# A. V. Viswanatha Sastri, T v. R. Tatachari and

- **Citation:** [1960] 3 S.C.R. 311
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Civil Appeals Nos. 392 of 1956
- **Bench:** B. P. Sinha, Jaf'Er Imam, A. K. Sarkar, K. C. Das Gupta, J.C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-v-viswanatha-sastri-t-v-r-tatachari-and-1596
- **Pages:** 9

## Headnote

Jagir, Abolition of-Regulations pr_omulgated by Military
Governor and Prime Minister-Constitutional validity-Delegation
of authority by Nizam-Nature and extent-Hyderabad (Abolition of
Jagirs) Regulation, IJS8 Fasli, s. 6(4)-Hyderabad Jagir, (Commutation) Regulation (XXV of IJ59 Fasli) s. 4(I)(c), 4(2)-Constitution
of India, Art. 32(8).
After the Police action in the State of Hyderabad in August,
1948, the Nizam, by a Farman dated September 19, 1948,
invested the Military Governor "with all authority for the
administration of the State " and by a later Farman declared
that " the said authority includes and has always included authority to make Regulations." By virtue of the said powers, the
Military Governor promulgated the Hyderabad (Abolition of
Jagirs) Regulations of 1358 Fasli. Thereafter on the termination·
of the appointment of the Military Governor, the Nizam by
another Farman appointed Mr. Vellodi as his Chief Minister and
directed that "all the powers of administration, vested in the
Military Governor before the said date are exercisable by the
Chief Minister." Thus empowered, the Chief Minister promulgated the Hyderabad Jagirs (Commutation) Regulation XXV
of 1358 Fasli. Thereafter with the commencement of the Constitution of India, the territory of the State of Hyde.pbad became
part of the Union of India and the President certified the two
Regulations under Art. 31(6) of the Constitution. By the Constitution (First Amendment) Act of 1951, Arts. 3r(A) and 31(B) and
Sch. IX were inserted into the Constitution and the two Regulations were included in the said schedule. The appellant, whose
properties had been taken over by the Jagir Administrator under
the Abolition Regulation, and who had, in the meantime, filed a
writ petition in the High Court, by his amended petition after the
amendment of the Constitution, claimed that ss. 4(r)(c) and 4(2)
of the Commutation Regulation and s. 6(4) of the Abolition
Regulation were confiscatory in nature and amounted to colourable and fraudulent exercise of legislative power. The High Court
found against him and rejected his petition:
Held, that the decision of the High Court must be affirmed.
There can be no question that the Nizam, at the time when he
executed the Farmans and prior to it, was an absolute ruler
vested with all authority executive, legislative and judicial
and had unquestionable powers to modify or extinguish any
of the rights of his subjects and the language of the Farmans
leaves no manner of doubt tha.t he thereby delegated the entiretyI960
312
SUPREME COURT REPORTS
[1960]
z960
of his authority aud powers to the Military Governor and thereafter to the Prime Minister.
Sarwar/al
The doctrine of invalidity of legislation enacted in colourable
v.
exercise of legislative authority can apply only where the legisSlal• of Hyderabad lature is subject to constitutional restrictions. But where the
powers of the legislature suffers from no limitations, constitutional or otherwise, that doctrine can have no application.
No question of infringement of fundamental rights could
arise as (i) the impngned Regulations were pre-Constitution legislations and the appellant's rights had already been determined
befor.e the Constitution, (ii) Art. 32(B) of the Constitution exempts
the Regulations from such a challenge.
Keshavan Madhava Menon v. State of Bombay [1951] S.C.R.
228, referred to.

## Text

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3 S.C.R. SUPREME COURT REPORTS
SARW ARLAL AND OTHERS
THE STATE OJB' HYDERABAD
311
(B. P. SINHA, c. J., JAF'ER IMAM, A. K. SARKAR,
K. C. DAS GUPTA and J.C. SHAH, JJ.)
Jagir, Abolition of-Regulations pr_omulgated by Military
Governor and Prime Minister-Constitutional validity-Delegation
of authority by Nizam-Nature and extent-Hyderabad (Abolition of
Jagirs) Regulation, IJS8 Fasli, s. 6(4)-Hyderabad Jagir, (Commutation) Regulation (XXV of IJ59 Fasli) s. 4(I)(c), 4(2)-Constitution
of India, Art. 32(8).
After the Police action in the State of Hyderabad in August,
1948, the Nizam, by a Farman dated September 19, 1948,
invested the Military Governor "with all authority for the
administration of the State " and by a later Farman declared
that " the said authority includes and has always included authority to make Regulations." By virtue of the said powers, the
Military Governor promulgated the Hyderabad (Abolition of
Jagirs) Regulations of 1358 Fasli. Thereafter on the termination·
of the appointment of the Military Governor, the Nizam by
another Farman appointed Mr. Vellodi as his Chief Minister and
directed that "all the powers of administration, vested in the
Military Governor before the said date are exercisable by the
Chief Minister." Thus empowered, the Chief Minister promulgated the Hyderabad Jagirs (Commutation) Regulation XXV
of 1358 Fasli. Thereafter with the commencement of the Constitution of India, the territory of the State of Hyde.pbad became
part of the Union of India and the President certified the two
Regulations under Art. 31(6) of the Constitution. By the Constitution (First Amendment) Act of 1951, Arts. 3r(A) and 31(B) and
Sch. IX were inserted into the Constitution and the two Regulations were included in the said schedule. The appellant, whose
properties had been taken over by the Jagir Administrator under
the Abolition Regulation, and who had, in the meantime, filed a
writ petition in the High Court, by his amended petition after the
amendment of the Constitution, claimed that ss. 4(r)(c) and 4(2)
of the Commutation Regulation and s. 6(4) of the Abolition
Regulation were confiscatory in nature and amounted to colourable and fraudulent exercise of legislative power. The High Court
found against him and rejected his petition:
Held, that the decision of the High Court must be affirmed.
There can be no question that the Nizam, at the time when he
executed the Farmans and prior to it, was an absolute ruler
vested with all authority executive, legislative and judicial
and had unquestionable powers to modify or extinguish any
of the rights of his subjects and the language of the Farmans
leaves no manner of doubt tha.t he thereby delegated the entiretyI960
312
SUPREME COURT REPORTS
[1960]
z960
of his authority aud powers to the Military Governor and thereafter to the Prime Minister.
Sarwar/al
The doctrine of invalidity of legislation enacted in colourable
v.
exercise of legislative authority can apply only where the legisSlal• of Hyderabad lature is subject to constitutional restrictions. But where the
powers of the legislature suffers from no limitations, constitutional or otherwise, that doctrine can have no application.
No question of infringement of fundamental rights could
arise as (i) the impngned Regulations were pre-Constitution legislations and the appellant's rights had already been determined
befor.e the Constitution, (ii) Art. 32(B) of the Constitution exempts
the Regulations from such a challenge.
Keshavan Madhava Menon v. State of Bombay [1951] S.C.R.
228, referred to.
CIVIL APPELLATE JURISDICTION:
Civil Appeals
Nos. 392 of 1956 & 686 of 1957.
Appeals from the judgment and order dated March
31, 1954, of the former Hyderabad High Court in
Civil Writ Nos. 43 and 44of1951 respectively.
S. P. Varma, S. Mohammed and S. R. Borgaouker,
for the appellants in both the appeals.
A. V. Viswanatha Sastri, T. V. R. Tatachari and
T. M. Sen, for the respondents in both the appeals.
Civil Appe.al No. 392 of 1956.
1960. March 16. The Judgment of the Court was
delivered by
Shah J.
SHAH, J.-This is an appeal filed with a certificate
granted under Art. 133(l)(c) of the Constitution by
. the High Court of Judicature of the State of
Hyderabad.
The appellant was a Jagirdar holding jagirs
Ramwarm Chandam Palli and Gulla Palli, Taluq
Sirsalla, in the District of Karimnagar in the State of
Hyderabad. After the Police Action in August, 1948,
Major General Chaudary was appointed the Military
Governor for the State of Hyderabad.
His Exalted
Highness the Nizam of Hyderabad invested the
l\riilitary Governor with authority to administer the
State by a Farman dated September 19, 1948. The
Farman was in the following terms :
" Whereas the General Officer Commanding in
Chief Southern Army has appointed Major General
J. N. Chaudary, O.B.E., to be the Military Governor
for the Hyderabad State and whereas all authority
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3 S.C.R. SUPREME COURT REPORTS
313
for the administration of the State now vests in
z96o
him, I hereby enjoin all the subjects of the State to
s
1 1
fi
.
arwar a
carry out such orders as he may deem
t to issue
v.
from time to time.
I appeal to all officers of the state of Hyderabad
State administration a.nd subjects of the State to
render faithful and unflinching obedience to the
Shah J.
Military Governor and conduct themselves in a
manner calculated to bring about the speedy restoration of law and order in the State".
On August 7, 1949, HiB Exalted Highness the Nizam
issued an explanatory Farman in the following terms :
"With reference to my Farman dated 19-9-1948,
in which I referred to' i;he fact that all authority for
the administration of the State now vests in the
Military Governor, I hereby declare that the said
authority includes and has always included authority
to make Regulations".
_
On August 10, 1949, the Military Governor promulgated The Hyderabad (.Abolition of Jagirs) Regulation
of 1358 Fasli, which will hereinafter be referred to as
the Abolition Regulation.
This Regulation was
brought into force on August 15, 1949, the date of its
publication in the Officfal Gazette.
Section 5 of the
Regulation directed that from a date to be notified
for the transfer of the administrations of the jagirs
in the State to the Government, the jagirdars shall
make over the management of the jagirs to the J agir
Administrator and in default of compliance therewith
the Officer appointed under the Regulation may take
forcible possession. By s. 6, it was provided that the
jagirs shall be included in the " Diwani " and unless
and until included in a district, shall be administered
by the Jagir Administrator, and that the powers,
rights and liabilities in relation to such jagirs shall
cease to be exercisable by the jagirdars and shall be
exercisable by the Jagir Administrators, and that no
jagirdar shall recover or receive any customary or
other dues from any tenant or resident of the jagir.
By s. 14, it was declared that the jagirdars were to
receive certain interim maintenance allowances until
such time as the terms of the commutation of the
jagirs were determined.
Pursuant to the authority
reserved by s. 6 of the Abolition Regulation, possession
314
SUPREME COURT REPORTS
[1960]
'96°
of the jagirs was taken over sometime in September
1949 by the Jagir Administrator acting on behalf of
Sarwarlal
v.
the State of Hyderabad.
state of Hyderabad
On December 1, 1949, another Farman was issued
-
by His Exalted Highness the Nizam which provided
Shah J.
as follows :
" Whereas the General Officer Commanding in
Chief Southern Army has as from the 1st December, 1949, terminated the appointment of Major
General Chaudary, O.B.E., to be the Military Governor for the Hyderabad State ;
And whereas it is necessary to make other arrangements for the administration of the State as from
the said date;
Now, therefore, I hereby appoint as from the said
date Mr. M. K. Vellodi, C.I.E., I.C.S., to be my Chief
Minister and ... I further direct that all the powers
of administration, vested in the Military Governor
before the said date are exercisable by the Chief
Minister ".
In exercise of the powers vested in him, the Chief
Minister promulgated the Hyderabad Jagirs (Commutation) Regulation No. XXV of 1359 Fasli-which will
hereinafter be referred to as the Commutation Regulation. This Regulation was brought into operation on
January 25, 1950.
By s. 3 of the Regulation, the
method of computing the commutation sum for every
jagir was prescribed.
After the inauguration of the Constitution of InJia
on January 26, 1950, on which date the territory of
the State of Hyderabad became part of the Union of
India, the President on April 25, 1950, certified the
two Regulations under Art. 31(6) of the Constitution
by a notification published in the gazette of the Union
of India. The Constitution was amended on June 18,
1951 by the Constitution (First Amendment) Act of
1951 whereby, inter alia, Arts. 3l(A) and 3l{B) and
Sch. IX were incorporated in the Constitution. The
Abolition Regulation and the Commutation Regulation were included in Schedule IX and by virtue of
Art. ·3l(B), neither the Regulations nor any of the
provisions thereof were to be deemed to be void or
ever to have become void on the ground that the
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3 s.c.R. SUPREME COURT REPORTS
315
Regulations were inconsistent with or took away or
abridged any of the rights conferred by any of the
provisions of Part III of the Constitution. In the
Sarwar/al
meantime, the appellant had, on January 29, 1951, State of ~~yderabad
filed a petition in the High Court of Hyderabad for
_
a writ in the nature of mandamus directing the State
Shah J.
of Hyderabad and the ,J agir Administrator to hand
over possession of the a.ppellant's properties and for
an order declaring the Abolition Regulation and the
Commutation Regulation ultra vires and unconstitutional and for certain interim orders. After the
amendment of the Constitution, the petition was
amended on August 14, 1952. By this petition, the
appellant claimed that ss. 4(l)(c) and 4(2) of the Commutation R(lgulation a,nd s. 6(4) of the Abolition
Regulation were invalid because by these provisions,
there was " naked confiscation of the property " of the
appellant and that they amounted to" colourable and
fraudulent exercise of legislative power". The High
Court of Hyderabad rejected the petition filed by the
appellant, but certified the case under Art. 133(l)(c)
as a fit one for appeal to this court.
In this appeal, two principal contentions fall to be
determined, viz., (1) whether legislative authority
was conferred upon. the Military Governor by the
Farman dated September 19, 1948 and (2)
If, by the
Farman, :legislative authority was delegated to the
Military Governor, whether it was circumscribed by
any limitations or reservations.
Was the Military Governor, by the Farman dated
September 19, 1948, inveated with all the sovereign
authority legislative, executive and judicial'of H.E.H.
the Nizam or was he merely invested with the executive authority ? By the plain words used in the Farman, " all authority for the administration of the
State was conferred upon the Military Governor" and
there is nothing in the text of the Far.man which
warrants the view that only executive authority was
intended to be delegated thereby. Within the expression, "all administrative authority" is encompassed
the entirety of the authority of the sovereign, and by
the delegation from His Exalted Highness the Niza:m,
the Military Governor was invested with that authorit;y
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316
SUPREME COURT REPORTS
[1960]
'96•
in all its amplitude. The injunction to the subjects of
Sarw.,lal
tGhe State to cardry oufit all s?ch ordedrs has the
1
Militahry
overnor may eem t to rnsue an t e appea to t e
State of ;;yderabad officers of the State and the subjects to render faithful
and unflinching obedience and to conduct themselves
Shah J.
in a manner calculated to bring about the speedy
restoration oflaw and order, do not detract from the
amplitude of the powers delegated to the Military
Governor. The expression, "orders " would include
every order made in exercise of authority for the
administration of the State; and the object intended
to be achieved, viz., the speedy restoration of law and
order in the State by His Exalted Highness the Nizam
as expressed in the appeal was not restrictive of that
authority. That His Exalted Highness the Nizam in
and before the month of September, 1948, was an
absolute ruler invested with all authority, executive,
legislative and judicial is indisputable. He had supreme
powers vested in him to modify, restrict take away or
extinguish the rights of any of his subjects and the
validity of his actions or orders was not liable to be
questioned before any tribunal or authority.
The Farman promulgated on September 19, 1948,
by His Exalted Highness the Nizam delegated his
sovereign authority to the Military Governor and to
remove all doubts as to the effect of that delegation,
an explanatory Farman dated August 7, 1949, was
issued. It was declared in express terms by that Farman that the authority of the Military Governor
"included and has always included the authority to
make Regulations ''. In the clearest terms, the author
of the Farman proclaimed the content of the authority
'delegated by him to the Military Governor.
The plea rather faintly urged by Mr. Varma that
the Farman merely recited that the Military Governor
had been invested with authority for administration
and did not by its own force purport to invest the
Military Governor with authority to administer the
State is plainly inconsistent with the argument which
was advanced in the High Court and the statement of
the case filed in this court and was therefore rightly
abandoned by him.
·,. .. ' ..... ' .. '• .. .
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3 S.C.R. SUPREME COURT REPORTS
317
Though by the delegation of authority, the Military
x96o
Governor was invested with all authority of His
s
1 1
Exalted Highness the Nizam in the matter of adminisar~~· a
tration of the State in all its departments, the/soverei- State of Hyderabad
gnty of His Exalted Highness the Nizam was, by this
act of delegation, undoubtedly not extinguished. It
was open to him, notwithstanding the delegation, to
issue orders or Regulatiom; contrary to those which
were issued by the Milit2~ry Governor, and also to
withdraw the authority of the Military Governor.
There is, however, no evidence on the record to show
that after September 19, 19~!8, and before the Abolition
Regulation was promulgated; the authority of the Military Governor was withdrawn or that His Exalted
Highness the Nizam had_issued any order or Regulation
inconsistent with the Abolition Regulation. The
authority of the Military Governor was withdrawn in
December, 1949, and the Chief Minister was invested
with the same authority of administration including
expressly the power of legislation, and it was in exer-
• cise of that authority that the Chief Minister issued
, the Commutation Regulation.
The authority of His Exa.lted Highness the Nizam
as the sovereign ruler to resume the jagirs and to
extinguish the interests of the jagirdars being by delegation vested in the Military Governor, tlie legality of
the action of the latter was not open to challenge ·on
any test of legislative competence. Assuming that no
opportunity had arisen for exercise of the sovereign
authority in the matter of resumption of jagirs or
extinction of the jagirdars' interests before the promulgation of the Abolition Regulation, an inference cannot therefrom arise that His Exalted Highness the
Nizam had irrevocably placed a restriction on his
sovereignty, or that the delegation to the Military
Governor of the sovereign authority was subject to an·
implied restriction that the interests of the jagirdars
in the jagirs could not in exercise of the authority be
+
extinguished.
The authority of the Military Governor, being unrestricted, so long as it enured, his action in issuing the
Abolition Regulation could not be challenged on the
plea that it was a colourable exercise of legislative
Shah] •
318
SUPREME COURT REPORTS
[1960J
r960
authority. The doctrine of invalidity of legislative
provisions enacted in colourable exercise of authority
Sarwar/al
J"
1 · 1 t
h
b · t t
v
app ies to eg1s a ures w ose powers are su J€C
o
stat• of H;derabad constitutional restrictions. When such a legislative
body seeks, under t,he guise or pretence of complying
.Shah f.
with the restrictions, in enacLing a statute, to evitde or
elude them, it is but a fraud on the Constitution, and
the statute is liable to be declared invalirl on the ground
that the enactment is in colourable exercise of authority, the statute being in truth beyond the competence
of the body. But a statute enacted by a legislative
authority whose powers are not fettered by any constitutional or other limitations, cannot be declared
invalid as enacted in colourable exercise of its powers.
The authority of the Chief Minister under the Farman dated December 1, 1949, in its amplitude, was as
extensive as that of His Exalted Highness the Nizam
. and the Commutation Regulation was not liable to be
challenged on the ground of want of legislative competence or colourable exercise of legislative authority,
the power exercised by him being the legislative
power as the delegate of the Sovereign.
The plea that the fundamental rights of the appellant under the Constitution were infringed by the two
Regulations does not require any detailed examination. By' virtue of the Abolition Regulation, the
rights of the appellant as a jagirdar in his jagir were
extinguished and by the Commutation Regulation,
the quantum of compensation payable to him was
determined by a pre-Constitution legislation. The
Regulations were competently promulgated in exercise
of legislative authority in that behalf; and the
Constitution does not operate
retrospectively to
revive the rights which had been, before it was enacted, extinguished. The Constitution has, except as
otherwise expressly provided, no retrospective operation: Keshavan Mailha.va Menon v. State of Bombay(');
and rights which were by legislation extinguished,
before it was enacted, are not revived thereby. At
the commencement of the Constitution, the appellant
had, therefore, no rights in the jagirs and he, obviously, could not claim a writ of mandamus directing
(r\ [195t) S.C.R. 228.
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3 S.C.R. SUPRE.l.VIE COURT REPORTS
319
delivery of possession of the jagir, or a writ directing
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commutation otherwise than under the provisions of
Sarwarlal ,
the Commutation Regulation. It may also be observed
v.
that the Parliament has, by the Constitution (1st State of Hyderabad
Amendment) Act, included the Abolition and the _ -· -· ·
-
Commutation Regulations in the ninth schedule, and
Shah].
by virtue of Art. 3l(B), the two Regulations are
exempt from challenge on the ground that they are
inconsistent with or take away or abridge any of the
fundamental rights conferred by Part III of the
Constitution.
The appeal therefore fails and is dismissed with
costs.
Civil Appeal No. 686 of 1957.
This appeal raises the same question which has been
decided in the companion Appeal No. 392of1956 and
for reasons set out therein, this appeal must fail and
is dismissed with costs.
Appeals dismissed.
JAIKRISHNADAS MANOHARDAS
DESAI AND ANOTHER
v.
THE STATE OF BOMBAY
(JAFER IMAM, K. N. WANCHOO and J. 0. SHAH, JJ.)
Criminal Breach of Trust-Ingredients of-(:ommon inte~tion
Meaning of-Indian Penal Code (XLV ojI86o), ss. 409, 34.
The first appellant was the Managing Director and the second
appellant a Director and technical expert of a cloth dyeing
concern known as Parikh Dyeing and Printing Mills Ltd. The
company entered into a contract with the Textile Commissioner
undertaking to dye a large quantity of cloth which was supplied
to the company for'i:hat purpose. In pursuance of the contract
certain quantity of cloth was dyed and delivered to the Textile
Commissioner by the company but it failed to dye and deliver the
balance of cloth which remained in its possession and was not
returned to the Textile Commissioner in spite of repeated
demands. Ultimately the two appellants were prosecuted for
criminal breach of trust under s. 409 read with s. 34 of the Indian
Penal Code and were convicted for the same in a trial by jury.
z960
March z6.