# 1'61 A-fann.Jal .J cin v. Tht Stott nf Assam Smltor .!. M1ulhollcar ]. IIU October 3. • 9i0

- **Citation:** [1962] 3 S.C.R. 970
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sahkar, N. Rajagopala Ayya~Gar, J. R. l\Iun110LKAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-61-a-fann-jal-j-cin-v-tht-stott-nf-assam-smltor-m1ulhollcar-iiu-october-3-9i0-2406
- **Pages:** 33

## Headnote

Art of Sf(Jte-Junag,zdh State----When integrated into lndial'olitical Queation-RPjerence to Government for opinion-Grant&
by :Ya.,<W-Re.mmplion hy Adinini•tra/,or-lf en bt challeng•d
in Municipal courts Government of India Act J9,J6 (26 Geo v.
Ch .. 2;, "· 5, Ii, 2!19(!).
The Nawab ofjunagadh State made gt ants of properties
in favC>ur of the respondents before I 9l7. After India attained
independence the Nawab fled the country.
At the request
of the Nawab's Council the Government of India took over the
administration of the State and on :\ovember 9, 1947 1 the
Rt'gional Commissioner assumed charge of the administration
on behalf of the Government of India. The Regional Commissionc1· appointed an Admini>trator of Junagadh State.
In
December 1948, the elected representatives of Junagadh and
certain other neighbouring States recommended to the Govern·
ment of India and to the United State that of Saurashtra that
the States be integrated. Thereafter, the administration of
.Juna~adh State was integrated with the United State of
Saurashtra on January 20, 1949.
On different dates between·......-
November 9. 1947, and January 20, 1949, the Administrator
passrd ordOJs cancelling the grants in favour of the respondents
and took pl'Sleuion of the properties. The respondents filed
civil suits for the recovery of the properties on the ground that
•
l -
3 s.c.R.
SUPRE~ COURT REP0RTS
911
they had been taken away without the authority of law.
The
appellant contended that the orders made by the Administrator
arose out of and during an act of State and were not justioiable
in the municipal courts. The respondent contended that the
question as to when the change 01•er of sovereignty took place
was a political question which should be referred to the Govern·
ment of India for its o,>inion and the Court should abide by
that opinhn and that the facts of this case showed that there
was complete change over of sovereignty on November 9, !9t7,
and the act of State was complete.
Held, (per C. J., Das and Ayyangar, JJ.) that the impug·
ned orders arose out of and during an act of State and they
could not be questioned before municipal tribunals. There
wa• no change over of de jure sovereignty on November 9, 1947
\Vhen the
administration was taken over and Junagadh
continued to exist as such even after this date. Junagadh \vas
not a State which acceded to the Dominion nor was its territory included within the territory of the Dominion as from
November 9, 1947. It was only on January 20, 1949, that
the Dominion of India assumed de jure sovereignty over Junagadh by its integration into the United State ofSaurashtra
and the act of State came to an end.
It \vas not necessary to
serk information from the Government of India as to the
date of the change over as there was no uncertainty about it
and also as the Government of India had spoken with sufficient
clarity in the White Paper on Indian States.
State of Saurashtra v. Memon Haji Ismail llaji, ( l 9GO)
1 S.C.R. 537 and M/•· Dalmia Dadri Cement Go., Ltd. v. 1'he
Commissioner of lncome-tai:, (1959) S.C.R. 729, fo!Jowed.
In re: SouthernRhotlesia, ( 1919) A.O. 211 and Sarnaut
v. Strickktnd (1938) A.O. 678, referred to.
Per Sarkar and Mudholkar-, .U· Even, if.it be accepted
thatJunagadh was annexed on Ncivi;mber 9
1947 and the
respondents became citizens of' India, they'cotild ~sert and
establish in the municipal courts of the new sovereign ·only such
rights as were recognised by the Indian Dominion. Tho burden
of showing that they were so recognised lay .on the respondents.
The orders passed by the Administrator show that far from
recogI?izing the- grants in-favour of the ·respondents they \Vere
repudiated. The respondents could not claim the benefit of
s. 299 (I) of tho Government of India Act, 1935, as they had
to.establish that on or a.fter November 9, 1947, they possessed
a legally enforceable right agamst the Dominion of India
":'hich they could on!y do by showing thanheir pre-existing
rights had been r

## Text

_Characters 0–39,949 of 66,923. This is a partial read: ask again with offset=39949 for what follows._

1'61
A-fann.Jal .J cin
v.
Tht Stott nf Assam
Smltor .!.
M1ulhollcar ].
IIU
October 3.
•
9i0
SUPREME COl"'RT REPORTS
[1962)
~ocieties is not open to any objection.
In my vi°'"
0that was a 1air Order to luwo been made in the
circumstances of thi11 case.
I would for these roasons dismiss this pctiti on.
MuDHOI.KAH, .J.-I agree with the judgment
<loliv<'red by Sarkar, J.
BY CovRT-ln accordance with the opinion
of thP- majority thi8 Writ Petition is allowed with
costs.
Petition allowed.
STATE OF SAURASHTRA
v.
JA:llADAR i\fOHA~IAD ABDULLA AND ORS.
(B. P. SINHA, c. J., s. K. DAS, A. K. SAHKAR,
N. RAJAGOPALA AYYA~GAR and
J. R. l\Iun110LKAH, JJ.)
Art of Sf(Jte-Junag,zdh State----When integrated into lndial'olitical Queation-RPjerence to Government for opinion-Grant&
by :Ya.,<W-Re.mmplion hy Adinini•tra/,or-lf en bt challeng•d
in Municipal courts Government of India Act J9,J6 (26 Geo v.
Ch .. 2;, "· 5, Ii, 2!19(!).
The Nawab ofjunagadh State made gt ants of properties
in favC>ur of the respondents before I 9l7. After India attained
independence the Nawab fled the country.
At the request
of the Nawab's Council the Government of India took over the
administration of the State and on :\ovember 9, 1947 1 the
Rt'gional Commissioner assumed charge of the administration
on behalf of the Government of India. The Regional Commissionc1· appointed an Admini>trator of Junagadh State.
In
December 1948, the elected representatives of Junagadh and
certain other neighbouring States recommended to the Govern·
ment of India and to the United State that of Saurashtra that
the States be integrated. Thereafter, the administration of
.Juna~adh State was integrated with the United State of
Saurashtra on January 20, 1949.
On different dates between·......-
November 9. 1947, and January 20, 1949, the Administrator
passrd ordOJs cancelling the grants in favour of the respondents
and took pl'Sleuion of the properties. The respondents filed
civil suits for the recovery of the properties on the ground that
•
l -
3 s.c.R.
SUPRE~ COURT REP0RTS
911
they had been taken away without the authority of law.
The
appellant contended that the orders made by the Administrator
arose out of and during an act of State and were not justioiable
in the municipal courts. The respondent contended that the
question as to when the change 01•er of sovereignty took place
was a political question which should be referred to the Govern·
ment of India for its o,>inion and the Court should abide by
that opinhn and that the facts of this case showed that there
was complete change over of sovereignty on November 9, !9t7,
and the act of State was complete.
Held, (per C. J., Das and Ayyangar, JJ.) that the impug·
ned orders arose out of and during an act of State and they
could not be questioned before municipal tribunals. There
wa• no change over of de jure sovereignty on November 9, 1947
\Vhen the
administration was taken over and Junagadh
continued to exist as such even after this date. Junagadh \vas
not a State which acceded to the Dominion nor was its territory included within the territory of the Dominion as from
November 9, 1947. It was only on January 20, 1949, that
the Dominion of India assumed de jure sovereignty over Junagadh by its integration into the United State ofSaurashtra
and the act of State came to an end.
It \vas not necessary to
serk information from the Government of India as to the
date of the change over as there was no uncertainty about it
and also as the Government of India had spoken with sufficient
clarity in the White Paper on Indian States.
State of Saurashtra v. Memon Haji Ismail llaji, ( l 9GO)
1 S.C.R. 537 and M/•· Dalmia Dadri Cement Go., Ltd. v. 1'he
Commissioner of lncome-tai:, (1959) S.C.R. 729, fo!Jowed.
In re: SouthernRhotlesia, ( 1919) A.O. 211 and Sarnaut
v. Strickktnd (1938) A.O. 678, referred to.
Per Sarkar and Mudholkar-, .U· Even, if.it be accepted
thatJunagadh was annexed on Ncivi;mber 9
1947 and the
respondents became citizens of' India, they'cotild ~sert and
establish in the municipal courts of the new sovereign ·only such
rights as were recognised by the Indian Dominion. Tho burden
of showing that they were so recognised lay .on the respondents.
The orders passed by the Administrator show that far from
recogI?izing the- grants in-favour of the ·respondents they \Vere
repudiated. The respondents could not claim the benefit of
s. 299 (I) of tho Government of India Act, 1935, as they had
to.establish that on or a.fter November 9, 1947, they possessed
a legally enforceable right agamst the Dominion of India
":'hich they could on!y do by showing thanheir pre-existing
rights had been reeog~11Zed by the Domm1on of India; s.299(1)
:did not· enlarge any rights to property but only protected. those
which a perron alrea tly had.
1061
State nf Say,rash! ra
v.
]amado.r M ~hamatl
Abdulla
1361
Sta!t •f SrrwrJJhlls
V.
.7a1'11adar Muham•i
Ahclt1ll'1
S.K. Da, ].
~72
SUPREME OOURT REPORTS
[1062)
ltl;• Dalmia Dadri Cement Cu., Ud. v. The Co,,.,ni81ioner
of i..co--ta:r:, \19j9) S.C.R. 729, In Re: Souihem Rhoduia,
(1919) A.C. 2 I. Samaut '"
Strickland, (1938) A.C.-678,
United Statea v. l'ercheman, '.1833) 32 U.S. 51, Cook v. Sprigg,
(1899) AC. 572, Tl"1cka v. State of Saura1htra, A.LR. 19j4
S.C, 680 and Virendm Singh'" Stale of r:ttar J'radeah, (19j5)
I S.C.R. 415.
Cn·1L APPELT.ATE JumsorcTJUN: Civil Appeals
Xos. 220, 221, !349 nn<l 49i of 58.
Appeals from the ju<lgmcnt an<l decrec•s dated
l!J.3fi March 24, 1956 Septombcr 15 ;ind 1!)5G April
12 of the former Sanrnshtra High Ceurt at Rajkot
in Ci Yi! Second A ppcals :'.\ os. I :!3 of Hl53 & I 04 of
UJ55 and Civil Appeals Nos. 4~ of 1953 and 50 of
i!l;)·!.
J/. C. Setalmd,
Atlomey-Gcnerul for India,
C. I\. Dr1pht,ary, Solicitor-General of buiici, B. Sen
1111d R. ll.
f)h~bar, for the Appellant (In all the
Appeals).
I . . V. Shroff for the Rc~pondents (In C. As.
N 08. 220 anrl 221 of 1958 ).
G. S. f>atlmk, .V. P . .Vathnwni ancl /{. /,, Hatki
for the Respondents (In C.A. No. 349 uf 1958).
J. P • .J!ehu1, .J. JJ.
Dadacl1m~ii, Onkar Cha'ld
J!a//w,r and Ravinder ll'arain, for the Rospondents
(In C.A. No. 497 of 1958).
1961. October 3. 'l'he Judgment of Sinha, C.J.,
S. K. Du and N. Rajagopala Ayyangar, JJ.
was delivered by S. K. Dae, J. Tho Judgment of
A. K. Sarkar and ,J. R. llludholkar, JJ., was delivered In• J. R. Mndholkar, J.
S. K. DAS, J.-Theac four appeal1 which haYe
been brought to this Court on certificates granted
by the then High Court of Saurashtra. under
Art. 133 of tho Constitution fall into three groups,
and have been bee.rd together. Tho C88ential facte
rel:i.ting to these appeals are the same, and a
common question of law now falls for de!Rrmination
on those focta.
-
--
3 S.O.R. SUPltEME COURT REPORTS
973
The State of Gujarat, within whose territories
the disputed properties are now situatP, is the
appellant in the appeals.
The respondents and in
some cases their ancestors, obtained grants from
the then Nawab of Juuagadh, which was then a
ruling State, in respect of lands and, in one case,
of a building known as 'Datar M:anzil'.
These
grants were repudiated or cancelled and the property, subject of the grant, was resumed by tho
Administrator who took over charge of the admini~
tration of Junagadh on behalf of the Dominion of
India in 194 7 in circumstances which we shall
presently state.
The respondents brought suits
challenging the validity of the orders made by the
Administrator. These suits were decreed by the
lower court and the decrees were substantially
upheld by the High Court of Saurashtra.
The
principal point for decision in these appeals is
whether the impugned orders made by the Administrator arose out of and during a.n act of State which
was not justiciable in the municipal courts. This is
the only point which has been agitated before us on
behalf of the appellant-State and very strong
reliance has been placed on the decision of this
Court in the State of Saurashtm v. JJ!emon Hoji
Ismail llaji (1) where, in circumstances S'lme as
those of the appeals before us, it was held that the
act of the Dominion of India in assuming the
administration of Junagadh was an act of State
pure and simple and the resumption of the grant in
question therein having been made by the Administrator before that act was completed and at a time
when the people of Junagadh were aliens outside
the State, the act of resumption, however arbitrary,
was an act of State on behalf of the Government of
India and was not, therefore, justiciable in the
municipal courts. It may be here noted that by
that decision this Court over-ruled tho earlier decision of tho S·rnrashtra High Court in St<1te of
Saurashtra v. j11emon Haji Ismail H£1ji Valimamad('),
(I) [1960] l S.C.R. 537.
(21 A.J,R. 1953 Saurashtra 180.
1961
Stale of SauraJhtra
v.
Jamador Mohamad
Abdulla
S. K. Das J.
1961
St.U of StWJ ashtra
v.
J•d«r Mohamad
.iOJalla
S. K. v., ].
!l74
SUPREME COURT REPORTS
[l!J62]
a decision on the basis of which the High Court
decided the cases under consideration in these
appeals.
The lcarnnd Attorney-Gen.era.I ha8 submitted
that tho decision of this Court in the Stale of
Sauraehtra v. Memon ll11ji Ismail ffaji( 1) completely
covers and concludes the present appeals. On behalf
of the respondents it has been contended thut tho
decision aforesaid proceeded on a finding that the
act.of Soote was not completed before the impugned
orders were made and that finding being a finding of
fact docs not bind the respondents who were not
parties to tho case in which the decision was
rPndered.
In tho appeals before us the main
contention on behalf of t11e respondents has been
that tho impugned orders wero made after the
a.ssumption of sovereignty by the Dominion of
Indi(l, was completed, nnd, tJ1erefore tho decision of
th is Court in tho State of Saurashtru v. M emon H aji
l8mail /faji(') is not determinative of the problem
which arisos in these appeals. It has been furth"r
argued that after full sovereignty had been aBSumed
by tho Dominion of India, the petition of the
people of Junagadh including tho rcsp,,udents was
not that of aliens outside the State, but their
position on such assumption of sovereignty was
that of citizens of India against whom there could
be no act of State and they had rights as such
citizone in respect of which thPy could ask for
relief in the municipal courta.
\Ve havo set out above, in briof outline, the
principal 110int which falls for decision in those
appeals and the respective contentions of tho
parties relating thereto in order to. high: light the
main problem presented for solution m these
appeals.
But we must first set out tho essential facts
which are relevant for the solution of the problem.
We havo already stated that the essential facts aro
the same in these appeals, though the facts relating
(I. [1960] IS. C.R. 537,
t
-
3 S.C.lt.
SUPRE~IE COURT REPORTS
975
to each of the grants made in favour of the respondents are different. We shall state the essential
facts bearing upon the rn ain problem and then
briefly refer to the grants made in each of the
cases.
India attained independence in l 947. As from
the 15th day of August, 1947, two independent
Dominions were set up known respectively as India
and Pakistan under the Indian Independence Act,
1947 (10 & ll Geo. VI. C. 30).
Under s. 7 of the
said Act, the suzerainty of His Majesty over the
Indian States including J unagadh lapsed.
It
released those States from all their obligations to
the Crown. The White Paper on Indian States
said (at page 32) :
"It was evident that if in consequence
the Indian States became separate independent entities, there would beaserious vacuum
not only with regard to the political relationship between the Central Government and the
States, but also in respect of the co-ordination
of all-India policies in the economic and otlrer
fields.
All that the Dominion Government
· inherited from the Paramount Power was tho
proviso to section 7 of tho Indian Independence Act, which provided for the continuance,
until denounced by either of the parties, of
agreements between the Indian States 1111d
tho Central and Provincial Governments in
regard to specified matters, such as Customs,
Posts and Telegraphs, etc. (Appendix IV)."
A process of accession was therefore begun and by
August 15, 1947 all the States in tho geographical
limits of India barring Hyderab<>d, Kashmir and
Junagadh had acceded to the Indian Dominion. The
Nawab ofJunagadh, however, did not accede to the
now Dominion of India by executing an Instrument
of Accession as did the other Rulers in Saurashtra.
He fled the country and the affairs of Junagadh
State fell into disorder and chaos. At the request
1961
State of Saurashtra
v.
J amadar Mohamad
Abdulla
S. K. Das].
1961
State of Sauralht:a
v.
Jamadar ,\fohamad
Abdzilla
S. h". lJa, J.
lliG
SUJ'ltEME COURT REPORTS
(19G2)
of th" Nawab's Council, the Govcrnmt•nt of India
decidE·<l to take over the administration of tho
St<ite.
On November 9,
1947_,
the
Regional
Comnii"8ioner,
WPstcm
Inrlia
and
Gujarat
Stat<>s Hegion, assumccl charge of the administration of the State on behalf of tho Government
of fudia.
A proclamation was issued on that
date which said that thn Regional Commissioner
had assumed charge of lho administration of tho
Junagadh State at 18-00 hours on Novorubor !l,
1()47.
On
November 14, 1()47
the
l~egional
Commissioner appointed Shri S. W. Shiveshwarkar
as Administrator of Junagadh State" The Administrator pused CPrta.in orders which arc the orders
impu;mcd in thPsc appoals and to which we shall
presently refer, hut we
must first complete tho
gonernl picture of political changt•s that took place
in Junagadh. In Fcbrnary, 1948 the Government of
India held a rcforcndum in Junaga.dh State to
asccrt,lin tho choice of the people in regard to
accession and tho people votod hy a large majority
in favour of acceBSion t-0 the Dominion of India. 'l'hc
Adm i11istrator thei1 decided with the appro\·al of
the Govcrnmont of India to appoint an Exeeuti>o
Council with himself as President and three other
person8 as members thoreof. ln December, 1948
the Plcctcd rcpresentu,tives of the people of
Junagadh rl•soh-ed that the administration of the
State lie ma.de over to the Government of Saura$htra and that the representatives of Junagadh ho
enabled to participate in the Constituent Assembly
of Saurashtra State with a view to framing a
common Constitution for
Saurashtra and tho
.Tnna~a<lh State. [tis necessary to state now how
this i.11tPgration took place. 01; ,Janunry :?:l, l!J48,
thirty rulers of tho principal States of Kathiawar
signed a covenant bringing into existence tho
United State of K.ithiawar (later known as tho
l.Jnikd State of Saurashtrai comprising the tNritoricH of their States for tlw welfare of the people
and entrusted to a Constituent Assembly the task
1
3-S.C.R.
SUPREME COURT REPORTS
977
of drawing up a democratic Constitution for that
State within the frame-work of the Constitution of
India to which they had already acceded. On
that date Junagadh State had no Ruler nor was any
Covenant signed on behalf of the Junagadh State.
Later, in December, 1948, the ('lected representatives of the people of Junagadh, Manavadar,
Mangrol, Bantwa,
Babariawacl and Sardargarh
recommended to the Government of India and tho
Government of the United State of Saurashtra, as
it was then called, that the administration of the
States mentioned above be integrnted with tho
United State of Saurashtra. The Rulers of the
Covenanting States
thereupon
entered imo a
Supplementary Covenant with the concurrence of
the Government of India to provide for
such
integration and for the participation of the elected
representatives of the people of these States into
the Saurashtra Constituent Assembly. Article 3 of
tho Supplementary Covenant was in these terms :
(See White l'aper on Indian States, page 249) :
"From a elate to be agreed upon between
the Government of the said States and the
Government of the United State of Saurashtra, with the concurrence of the Government of India, the administration of the said
States shall be integrated with that of tho
U.u.ituu titate of Saurashtra and thereafter
the
legislative
and
executive authority,
powers and jurisdiction of the United State
of Saurashtra shall extend to the said States
to the same extent as it extends to the
territory of any Covenanting State ............ "
'fhe administration of the Junagadh State was
thereafter integrated with that of the United State
of Saurashtra on January 20, 1949. 'fherefore, as
from that date the
legislative and executive
authority and jurisdiction of the United State of
Saurashtra extended to the Junagadh State to t.he
same extent as it extended to the rest of tho
territories of the Covenanting States .
•
W61
State of Saurashtra
v.
Jamadar Mohamad
Abdulla
S.K. Da> J.
1161
Sut1 of Saurajh/ra
••
)tm1ar1111 Ateh.an1ari
Abdulla
S. h'. Das J.
•
078
SUPREME COUR'l' REPORTS
(1D62)
1-'urther political changee tcok place after
January 20, I !.149, but with those changes we are
not concerned in the present appeals. The two
dates which arc important for our purpose arc
Xovemuer 9, 1947, when tho Regional CommiBBi·
oner first took over charge of the administration of
Junagadh and January 20, 1949 when Junagadh
merged into the C'nited State of ~aurashtra..
!\ow, as to the impugned orders mado by the
Administrator. In Civil Appeal N"o. 349 of ID58 the
nnccEtor of tho respondents had obtained granU!
from the then :N"awab of Junagndh of two villages
called Handla and V cndenvad sumo time between
the years 1865 and 1868.
A detailed history of
the grants so made is not necessary for our
purpose. On December 6, 1D47, the Administrator
mado the following order :
"It has come to the Administratol.''11
notice that Aba Salem Bin Aba :Mahmed
Hindi the alienee of Handla village,
(i)
was
maintaining
many Arab
employees of Timbdi at his house in
Junagadh,
(ii) was uttering threats to maBBacre
all Hindus of Handin village,
(iii) was
keeping
in Handla fifty
animals at the expense of the poor village
people,
(iv) did not pay any rrmuncmtion to
Dhc<lh employees of his gardl'n and was
exacting Veth from them,
(\') was buying exho~bitant eesses
from the village people,
(\·i) had eom·erted into Islam throe
Hindus, and
(vii) had taken the following arms
from Handla to Junngaclh about a month
ago:
...
3 S.C.R.
SUPREME COURT REPORTS
979
(a} 12 bore guns and (b) one M. I.
gun.
It is, therefore, ordered that the village
of Ha.ndla should be taken under the State
management. Thf' Revenue Commissioner
should make necessary arrangements for the
same an<l report compliance.
By that order the management of Handla was
taken over by the State. Though there is no
reference to the other village Venderwad in the
order, the admitted position is that the management of both the villages was. taken over. ThAn
on January 8, 1949, the Administrator passed the
following order :
"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."
This order also refers only to the Handle. estate, but
the admitted position is that both the villages were
resumed by the order of the Administrator. It is
the order dated January 8, 1949, which is impu"ned by the respondents in this appeal.
0
In Civil Appeal No 497 of 1958 the grant was
in respect of a bungalow or building known as
'Datar Manzi!'. On March 9, 1948 the Administrator made the following order:
"The State building situated near Gadhrup
Wada at Junagadh, was granted to Khan Shri
Abdullakanmiyan Mahomedkhanmiyan, hereditarily by way of gift,
under Dewan
Daftar Tharav No. 337:) dated 1st August,
1930.
The said Tharav is hereby cancelled and
it is hereby ordered in the interest of the
State that the said building along with all
the superstructures thereon should be resumed
and
managed
by the
State as
State
t ,,
proper y.
1961
State of Saurashtra
v.
J amadar ilJohamad
Abd,lla
S. K. Das J.
State of Sa11rashfra
v .
. Jtll'lllJdtn Mohamad
Abdulla
S. K. Dar J.
•
980
SUPREME COlJHT REPORTS
(1962)
In Civil Appeals Nos. 220 an<l 221 of 1958
the impugned order is datod July 27, 1948, and
is in these terms:
"Twentv five Santis of land from tho
village of Khokhar<la. undor Vantha.li llfahal
was
granted as
a.
gift
heroditarily to
l\[r. l\fohamrd Alxlulla, son of late Jamada.r
A hdulla Moosa under Hazur Farm'1n No. 27!)
dated 30th April, Hl43.
In vicY!' of the principles of Alienation
S(•ttlement of 18!l7 no grant can be wantonly
fovourocl to anybody in contravention of the
wnll ostablished principles of r<'sumption
atta<'hing to such grants.
It is hereby ordered that Hazur Farman
J\o. 279 datC'd 30th April, 1043, is canrollod
and the land in question should be rC1Rumerl
by the State forthwith by setting aside tho
settll'ment made thereon."
It will he noticod from what has been stated above
thn.t the impugner! orders were all made after
No\•ember 9, 1947, but before January 20, 1049.
The question before U9 is whether the orders wore
made in pursuance of acts of Sta.to not justicia.blo
in the municipal courts.
There can be no <loubt that if the doci8ion of
this Court in Stale of Sauraahtm v. Menwn Ilaji
Jmnail Haji (') applits, then these appeals must be
allowed.
Learned counsel for the respondents has
however sought to distinguish that decision on tho
p-round that the decision proeeede<l on the footing
that the Dominion of India assumed sovereignty
over .Tunairadh on Jnnunry 20, 1949.
His eonten ti on is that when tho Dominion of India assumed
charge of the administration of Junngadh State on
Novcmlmr 9, 1947, throu!(h tho Rogional Commis·
sioncr, \Vestern India and Gujarat States Region,
th(~re \Vas a eomplote cha~e-over of sovereignty,
the net of Stato wa.~ complete, and the Dominion
of India became th<' new sovereign; thereafter,
(II [1960] l.S.C.R. 557.
3 S.C.R.
SUPREME COURT REPORTS
981
the people of Junagadh including the respondents,
so the argument proceeded, became citizens of the
Dominion of India and had rights as such citizens
in respect of which they could ask for relief in the
municipal courts. It would be apparent that this
argument consists of two steps: the first step in
the argument is that there was a complete changeover of spvereignty on November 9, J 94 7 and the
act of State was complete; the second step in tho
argument which is really based on the correctnPss
of the first step is that on snch a change-ovt'r of
·sovereignty the people of. Junagadh, including the
respondents, became citizens of the Dominion of
India and were no longer aliens outside the Dominion; We shall now consider the validity of the first
step in the argument.
In doing so we must
make it clear that we must not be understood
to have assented to the submission of learned
counsel for the respondents that a finding as to
.. change-over of sovereignty or completion of an
act of State, is a finding of fact pure and simple.
In our view, the question essentially is what inference in law should be drawn from the fact
proved or admitted relating to the change-over of
sovereignty.
As the matter was not argued from
this stand point in the State of Saurashtra v. Memon
Haji Ismail Haji('J, we have allowed learned counsel
for the respondents to address us on this question.
Learned counsel for the respondents has made
a two-fold submission: firstly, he has submitted
that the question as to when the change-over of
sovereignty took place is a political question and
must or should be referred to the Government of
India for opinion and the Court should abide by
that opinion; secondly, he has submitted that on
the facts admitted in this case, it should be held
that there was a complete change-over of sovereignty on November 9, l 947, and the act of State was
complete. We do not think that either of these
two submissions of learned counsel for the respondents is correct. On the first snbmission he has
(1) [1960J 1 s.c.R: 537,
1961
Stat~ of Saurashtra
v.
J amadar Mohamad
Abdulla
S. K. Das .J,
,!<,tote of Sauraslztra
••
Jamadar Mohamad
.1!dullah
S.J:.-DasJ.,
I
SUPREME COURT REPORTS
[1962)
drawn our attention to.para. 603 at·pages 285-286,
Vol. 7 of Halsbury's ·Laws of England, 3rd 'Ed.
That paragraph is in these terms:
"There is a class of facts which are con-
-venie~tly 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:
·
·
(I) Whether a state of war exists between
the British Goveq1ment 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_ whetherit has ended;
(2) ··whether a particular - territory :is
hostile, or foreign, or within •the boundaries
of a particular state;
_
(3) \vhether and when a particular govern·
·' ment is to be recognised as the. government of
an independent state;
(4)The status of.a person claiming immu-
' nity from judicial process . on the ground of
diplomatic privilege.
.
The court :takes·•judiciaJ.motice of such
facts of state, and ·for ·this •purpose, in any
case of uncertainty, seeks information from a
Secretary of State; . and the information so
received is. conclusive.
Learned counsel has alsoreferred us to some of the
English' decisions on ·which the statements in the
paragraph quoted above are based. \Ve consider.it
unnecessary to examine those decisions. It appears
-to us that the question with which we are concerned
in .the present appeals is -iot a: question on "hich it _
·is necessary to seekinfe ,ation from ,the .relevant
department of the Gov<L11ment of India; for one
-thing, it does not appear :to us that there is any
~ uncertainty ill' the matter; . secondly, as we. shall
..
,
I
•
•
--
,-,.-~--
3 S.C.R.
SUPRE:."IIE COURT REPORTS
983
· presently show, the· Government of India in the
relevant department has already spoken with sufficient chrity in the White Paper on Indian States
with regard to the political changes in Junagadh
and what the Government of India has stated therein shows clearly enough that there \Vas no changeover of assumption of sovereignty on· November 9,
1947 in the sense which learned counsel for · the
respondents has c·ontended for; lastly, it appears
to us that the question with which we are concerned
in these appeals is not essentially a question as to
any disputed "facts of State" the determination of
which is solely in the hands of government: rather
it is a question which must be determined by the
court. What we have to determine in these appeals
is not the status or boundaries of a particular State
territory, but th~ validity or otherwise of the pica
taken on behalf of the appellant-State that the impugned orders made by the administrator were acts
of State not justiciable in the municipal courts.
There is a long line of decisions in which . such a
· plea has been determined by courts of law without
the necessity of obtaining the opinion of Govern·
ment. The plea is really a plea with regard to the
maintainability of the suits brought by the respondents and must be determined by the courts concerned. At one stage of the arguments learned counsel
for the respondents referred us to s.6 of the Extra
·Provincial Jurisdiction Act, 1947 (XLVII of 1947)
and contended tl1at under that section it was obligatory on this court to refer the question to the Central Government. When however it was brought to .
his notice that s. 6 in terms did not apply to the
proceedings out of which these appeals have arisen
he submitted that even if it be not . obligatory to
refer the question to the Central Government, it is
expedient that it should be so referred inasmuch
as the answer to tho question depends on "the
extent of the jurisdiction" which the Dominion of
India assumed in Junagadh on November 9, 1947 ...
This, 'according to learned counsel, is a "fact of·
State" which only Government can determine.
1961
Slate of Saurashtra.
v.
J amad'1r JI oh.amrid
Abdult".l
•
. 1961
Stat4 of SaurashlTa
v,
Jamaclar Af ohamad
. Ahaullah
8.K.DasJ.
.
-~------- --
984
SUPREME COURT REPORTS
,(1962]
\
. We have already stated there is no uncertainty
about the :racts on which the plea of the appellantState is based, and Government has already spoken
about them with sufficient clarity. What are these
facts and how has Government spoken?
We refer
to para. 223 at pages 113 and 114 of the White
Paper. on Indian States issued by the Government
of India, Ministry of States, a publication to which
, this Court has referred in several earlier decisions as
: containing the authentic opinion of Government on
tho political questions involved.
·"Tho 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 tho 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, tho elected
representatives of the people of Junagadh
resolved that tho administration of tho State
be made over to the Government ofSaurashtra
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 tho Junag'ldh State. Similar resolutions
were adopted by the representatives . of
Manavadar, l\Iangrol, Bantwa, Babariawad
and Sardargarh. Accordingly a Supplemen-
·. t~ry Covenant (Appendix 0 , )C:XXVI), _was
•
3 S.C.R. SUPREME COURT REPORTS
985
executed by the Rulers of Kathiawar States
with a view to giving effect to the aforemen·
tioned resolutions.
The administration of
Janagadh was taken over by the Saurashtra
Government on January 20, 1949, andof the
other States some time calling. Accordingly
the Constitution treats Junagadh and these
States as part of_ Saurashtra."
It would be clear from the aforesaid paragraph that
the various steps in the assumption of sovereignty
over Junagadh by the Dominion of India, between
the dates November 9, l!J47, and January 20, 1949,'
were these:
(I) The administration of Junagadh was
taken over by - the_ Government of India on
November 9, 1947 at the re>quest of the Nawab'1
Council;
·
(2) during the period the Government of India
held charge of the State, an Administrator appointed
by the Government of India assisted by three
popular representatiyes comlucted the administration of the State;
(3) in February, 1948 there was a referendum
and the people of Junagadh Toted in favour of accession to India; hut no actual accession took place by
the execution of any Instrument of Accession;
(4) in December, 1948 the elected representatives of the people of Junagadh resolved that the
Admini~tration of the State be made over to the
Government of Saurashtr'l and the representatives
of Junagadh be enabled to partioipat-0 in_ the Constituent Assembly of Saurashtra State;
(5) a
Supplementary Covenant (Appendix
XXXVI of the \Vhite Paper) was executed by the
Rulers of Kathiawar StatM with a view to giving
effect to the r<'solutions aforesaid; and --
-
(6) lastly, the administration of Junagadh was
taken over by the -Government of Sauraihtra on
,Tanuary 20, 1949.
1961
St1116 •f Sauraslur«
v.
Jamad•r ~lohamai
.Aldullah
S. K. D" J.
•
•
19CJ
8 tat.; of Sauras.htra
v.
Jarnadar Afohamad
Abdull11
' s: K'. Da.r J.
986
SUPREl\IE COURT REPORTS
'In 111/s. Dalmia Dadri Cement Co., Ltd. _ v. The
Commissioner of Income-tax (1) this Court observed.
"In law, therefore, the process of acquisi·
tion of new territories is one continuous act of
State terminating on the assumption of sove-
- reigri 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 citize11ship commences when the act
of State terminates- -and the_ two therefore
cannot co-exist.''
. There rriay be cases where by a treaty or an agreement
there is a change' over of de jure rnvcreignty at one
and the sanie time and in·s110h a circumstance the
change-over may not be a process, but that is not
what happened in the -case of Junagadh.
The
administration of Junagadh fell into chaos and
disorder and the Government of India stepped in
at the request of the -Nawab's Council and took
charge of the administration through an Administrator on November 9, 1947,. the Ruler having fled
the country before that date. It is clear to us that
there was no change-over of de jure sovereignty on
that date. Junagadh State still continued as such
and did not cease to exist; _ otherwise there would
be no meaning in the referendum held in February,
l!HS, or the resolutions passed in December, 19-18,
by the elected representatives of the people of
Junagadh. · Nor, would· there be any meaniJ1g in
the Supplementary Covenant executed by the Rulers
of Kathiawar States. It is also worthy of not.,
that ·there was no accession to India by the
Junagadh State by the execution of any I••strument
of Accession.
We may in this connection refer to
ss. 5 and 6 of the Government of India Act, 193;;,
as they stood at the relevant time. Section
5 stated inter alia that the Dominion of India shall,
(I) [1959] S. C.R. 729, 7H.
•
•
:1 S.C.R.
SUPREME COURT REPORTS
987
as from the 15th day of August, 194 7, be a Union
comprising (a) the Governors' Provinces, (b) the
Chief Commissioners' Provinces, ( c) the Indian
States acceding to the Dominion in the manner
provided bys. 6, and (d) any other areas that may
with the consent of the Dominion ·be included in
the Dominion. Junagadh was neither a Governor's
nor a Chief Commissioner's Province. It did not
accede in the manner laid down in s. 6. It was not,
therefore, a State acceding to the Dominion. Nor
do we think that the territory of Junagadh State
was included within the territory of the Dominion
in the sense of cl. (d) of s. 5 as from November 9,
19-17.
The pro,ess of assumption of sovereignty
was not yet complete and the Dominion of India
did not treat the territory of Junagadh as part of
its own territory. The Dominion Government gave
its concurrence to the Supplementary Covenant
executed by tho Rulers of Kathiawar by which the
States of Junagadh, Manavadar, J\.fangrol, Bantwa,
Babariawad and Sardargarh were to be integrated
with Saurashtra. It is significant that in this Supplementary Covenant Junagadh was mentioned as a
separate State, the administration of which was to
be integrated with the United State of Saurashtra.
It was only when this integration took place that
Junagadh ceased to be a separate State.
This
position appears to us to be beyond any doubt and
has been made sufficiently clear by the statements
made in para. 223 of the White Paper on Indian
States.
Learned Counsel for the respondents has
relied on certain observations made in well-known
text-books on International Law and has contend eel
that State sovereignty and State jurisdiction are
complementary and co-extensive; and a right of
property and control exercised by the State is really
a right of territorial severcignty and therefore the
acquisition of territory by a State can mean nothing
else than the acquisition of sovereignty over such
territory.
(See Schwarzenberger:
International
1981
State of Saurashlra
v.
Jamadar Moh11mad
Aldutla
S. K. Das J.
1Q61
St.sU tJf S.wa.shlra
v.
J-im If,,,,,,,,.,
A.IC/I•
s. r.. v., ].
•··
988
SUl'REME COURT REPORTS
[1962]
Law, 1945, Vol. I, pa.ge i!J: Cha.rles Cheney Hyde:
International Law, 2nd revised t•dition, Viii. I, pa!Ze
319; Oppenheim's International Law, 8th Edn. Vol.
I, page 545).
Ho has contended that in view of the
aforcsa.id observations, it must be held that the
Dominion of India. a.ssumed sovereignty over .Junagadh on November !J, I!l47; because, so learned
coimscl contends, exercising control over a particular territory is exercising sovereignty over it. We
do not think that the observations to which learned
counsel has referred help in the solution of the
problem before ue.
In cases where the acquisition
of new territory is a continuous process, a distinction must be made bot ween def acto exercise of
control and de ju.re assumption of sovereignty.
The problem before us is, as was stated in M/s.
Dalmia Dadri Cement G<'J., Ltd. v. 'l'he Commissioner
of lnwme-tax ('),as to when the act of State was
complete; in other words, when did the assumption
of sovereign powers de jure by the now sovereign
over territories acquired by it take place? The
problem is really one of State succession; namely
succeBsion to International Persons as understood
in International law.
Such a sucoessiou takes place
when one or more International Persons take tho
place of another International Person in consequence
of cert;dn changes in the latter's condition; there
may hn universal succession or partial succession.
In the case before us, as long as Junagadh Ste.to
continued as such, there was no such succession and
even though tho Dominion of India took over the
administration of ,Junagadh and exercised control
therein, it did not assume de jure sovereignty over
it. Therefore, the act of State did not termina.te till
January 20, I!J49, when tho Dominion of India
assumed de jure sovereignty over Junagadh by its
integration into the Unite<! State of Saurashtra.
It is perhaps necessary here to refer to two
decisions on which
learned counsel for
the
( 1) [1959] S· C.R. i29, 741.
,..
-
-
-
3 S.C.R. SUPREME COURT REPORTS
· 989
respondents has relied: In re: Southern Rhodesia(') and
Sammut v. Strickland (1). In the first decision it was
observed in connection with the conquest of certain
territories in Southern Rhodesia, that a proclamation of annexation is not essential to constitute the
Crown owner of the territory as completely as any
sovereign can be owner of lands publici juris; a
manifestation of the Crown's intention to that effect
by Orders in Council dealing with the lands and
their administration, is sufficient for the purpose.
These observations were made in the context of a
question not between State and State but between
1overeign and subject. Lord Sumner said:
"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 dis9.dvantages) of publicity and
precision. But it is only declaratory of a
state or fact. In itself it is no more indispensable than is 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 cerrmonial or occasion.
The Crown has not
bound itself towards its subjects to determine
its rhoice 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,
(l) [1919) A. C. 211.
(2) [1938) A. C.