# [1955] 2 S.C.R. 164

- **Citation:** [1955] 2 S.C.R. 164
- **Court:** Supreme Court of India
- **Decided:** 1953-09-22
- **Bench:** l\ImrnERJEA, Das, Bhagwati, Venkatarama · Ayyar, JAFE~ lllIAM
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1955-2-s-c-r-164-1485
- **Pages:** 22

## Headnote

Bombay Merged Territories and Areas (J agirs Abolition) Act, 1953
(Bombay Act XXXIX of 1954)-Whether ultra vires-Agreement of
Merger with, and letters of guarantee to, .Rulers of States by the G<YL-
. ernment of India-Clause 5 of the letters of guarantee-Scope-Legislative powers of States under Article iU6 of the Constiiution-Limita•
· tion• thereon-Article'363 of the Constitution-Bar to Courts' jurisdiction-Fundamental rights-Articles 14, 19(1)(/), 31(2) of Con·
stitution-Applicability in view of Article 81-A(2)( a).
·
·
·
Under Article 246(2) and (3) of the Constitution, the Legislature of a State has plenary powers to legislate with respect to
matters enumerated in Lists II and III of the Seventh Schedule to
~he Co11stitutio11.
The legislative competence of the State Legisl~·
)
2S.C.R.
SUPREME COURT REPORTS
165
ture can only be circumscribed hy express prohibition contained in
the Constimt[on itsdf and u.nless there is any provision in the Constitution expressly prohibiting legislation on a subject either absolutely or conditionally, there is no ·fetter or limitation on the plenary powers which the State Legisl~ture enjoys to legislate on the
ropics enumerated in Lists II and III of the Seventh Schedule to the
Consticution. In view of Ar.icle 246 of· the Constitution, no curtailment of legislative competence can be spelt out of the terms of
Clause 5 of the Letters of Guarantee given by the Dominion Government to the Rukrs of "States" subsequent to the agreemnts of
Merger, which guaranteed, inter alia, the continuance of Jagirs in
the merged "St1tes". Indeed, Clause 5 of the Letters of Guarantee
itself saved the legislative right of the State of Bombay subject to
the limitation that enactments of the State shall not be discriminatory in nature.
Attac1<s on the validity of the said Act on the basis of the rights
guaranteed by Articles 14, 19(l)(f), and 32(2) of the Constitution
cannot be countenanced in view of Article 31-A(2)(a) of the Constitution.
Article 363 (1) of the Constitution barred the jurisdiction of
Courts in disputes arising out of any provision of the agreements of
merger and the Letters of Guarantee.
Held, that Bombay Act XXXIX of 1954, the impugned Act,
was intra vzres the State Legislature.
Petitions Nos. 337 to 349, 365, 366, 481 and 690 of 1954 Dismi,sed.
Petition No. 364 of 1954 Adiourned.
Vajesingji v. Secretary of State (51 I.A. 357), Secretary of
State v. Sardar Rustam (68 I.A. 109),_ State of Savai~ella v. Union
of India (1951 S.C.R. 474), Thakur Jagannath v. The United Provinces ([1943] F.C.R. 72), Thakur Jagannath v. The United Provinces ([1946] F.C.R. 111), referred to.
0RIGWAL JurusmcnoN: .Petitions under Article
12 of the Constitution for the enforcement of fundamental rights
K. L. Ga11ba, (Gopal Singh, with him), for the
Petitioners in Petitions Nos. 337 to 343 and 481 of
\954.
K. l. Gauha, (S. D. Sekhri,
with him), for the
Petitioners in Petitions Nos. 344, 446
and
349 of
1954.
K. l. Gauba. (R. Patnaik and S. D. Sekhri, with
himL for the Petitioner in Petition No. 345 of 1954.
22-8 SCJ/ND.'82
19$5
Maharaj -Umeg
Singh and "'thers
V.
The State ef
Bombay and otk~rs
1955
Maharaj Umeg
Sin,I• dhd otlt~rs
v •
166
SUPREME COURT REPORTS · [1955]
K .. L. Gauba, (N. C. Chakravarthy
and S, D.
Sekhri, with him), for the Petitioner in Petition No. 347
of 1954.
.so~%;':,;d:{hers
K. L. Gauba, (8. Moropant and S. D. Sekhri, with
him), for the Petitioner in Petition No. 348 of 1954.
Rajni Patel and M. S. K. Sastri, for the Petitioner in Petition No. 364 of 1954.
Rajni Patel and I. N. Shroff, for the Petitioners in
Petitions Nos. 365 and 366 of 1954.
· J. 8. Dadachanji and Rajinder Narain, for the
Petitioner in Petition No. 690 of 1954.
M. C. Setalvad, Attorney-General for India, C. K.
Daphtary, Solicitor-General for India (P. 4. Mehta,
R. H. Dhebar for P. G. Gokhale, with them), for the
Respondents in all Petitions.
1955. April 6. The Judgment of the Court was
delivered by
BHAGWATI J.-These petitions under arti

## Text

_Characters 0–39,364 of 47,124. This is a partial read: ask again with offset=39364 for what follows._

. ·•
' \
\ .
'. \ ''' 164
SUPREME COURT .REPORTS
[1955]
•,
· 1955
High Court already pronounced against his conviction
after a full hearing in the presence of both the parties
. u.!.s~~hoJ>ra on notice being issued by the High Court in that bestate of &mbay half.· This right of his is not curtailed by anything
contained in the earlier provisions of section 439 nor
BhagwatiJ.
by anything contained in either section 369 or section
·· 430 of the Criminal Procedure Code.
1955
A}ril 6
We are therefore of the opinion that the decision
reae,hed by the High Court of Bombay in the case
under appeal was wrong and must be reversed. We
accordingly allow the appeal and remand the matter
back to the High Court ofJudicatureatBombaywith .
a direction that it shall allow the Appellant to show
cause'against his conviction and dispose of the same
ticcording tq law.
·
··
· ·
BY THE CouRT.-The appeal is allowed and the
order of the High Court of Bombay is . set aside, and
thematter is sent back to the High Court with a direction that it shall allow the appellant an opportunity
to show cause against his conviction and dispose of
the matter according to law.
.
l\IAHARAJ UMEG SINGH AND OTHERS
v.
THE STATE OF BOl\IBAY AND OTHERS.
[l\ImrnERJEA, C.J., DAS, BHAGWATI, VENKATARAMA
·
AYYAR and JAFE~ lllIAM JJ.]
Bombay Merged Territories and Areas (J agirs Abolition) Act, 1953
(Bombay Act XXXIX of 1954)-Whether ultra vires-Agreement of
Merger with, and letters of guarantee to, .Rulers of States by the G<YL-
. ernment of India-Clause 5 of the letters of guarantee-Scope-Legislative powers of States under Article iU6 of the Constiiution-Limita•
· tion• thereon-Article'363 of the Constitution-Bar to Courts' jurisdiction-Fundamental rights-Articles 14, 19(1)(/), 31(2) of Con·
stitution-Applicability in view of Article 81-A(2)( a).
·
·
·
Under Article 246(2) and (3) of the Constitution, the Legislature of a State has plenary powers to legislate with respect to
matters enumerated in Lists II and III of the Seventh Schedule to
~he Co11stitutio11.
The legislative competence of the State Legisl~·
)
2S.C.R.
SUPREME COURT REPORTS
165
ture can only be circumscribed hy express prohibition contained in
the Constimt[on itsdf and u.nless there is any provision in the Constitution expressly prohibiting legislation on a subject either absolutely or conditionally, there is no ·fetter or limitation on the plenary powers which the State Legisl~ture enjoys to legislate on the
ropics enumerated in Lists II and III of the Seventh Schedule to the
Consticution. In view of Ar.icle 246 of· the Constitution, no curtailment of legislative competence can be spelt out of the terms of
Clause 5 of the Letters of Guarantee given by the Dominion Government to the Rukrs of "States" subsequent to the agreemnts of
Merger, which guaranteed, inter alia, the continuance of Jagirs in
the merged "St1tes". Indeed, Clause 5 of the Letters of Guarantee
itself saved the legislative right of the State of Bombay subject to
the limitation that enactments of the State shall not be discriminatory in nature.
Attac1<s on the validity of the said Act on the basis of the rights
guaranteed by Articles 14, 19(l)(f), and 32(2) of the Constitution
cannot be countenanced in view of Article 31-A(2)(a) of the Constitution.
Article 363 (1) of the Constitution barred the jurisdiction of
Courts in disputes arising out of any provision of the agreements of
merger and the Letters of Guarantee.
Held, that Bombay Act XXXIX of 1954, the impugned Act,
was intra vzres the State Legislature.
Petitions Nos. 337 to 349, 365, 366, 481 and 690 of 1954 Dismi,sed.
Petition No. 364 of 1954 Adiourned.
Vajesingji v. Secretary of State (51 I.A. 357), Secretary of
State v. Sardar Rustam (68 I.A. 109),_ State of Savai~ella v. Union
of India (1951 S.C.R. 474), Thakur Jagannath v. The United Provinces ([1943] F.C.R. 72), Thakur Jagannath v. The United Provinces ([1946] F.C.R. 111), referred to.
0RIGWAL JurusmcnoN: .Petitions under Article
12 of the Constitution for the enforcement of fundamental rights
K. L. Ga11ba, (Gopal Singh, with him), for the
Petitioners in Petitions Nos. 337 to 343 and 481 of
\954.
K. l. Gauha, (S. D. Sekhri,
with him), for the
Petitioners in Petitions Nos. 344, 446
and
349 of
1954.
K. l. Gauba. (R. Patnaik and S. D. Sekhri, with
himL for the Petitioner in Petition No. 345 of 1954.
22-8 SCJ/ND.'82
19$5
Maharaj -Umeg
Singh and "'thers
V.
The State ef
Bombay and otk~rs
1955
Maharaj Umeg
Sin,I• dhd otlt~rs
v •
166
SUPREME COURT REPORTS · [1955]
K .. L. Gauba, (N. C. Chakravarthy
and S, D.
Sekhri, with him), for the Petitioner in Petition No. 347
of 1954.
.so~%;':,;d:{hers
K. L. Gauba, (8. Moropant and S. D. Sekhri, with
him), for the Petitioner in Petition No. 348 of 1954.
Rajni Patel and M. S. K. Sastri, for the Petitioner in Petition No. 364 of 1954.
Rajni Patel and I. N. Shroff, for the Petitioners in
Petitions Nos. 365 and 366 of 1954.
· J. 8. Dadachanji and Rajinder Narain, for the
Petitioner in Petition No. 690 of 1954.
M. C. Setalvad, Attorney-General for India, C. K.
Daphtary, Solicitor-General for India (P. 4. Mehta,
R. H. Dhebar for P. G. Gokhale, with them), for the
Respondents in all Petitions.
1955. April 6. The Judgment of the Court was
delivered by
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 XXXIX of 1954 which was passed
by the Legislature of the State of Bombay to abolish
jagin in the merged territories and merged areas in
the State of Bombay. The Bill. was passed by the Legislature on the .22nd September 1953 and received the
sanction of the Upper House on the 26th September
1953. The President gave his assent to it on the 13th
June 1954 and by a notification dated the 15th July
1954 it was brought into effect from the !st August
1954. In view of the notification the Petitioners filed
these petitions on the 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 application~ made to this CQurt
on the 31st July 1954 the operation of the impugned
Act was stayed· pending the hearing and final disposal
of the petitions,
2 S.C.R.
SUPREME COURT REPORTS
167
The Petitioners in Petitions Nos. 337, 344, 345, 346,
195$
347 and 349 of 1954 are relations of the Ruler of the
Mdharai Umet
erst while State of Idar. The Petitioners in Petitions Sinth and o111ers
Nos. 338 and 342 of 1954 are relations of the Ruler of
The St~te of
the erstwhile State of Chhota Udaipur. The Peti- Bombayandother
tioners in Petitions Nos. 339 and 341 are relations of
the Ruler of the erstwhile 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. 3415 of 1954 is a relation of the Ruler of the erstwhile State of Ba:nsda. 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 n 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.
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.
All these Petitioners have challenged the vires of
the impugned Act mainly relying upon the agreements
cf merger entered into by the Rulers of the respective
St1tcs with the Dominion of India on or about the
J 9th March 1948 and the collateral letters of guarantee
B/iazwari J.
168
SUPREME COURT REPORTS
[1955]
J9jS
passed by the Ministry of States in their favour on
Maharaj Umeg subsequent dates, the contents of which were regarded
Singh an4 otliers as part of the merger agreements entered into by them
Th;;,~,. 'If
with the Dominion of India.
BtJprbay and otlrers
Tht merger agreements were in the form given in
Appendix XIII to the White Paper at page 183:
BhagwatiJ.
•
of
"FORM OF MERGER AGREEMENT SIGNED
BY RULERS OF GUJARAT AND DECCAN
STATES
AGREEMENT MADE THIS
day
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 eariy 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 I.
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 cqmpetent to exercise the said powers, authority and jurisdiction in such manner and through such
agency as it may think fit.
ARTICLE 2.
Tlie
shall with effect
from the said day be entitled to receive from the
revenues ef 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
Ruier and his family. including expenses on account of
his personal staff, maintenance of his
residences .
2 $.C.R.
SUPREME COURT REPORTS
169
marriages and other ceremonies, etc. and will neither
be increased nor reduced for any reason whatsoever.
The said sum may be drawn by the
m four equal instalments in advance at the
beginning of 'each quartei: by presenting bills at the
State Treasury or at such other Treasury as may be
specified by the Dominion Government.
ARTICLE 3.
The
shall be entitled to the full
ownership, use and enjoyment of all private properties
(as distinct from State properties) helonging 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.
Ir 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 bfoding 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 whe;:reof Mr. Vapal Pangunni
Menon, Secretary to the Government of India in the
Ministry of States, has appended his sigmtture on behalf and with the authority of the Governor-General
of India and
has appended his
1955
Maharaj Umi!g
Singh and others
v.
The State of
Sombay and others
BhagwatiJ.
1955
Maharaj Un1e1
170
SUPREME COURT REPORTS
[1955)
Signature on behalf of himself, his heirs and successors,
of
Singh and others Dated
v.
,•
Secretary to the Government
of India, Ministry of
The State of
Bombay wrd others
BliagwatiJ ...
States".
The l!!tters of guarantee' subsequently executed by
the Ministry of States in
favour of the
respective
Rulers contained the following guarantees:-
"(!) 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. Tt will be free
of ail taxes, whether imposed by the Government of
Born bay 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, residence>, 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
member~ 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.
14) 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
2 S.C.R.
SUPREME COURT REPORTS
171
on lst 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
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
1918 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) AH emblems, insignia, articJes 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 <tfter the l st of
April 1948 and is considered by the Government of
fodia to be palpably
unjust or
unreasonable. The
decision of the Government of India in this respect
will be final.
<R) No enquiry shall be made nor shall proceeding~ lie in any Court in India against you, whether in
a oersonal capacity or otherwise, in respect of anything done or omitted to be done by you or under
vonr authority during the period of your administration of the State.
(9) Every question of disnuted succession in reg.ard to a Gujarat State which has signed an agreement integrating the administration of the State with
that of the Province of Bombav shall be decided bv a
CNmcil of Rulers of Gujarat States after referrin!! it
to the Hi!!h Court of Bombav and in accordance with
the ooinion given by that Hi!!h Court. All questions
relating to the rh?hts.
dfonities and orivileges of tht3
Ruler will also he considereo
bv the Council
of
Rulers who shaJI make suitable recommendationc; to
the Government of Bombay and the Government of
India. The Council shall consist of the Rulers of all
1955
Maltaraj Umeq
Singh and orh~s
v.
The State of
Bomba;• and others
Blrafwati J.
172
SUPREME COURT REPORTS
[1955]
1955
full _jurisdictional Gujarat States, whether salu~e or
Maharaj Umeg non-salute. No ruler who is less than 21 years of age
Singh ai; others shall however be a member of the Council. The
BoTlbie s1a1de 01,
Council will elect one of its members to be the Presi-
,,, ay an ot11ers
.
,
--
dent of the Counc1l. The President and the members
Bhagwari.f.
of the Council will hold office for a term of five years
from tht· date on which they enter upon the duties of
their respective offices.
2. The contents of this letter will be regarded as
part ot the merger agreement entered into by you
with the Governor-General of India".
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
<Jwnership of the
jagirs existing on the !st
Ap_ril,
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, it any, or in any event had no legislative competence to enact any legislation depriving the holders
of the jagirs oi 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 ownet~hip 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.
Jt was contended on the other hand on behalf of
the State of Bombay that the agreements of merger
and the letters of p;uarantee were executed bv the
Dominion of India and were not binding on the ·state
of Bombay, that the Petitioners were not parties to
the aitreements of mer11er and letters of p;uarantee and
that thev were not entitled to enforce the same. that
even if they be treated as parties thereto the disoute
between the parties arose out of the provisions of the
. a'!reements and covenants which were entered into or
2 S.C.R.
SUPREME COURT REPORTS
173
executed before the commencement of the Constitution by the
Rulers of the respective states and to
which the Government of Dominion of I1,dia 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 sucli prohibition could be soelt out of the terms of clause 5 of
the letters of guarantee and that the impugned Act
was intra vires the power of the
State Legislature
and could not be challenged. Once that position was
established it was
further ur_~ed that the
jagirs in
w1estion were estates within the definition of the expression in article 3 l-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 modificaticm 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
Ill 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 whatev~r discriminatory, fair and adequate compensation
having been provided for the abolition of the jagirs
and the States and their
subjects not having been
dealt with in any discriminatory manner as compared
wifh the subjects of the original State of Bombay.
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
ohliQation of the Dominion
Government devolved
upo~ the Province of
Bombay when the
erstwhile
State5 which were parties to the agreements of merger
Z3--S ~IiND/82
Maharaj Umeg
Singh and others
v.
The State of
Bombay and'others
Bhagwat I J.
174
SUPREME COURT REPORTS
[1955]
1955
and the letters of guarantee became merged in the
Mn/UJrlli Umeg Province of Bombay,
under clause 8 of the States'
Sin;'il and 01/iers Merger (Governors' Provinces) Order, 1949 (Appendix
Thelia1eof
XLIV. White Paper, Page 297), that these obligations
!k>mhnyandotlie~<were thus deemed to have been undertaken by the
Ilha11wa1i J..
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 the 26th January
1950 all rights, liabilities and obligations of the Government of each Governors' Province whether arising
out of anv 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.
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
tar 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 ea 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 '.lnly 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 under-
. taken by the Dominion of India qua. the States and
their subjects. It is therefore arguable that the Rulers
2S.CR.
SUPREME COURT REPORTS
175
of the erstwhile States as also their subjects would be
m a position to enforce these obligations. This position was however sought to be negatived by relying
upon the following observation of their Lordships of
the Privy Council in Vajesingji .Joravarsingji v. Secre·
tary of State for India in Council(') at page 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 hither to 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 en~orce these stipulations in the municipal Courts.
The nght to enforce remains only with the high
contracting parties".
These observations were
quoted with approval in
Secretary of Stltte v. Sardar Rustam Khan & Others<')
at page J 24. It was therefore
urged that it will he
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
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
thev would be faced with the bar to the maintain-
,
ability of the petitions under article 363 of the Constit11tion which lays down that neither the Supreme
(I) 51 Indian :\ppcals 357.
(2) 68 Indian Appeals 109.
1955
Maharaj Umeg
Singh and other.<
v.
The State Qj
Bombay and others
Bhagwati J.
176
SUPREME COURT REPORTS
[ 1955]
l9SS
Court nor any other Court shall have jurisdiction in
Maha;aJ umeg any dispute arising out of any provision of a treaty,
Siniftand others agreement, covenant. engagement, sanad or other
The;,~,. of
similar instrument which was entered into or executed
Bombay and others before the commencement of the Constitution by any
Bha;;;;;,; J.
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.
It was therefore urged on behalf of the Petitioners
that thi: 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
(Ill the subject of the abolition of .iagirs. 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
Pt:titioners, 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
2 S.C. R.
SUPREME COURT REPORTS
177
claim to enforce the Petitioners'· rights under the
1955
letters of guarantee, and the disputes therefore were
Maharaf Umeg
clearly in respect of the agreements of merger and Singh and others
the letters of guarantee and were covered by article
The Si~te of
363< 1) of the Constitution. A similar ::ontention had Bombay and oriJers
been raised on behalf of the plaintiffs in State of
Bhagwati J.
Seraikella and Others v. Union of India and Anot.her(
1
)
and was repelled by Kania, C.J. at page 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
aJJ.d 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'~ rfo:ht under the Instrument of Accession. The
dispute~ therefore in my opinion clearly fs 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
undestaken 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.
(I) 1951 S.C'.R. 47·1.
178
SUPREME COURT REPORT8
[i955]
1955
It that was the position the jurisdictwn of this
Maharaj umec Court was ousted and this Court could not interfere
Singh u11d others in those disputes. Assuming however that the PetiThe 1t~te of
tioners wer!: entitled to enforce the obligation and
Bombay and others guarantee incorporated in clause 5 of the letters of
BhacwatiJ.
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 sub1ect either absolutely or conditionaJly, there
is no fetter or limitation on the plenary powers
which the State Legislature enjoys to legislate on the
topics enumerated in the Lists II & III of the Seventh
Schedule to the Constitution. It was concecied on
behalf of the Pet;tioners that the topic cf legislation
which was covered by the impugned Act was well
within List II 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 or 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 there"
fore the State of Bombay were precluded from enacting anv 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 guarant~e,
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 cliscrimin~te against the States and their
2 S.C.R.
SUPREME COURT REPORTS
179
sub.iects. It was therefore not an absolute g11arantee
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
State.s and_ their subjects. The right of the Government of Bombay which was th11s reserved covered the
whole of the guarantee 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 Hom bay to issue any legislation with regard to the
enjoyment of the ownership of jagir hmds 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 iP- regard
to the same provided however that such legislation
did not· discriminate against the States :rnd 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 ja~ir 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 impt>gned Act on the ground that it discriminated
again~t the States and their subjects.
The fetter or limitation upon the legislative power
of the State Legislature which had plenary powers of
Jegi,lation within the ambit of the legislative heads
specifie<l in the Lists TI & III of the Seventh 'Schedule
to the Cor<:titution ~onld only be imposed by the Constitution itself ~nd not by any obligatio11 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 oower to legislate on the topics
enumerated in Lists II & III of the Seventh Schedule
to the Constitution and this power was by virture of
article 245(1) subject to the provisions of the Constitution. The Constitution itself laid down the fetters
Mahara Unlf'g
Singh and other.f
V.
The State of
Bomba)' a11d others
B/iagwmi J.
180
SUPREME COURT REPORTS
[1955]
1955
or limitations on this power, e.g., in article 303
or
Maharaj Umq article 286(2). But unless and until the Court came
Singh and others
h
. v.
to t e conclusion that the Constitution it~elf had exBoTlb" Statde 01,
pressly prohibited legislation on the sub1"ect either
m ay an 01'1trs b l
I
. .
.
-.
a so ute y or cond1t1onally the power of the State
Bhagwatl J.
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 IT
& III 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 in so far as the States and their
su biects were discriminated against, hut they would
not be able to have their grievance redressed by this
Court for the simole 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 ot 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
w0uld 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
en-act legislation on any of the topics enumerated in
Lists II & III 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 /\ct XVII of 1939 in Th11kw
2 S.C.R.
SUPREME COURT REPORTS
181
JrrgannMh Raksh Singh v. The United Provinces(') at
page 87:-
1955
Maharaj Umeg
Singh alJd others
"We desire, however, to point out that what they
The s~~re of
are now claiming is that no Legislature in India has Bombay and others
any right to alter the arrangements embodied in their
Bhag.;;tiJ.
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 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 Jag(lnnath Baksh Singh v. The United Provinces(')" at page
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 qoncerned with the
question whether the impugned Act was validly enacted.
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.
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 im-
·pugned Act were discriminatory against the States
(1) 1943 F.C.R. 72
~4-B SCI/ND. 82
(2) 1946 F.C.R. 11 t.
182
SUPREME COURT REPORTS
( 1955]
1955
anp their subjects within the meaning of clause 5
Maharaj UAreg
of the letters of guarantee. We have not thought it
Singh and orlier.v necessary to refer to the same in view of .the concluThc s~~'' ef
sion which we have reached above that the impugned
Bombay and others Act was intra vi res the powers of the State Legislature
Bhagwatil.
and the State Legislature was
C]Uite competent to
enact the same.
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 .