay has therefore submitted that this question should
be enquired into by a proper Tribunal and the petitioner should be referred to a civil
suit in order to establish his rights.
22. We accordingly feel that the Petition No. 364 of 1954 should be adjourned till
after the disposal of a civil suit to be filed by the petitioner in the proper court for a
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declaration that Moti Moree is not a jagir within the definition of the term as given in
the impugned Act and for consequential reliefs. The learned counsel for the petitioner
has given us to understand that a formal notice under Section 80 of the Civil
Procedure Code in this behalf has already been served by the petitioner on the State of
Bombay. We therefore order that the petitioner do file the necessary suit within 3
months from this date and this petition do stand adjourned till after the hearing and
final disposal of that suit. The stay granted by this Court in this petition will continue
in the meanwhile. We may record here that the learned Attorney-General on behalf of
the State of Bombay has also given his undertaking not to take any steps against the
petitioner in the meanwhile.
23. Petitions Nos. 337 to 349, 365, 366, 481 and 690 of 1954 will therefore stand
dismissed. Petition No. 364 of 1954 will stand adjourned sine die till after the disposal
of the civil suit to be filed by the petitioner as above indicated. If no such suit is filed
within the aforesaid period this petition will also stand dismissed. Each party will bear
and pay the respective costs of the petitions.
———
* (Under Article 32 of the Constitution for the enforcement of fundamental rights).
1 51 Indian Appeals 357

2 68 Indian Appeals 109

3 1951 SCR 474
4 (1943) FCR 72

5 1946 FCR 111

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