# Bidi, Bidi ltavtt and Tobacco A1 erchants' .Association v. The State of Bomb•y

- **Citation:** [1962] Supp. 1 S.C.R. 405
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bidi-bidi-ltavtt-and-tobacco-a1-erchants-association-v-the-state-of-bomb-y-2431
- **Pages:** 46

## Headnote

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(1) $.C.R.
SUPREME COURT REPORTS
405
in such a case may be to make a comprehensive reference of the di8pute to the competent industrial
tribunal and invite the tribunal to make a proper
award in that behalf. We are, therefore, inclined to
take the view that cls.3 to 7 which form an integral
scheme are outside the purview of the powers conferred on the respondent by s. 5 of the Act and must
therefore be declared to be ultra vires. It is
common-ground that these clauses are severable
from els. l and 2 and that their invalidity does not
affect the validity of the said two clauRes.
In the result Civil Appeals Nos. 415 and 417
are allowed and Civil Appeals Nos. 416 and 418 are
dismissed. Respondent to pay the costs of the
petitioners in Civil Appeals Nos. 415 and 417. One
set of hearing costs.
O. A. Nos. 415, 417 allowed.
O. A. Nos. 416, 418 dismissed .
PROMOD CHANDRA DEB AND OTHERS
v.
THE STATE OF ORISSA AND OTHERS
(B. P. SINHA, c. J., s. IC DAS, A. K.
SARKAR
N. RAJAGOPALA AYYANGAR and J. l{. J\IuDHOLK~R,
JJ.)
Khor Posh Grant-Maintenance allowance granted by ExRuler of State-Merger of State with the Dominion of lndiaAbrogation of grant by executive act.ion-if an act of StateOonstitutiona/ Validity-Constitution of India, Arts. 14, 19(1)
(/), 31-Extra Provincial J,,risdiction Act, 1947(47 of 1947)
ss. 3, 4, 5-Administration of Ori.,a States Order, 1948, Para'.
4(b)-8tates' M.rger (Governors' Pmvinces) Order, 1949, ss. 3.
4,-Government of India Act, 1935 (26 Geo. 5, ch. 2) s. 299 ( l).
The petitioners, who were holders of Khor Posh grants
from the Rulers of Talcher, Bamra and Kalahandi before
these states merged with the Dominion of India, chall"n.~ed
the constitutional validity of certain orders passed by the State
1961
Bidi, Bidi ltavtt and
Tobacco A1 erchants'
.Association
v.
The State of Bomb•y
G•jendr apndkar J.
1961
October ltl
l'r•moi Chatlr• Deb
v.
Tiu Slat1 of Oris so
406 SUPREME COURT REroRTS (1962] SUPP.
of Orissa and the Union of India annulling those grants which
, the Petitioners claimed were
ba~ed on the law and custom
prevailing in these states relating to maintenance of the junior
members of the Ruling family.
The grant in controversy in
Petition No. 79 of 1957, made by the Ruler ofTalcher under
Order 31 of the Rules and Regulations of the State ofTalcher,
1937, originally of land but converted in 1944 into money
grant, was regularly paid till April 1949. The grant in
Petition No. 167 of 1958, made by the Ruler of Bainra prior
to January I, 1948, was annulled on June 8, 1949, by the
Government of Orissa as the delegate of the Governmcn t of
India under. s. 4 of the Extra Provincial Jurisdiction Act 1947.
The petitioner in Petition 168 of 1958 was the same as in the
previous petition.
He was granted an increased allowance by
the Ruler of Bamra on December 8, 1947. The grant was
recognised on June 11, 1949, but paid at a reduced rate from
April I, 1948, to July 1, 1957, and was annulled by a state·
ment made on June 29, 1957, hy tho Chief .Minister of Orissa
in Legislature. The allowance in favour of the first petitionr.r
in Petition No. 4 of I 9'1!J; tho widow of the late Maharaj a of
Kalahandi, fixed by the Political Department of tlte Government of India in l~l39, and the a11owance granted to the second
petitioner by the Ruler, were paid till they were
annulled by
the aforesaid statement of the Chief Minister of 01 issa.
By
the Merger Agreements signed by the Rulers on or after
December 14, 1947, Sovereignty over these States vested in
the Dominion of India before January I, 1948, and in exercise
of its powers under s. 3(2) of the Extra Provincial Jurisdiction
Act, 1947, which came into effect on December 24, 1949, the
Central Government delegated its powers to the Government
of Orissa to administtr the States. On January I, 1948, the
Government of Orissa in exercise of its powers under s. 4 of
that Act made an order called the Administration of Orissa
States Order, 1948, para. 4(b) of which provided, i

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SUPREME COURT REPORTS
405
in such a case may be to make a comprehensive reference of the di8pute to the competent industrial
tribunal and invite the tribunal to make a proper
award in that behalf. We are, therefore, inclined to
take the view that cls.3 to 7 which form an integral
scheme are outside the purview of the powers conferred on the respondent by s. 5 of the Act and must
therefore be declared to be ultra vires. It is
common-ground that these clauses are severable
from els. l and 2 and that their invalidity does not
affect the validity of the said two clauRes.
In the result Civil Appeals Nos. 415 and 417
are allowed and Civil Appeals Nos. 416 and 418 are
dismissed. Respondent to pay the costs of the
petitioners in Civil Appeals Nos. 415 and 417. One
set of hearing costs.
O. A. Nos. 415, 417 allowed.
O. A. Nos. 416, 418 dismissed .
PROMOD CHANDRA DEB AND OTHERS
v.
THE STATE OF ORISSA AND OTHERS
(B. P. SINHA, c. J., s. IC DAS, A. K.
SARKAR
N. RAJAGOPALA AYYANGAR and J. l{. J\IuDHOLK~R,
JJ.)
Khor Posh Grant-Maintenance allowance granted by ExRuler of State-Merger of State with the Dominion of lndiaAbrogation of grant by executive act.ion-if an act of StateOonstitutiona/ Validity-Constitution of India, Arts. 14, 19(1)
(/), 31-Extra Provincial J,,risdiction Act, 1947(47 of 1947)
ss. 3, 4, 5-Administration of Ori.,a States Order, 1948, Para'.
4(b)-8tates' M.rger (Governors' Pmvinces) Order, 1949, ss. 3.
4,-Government of India Act, 1935 (26 Geo. 5, ch. 2) s. 299 ( l).
The petitioners, who were holders of Khor Posh grants
from the Rulers of Talcher, Bamra and Kalahandi before
these states merged with the Dominion of India, chall"n.~ed
the constitutional validity of certain orders passed by the State
1961
Bidi, Bidi ltavtt and
Tobacco A1 erchants'
.Association
v.
The State of Bomb•y
G•jendr apndkar J.
1961
October ltl
l'r•moi Chatlr• Deb
v.
Tiu Slat1 of Oris so
406 SUPREME COURT REroRTS (1962] SUPP.
of Orissa and the Union of India annulling those grants which
, the Petitioners claimed were
ba~ed on the law and custom
prevailing in these states relating to maintenance of the junior
members of the Ruling family.
The grant in controversy in
Petition No. 79 of 1957, made by the Ruler ofTalcher under
Order 31 of the Rules and Regulations of the State ofTalcher,
1937, originally of land but converted in 1944 into money
grant, was regularly paid till April 1949. The grant in
Petition No. 167 of 1958, made by the Ruler of Bainra prior
to January I, 1948, was annulled on June 8, 1949, by the
Government of Orissa as the delegate of the Governmcn t of
India under. s. 4 of the Extra Provincial Jurisdiction Act 1947.
The petitioner in Petition 168 of 1958 was the same as in the
previous petition.
He was granted an increased allowance by
the Ruler of Bamra on December 8, 1947. The grant was
recognised on June 11, 1949, but paid at a reduced rate from
April I, 1948, to July 1, 1957, and was annulled by a state·
ment made on June 29, 1957, hy tho Chief .Minister of Orissa
in Legislature. The allowance in favour of the first petitionr.r
in Petition No. 4 of I 9'1!J; tho widow of the late Maharaj a of
Kalahandi, fixed by the Political Department of tlte Government of India in l~l39, and the a11owance granted to the second
petitioner by the Ruler, were paid till they were
annulled by
the aforesaid statement of the Chief Minister of 01 issa.
By
the Merger Agreements signed by the Rulers on or after
December 14, 1947, Sovereignty over these States vested in
the Dominion of India before January I, 1948, and in exercise
of its powers under s. 3(2) of the Extra Provincial Jurisdiction
Act, 1947, which came into effect on December 24, 1949, the
Central Government delegated its powers to the Government
of Orissa to administtr the States. On January I, 1948, the
Government of Orissa in exercise of its powers under s. 4 of
that Act made an order called the Administration of Orissa
States Order, 1948, para. 4(b) of which provided, inter alia,
that all prior Jaws, which included Rules, Regulations, byclaws and orders, whether based on custom or u•age, would
continue in force
until altered or amended by an order under
the Extra Provincial Jurisdiccion Act, 1947. Bys. 3 of the
States' Merger (Governors' Provinces) Order, 1949, which
caine into cft'ect on August I, 1949, these States became parts
of the Province of Orissa. Section 4 of the Order.provided
that all laws Jn force in a merged State before that day includ·
ing orders made under ss. 3 or 4 of the Extra Provincial Jurisdiction Act, 1947, would continue in force until repcalr.d
modified or amended by a competent legislature or other com·
pctent authority. The case of the petitioners was that by these
provisions the grants were recognised by the new sovereign and
their abrOjfoltion by executive action aniounted to Infringement
•
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(I) S.C.R.
SUPREME COURT REPORTS
407
of fundamental rights guaranteed by, Arts. 14, 19(l)(f) '!nd 31'
of tbe Constitution
A
preliminary objection \vas taken on
behalf of the respondents in the fir•t two Petitions that the
grants in questipn having been annulled prior to the Constitu ..
tion, no writs could issue thereunder and it was urged, that
in any view of the. matter, the orders
annullirig the grants
11-mounted
to acts of state and their legality could not be
canvassed in a Municipal Court.
'"
Held, that the prelin,>ina1y objection 1.ad no substance
and must faiJ.
Since the grants at the time they werC annulled had ctased to be grants of land and been converted to
money allo~ances, payabJe, periodically at regular interyals,
every perioSic deprivation gave the petitioners the right to
approach the court. and, it was not 11ntil 1957 that the protracted correspondence betl\·een the
parties for the rcvisiOn of
'- ,the impugned Orders came to an end.
'
·The expression. 'act" of state! means the arqui!dtion .. Pf
sovrreigllty
hy a state ,o.Jer. forfign ,territor·y by cofiquest,
treaty, c~ssion or otl,erv . ..ise.
That act may t'ake place on a
parlicular date or by a
gradual process.but sovereign power,,
incluaing the _right to legislate for and adniinistef the ac~uire,d
territory, may be acquired ~before che merger.
No Municipal
Couft has, however, the-. power .to_ judge "the -propriety or
legality of such an act 'relating either t6"public or private righta
nor can it enforce obe.dience to ordinary principles of Inter·
national la·.v-·relating to rights of private property which a new
!"ov&"eign' is presumed to res\Ject:
Iudl~idual citizr:ns canμot
enforce such rights even .thdugh they may be pNtected by .the
treaty since'they are no parties to the 5tipulations.
It is oriJ.y
when the new sovereign recognhes the Municipal Courts that
they can have the po,ver and jurisdiction to investigate and
ascertain only such
rights as it chooses to i:_ecognise either by
legislatipn or agreement or other\yjse.
RCcognition .may, be
express_ or impped from it.; ,dcailng with those 'rights.
Such
recognition, however, is al mattel' '"ithin the jurisdiction of
the Municipal
Cour(s, but the onus or proving it IUJ.!St be on
the claimant.
·
Secretary of State of India v. ·Mamachee Boye Sahaba,
(1859) M.T.A. 476, Cook v. Sir James Gordon Sprigg; [1899)
A.O. 572, Secretary of Stale for India v. Bai //ajbai, tJ915)
L.R. 42 I.A. 229, Vajesingjj Joravtsrsingji v. Secretaty of State
Jo• Tndia in Council, (1924)
L.R. '51 I.A. 357, Datlatraya
Krishna Rao Kane v. Seci·,ta1y of .~tqte for India, (1930) L.R.
57 I.A. 318, Secretary of State v. s.,rilar.Ru.<tarn. Khan, (191'!)
L.R. 68 I.A. 109, State of Saurashtra ,v.;Mfnqf Haji lsmail
Haji, [1960] 1 S.C.R. 537 andJagannathAgai~a v, Stat. of
Oriasa, [1962] 1 S.C.R. 205, referred to.
( /'
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1961
Promod Cltandta D1b
••
Tl.1 Stall of Orissa
' .
19~1
~-···---
Promod Chandra Deb
• '- z" • ·-¥• _.,,;
'
Thi State oJOri.1s~
•
408
SUPRE~m COURT REPORTS [1962] SUPP.
Judged in the light of these principles, there could be
no doubt that Order 31 . of the Rules and Regulations of the
State of Talcher, 1937, had the effect of law, having been
continued in force by sub-para.
(b) of Para. 4 of the administration of · Orissa ·States Order, 19~8. in the absence of any
legislation to the contrary under the Extra Provincial Jurisdiction Act, 1947.-
The said Rules and Regulations were existing
··Jaw within the meaning of Art. 327 of the constitution. It
was wholly immaterial whether the grant by the former Ruler
waS a legislative or an executive act.
.
Madharao
Phalke v. The State of Madhya Bharat, [1961]
I S.C.R. 957, Thakur Amar Singhji v. State of Rajasthan,
(1955] 2 S.C.R. 303 and M/s. Dalmia Dadri Cement Go. v. The
. Commissioner of Income-tax, (1959] S.C.R. 729, relied. on.
The wide language of sub-par. (b) of para. (4) of
the Order of 1948, read with the Explanation, left no manner
. of doubt that the new sovereign by that Order had recognised
the Khorposh grant made to the petitioner.
, It was not correct to say that the impugned order annulling the grant coald be sustained under"· 3(1) and (5) of the
Extra Provincial Jurisdiction Act, 1947. Section 3(1),. properly
con!trued, could
not overrides. 4 of the Act
and an order
made thereunder by a competent authority could be superseded only by another under the section itself.
Section 5 of
the Act could not be so construed as to authorise the abrogatio11; of a ]a\v
continued in
force
by s. 4 or an order passed
. thereunder. The entire Act must be read harmoniously so as
to give effect to each one of its provisions.
It must, therefore,
be held that the annulment by executive. action was not
· justified.
-
·
It was -not, therefore, necessary for disposing Of this
matter to consider whether· the petitioner wa• entitled to the
protection of s. 299(1) of the Government of India Act, 1935.
Johnstone_v. Pedlar, (19_21) L:R.
0
2 A.C. 262, considered.
Since the order impugned by Petition No. -167 of 1953
was made in terms qf s. 4 of the Extra Provincial Jurisdiction
Act, 1947, it had
the effect of law, and was not open to
investigation by this Court.
· The right of the petitioner in Petition No. 16B. of 1958,
having been recognised on June 11, 1949, in modification of the
grant by 'the Ex-Ruler and implemented, it could not be
abrogated by a mere executive fiat.
-
.The orders of annulment in Petition 4of1939 must also
. for the same reasons be held to be unjustified.
(l) S.O.R.
SUPREME COURT REPORTS 409
Per Sarkar and Mudholkar, JJ .-Section 299( I) of the
Government of India Act 1935 could be of no help to the
grantee from an Ex-Ruler u;,less his right had beed recognised
by the new sovereign so a. to enable him to establish the same
in its municipal courts. That section could only protect such
rights as the new citizen had at the moment of his becoming a
citizen of the Dominion of India. It did neither enlarge his
rii:hts nor cure any infirmity in them.
State of Gujarat v. J amadar M akomed Abdulla [ 1962]
3 S.C.R. 970, referred to.
ORIGINAL JuruSDIOTION: Petitions Nos. 79 of
1~57, 167 and 168 of 1958 and 4 of 1959.
Petition under Art. 32 of the Constitution of
India for enforcement of Fundamental Rights.
A. V. Viswanatha Sastri and K.R. Ohoudhri, for
the petitioner (In Petn. No. 79 of 1957).
Purushottam Trilcamdas and R. Patnaik, for
the Petitioners (In Petns. Nos. 167 of 58 and 4 of
59).
N. O. Oltatterjee and R. Patnaik, for the petitioner (In Petn. No. 168 of 1958).
0. K. Daphtary, Solicitor-General of India,
B. R. L. Iyengar and T. M. Sen, for the respondents.
1961. October 16. The Judgment of Sinha,
C. J., Das and Ayyangar, JJ., was delivered by Sinha,
C.J., and the Judgment of Sarkar and Mudholkar, JJ.,
was delivered by Mudholkar, J.
SINHA, C. J.-The Petitioners in these Writ
Petitions, under Art. 32 of the Constitution, complain of interference with their rights under the several Khor Posh grants, and pray for writs of certiorari
or mandamus and further orders or directions to
the respondents for the enforcement of their alleged
rights. In Writ Petition No. 79 of 1957, the first
respondent is the State of Orissa, and the Union
of India is the second respondent. In all the other
Writ Petitions, the State of Oris11a is the sole r.ispondent. As rr.ost of the questions of law relating
to the interpretation of the Constitution, or other
1961
Promod Chaodra DdJ
Y,
Th S1a11 of llrissa
Sinlra C. J.
JHl
Pr"""'4 C!zan4,• D16
••
'IL Stoll of Orim
8inM c. J.
410 SUPREME COURT REPORTS [1962] SUPP.
laws hereinafter to bo referred to, are common, the
C&Scs have been heard together.
But in order to
appreciate the points arising in these cases, it is
necessary to state the facts of each case separately.
I. Writ Petition No. 79 of 1957.
In Writ Petition 79 of rn57, the petitioner is
the younger brother of the present Itaja of Talcher,
which was an indopendent sovereign State before
its merger. It was later incorporated in the State
of Orissa.
The Talcher State was a sovereign State
of the Rajabahadur ofTalcher, under the paramountcy
of the British Govcmment, before
India
attained Independence. As sueh a sovereign, tha
Rajah had a.bsolut11 powers of disposal of the properties comprised in the State. The RueccsRion to
the Rulership of the State is governed by the Mitakshara law, accorrling to the rule of lineal primogeniture. Tho petitioner is a citizen of India am] is the
only youngn brother of the present Raja of Tak-her.
The petitioner's father, the previous Ruler of Talcher, died in 1945 and was succeeded by the petitioner's cider brother, tho present Raja of Talcher,
According to immemorial and long· established
custom of the State, as alRo according to the Hindu
Law of lineal primogeniture, the junior members
of the family of the l{ulers, for the time being, were
entitled to and were provided with suitable maintenance, either land or in money, to enable them
to maintain themselves in accordance with their
status as members of the Ruler's family. The
grants of land, or its equivalent in money, or partly
in ,la.n.d and partly in money, used t'> be called
Khanja or Khor posh grants, and the grantees wero
known as Khanjadars or Khorposhdars. The nature
and conditions of such grants have been laid down in
Order 31 of the Rules, Regulations and Privileges of
Khanjadars and Khorposhd.ara. Those "rules, regulations of Ta.lcher etc. ( 1937)" state the law of the State.
In acoordance with the law aforesaid, the Khorposh
...
(1) s.c.R.
SUPREME COURT REPORTS
411
grants made by the Ruler, for the time being,
became the absolute private property of the grantee,
being a male or a female member of the family of
the grantor.
The petitioner was born in 1903, and in the
same year the petitioner's father, who was then
Ruler of the State of Talcher, made a grant in perpe·
tuity to the petitioner of 5 villages specified in the
Schedule to the petition. The said grant conveyed
to the petitioner full proprietary rights in the villages
aforesaid. By an order, dated Mach 31, 1912, the
Ruler aforesaid passed an order to the effect that
the income of the 5 villages granted to the petitioner, as aforesaid, be collected by the State OfficipJs and deposited in the St1tte Treasury, and the
petitioner should be paid in cash the equivalent
of the income from the villages aforesaid, amounting to Rs. 5926 odd. By a subsequent order, dated
September 8, 1929, the Ruler aforesaid directed the
Settlement Officer, who was in charge of making
the record• up to date, to keep the aforesaid grant
yielding a cash income of Rs. 5926 odd intact, to
be enjoyed by the petitioner "in perpetuity under
hereditary rights". The Ruler of the State, aft11r
making the necesaary enquiries, directed, by his
Order dated March 16, 1944, that the petitioner
should be paid Rs. 6200 a year, as & cash allowance
out of the State Treasury in lieu of the income
from the villages granted to the petitioner, as aforesaid. Since then the petitioner was being paid
regularly the allowance at the rate of Rs. 500 per
month, till April 1949.
Going a little backwards, it is necessary
to complete the narrative of events by stating that in August 1947, the present Raja of
Ta.lcher, the petitioner's elder brother, entered
into an agreement with the Dominion of India
, after its formation after the Independence .Act
of 1947, and e:11:ecuted an Instrument of Accession,
1961
Promod Chandra l>tb
••
TMStat1 ofOrissa
Sin/wJ C. J,
1~1
l'romrxl Clutnd<a Dtb
v.
Tlit Stak of Orissa
SinlM C. J.
412 SUPREME COURT REPORTS [1962] SUPP.
which was in tho form as it appears in Appendix VIII at page l6!l of the Whiti> Pap~r on Indian
States. Another agreement, in form appearing in
Appendix IX at pngo 173 of the 'Vhitl) paper, was
also entere<l into between the Ruler of Talcher and
the Dominion of India. On December 14, 1947,
o.n agreemC'nt, called the 'Merger Agreement', in
the same form as Appendix XI at page 178 of the
Whito Paper, was entered into between the Governor-General of India and the Raja of Talcher. The
terms and effect of these transactions will have to be
examined in detail l:iter.
On Jannary I, l!l48, the
State of Talchor mNged in the Dominion of India
in accordance with the Merger Agreement aforesaid.
Tho petitioner claims that the Khorposh grant made
to him, as aforesaid, was fully and unequivocally
recognized by tho State and that even without such
recognition his rights before the merger of the State of
Talch!'r in Orissa r<>maincd intact., and neither the
Central Government nor tho State Government could
question or ignore those rights. As the petiiioner did
not receive his Khorposh allowance due for the
month of April, l!l4!l ho entered into correspondence with the Government of Orissa.
Io answer
he received a letter, dated l\lay 26, I !l49, from the
Sub-Di\·isional i\Iagistrate of Talcher informing
him that the payment of allowanco in question
could not be made until further instruction• were
received from the Government. Aa a n•sult of
further correspondent between the pctitil)ner and
the Governmont of Orissa, the petitioner received
a letter, on June 22, l 9!!l, to the following effect:
"With reference to your letter No. Nil
dated 7th June, I !l4!l, on the subject mentioned above, I am directed to say that as
you have extensive landed property and are
well off in Jifo, Government of India have
not allowed any monthly cash allowance.
The decision of the Government of India i$
(i) S.C.R.
SUPREME COURT REPORTS
413
final in this matter and cannot be reconsidered."
It is this order of the Government which the
petitioner challenges as invalid and interfering with
his property rights. After entering into further
correspondence with the Government of India, the
petitioner receieved on September 7, 1956, a copy
of the letter dated March 26, l 955, to the following effect:
"The Government of India are advised
that the alleged grant of maintenance allowance to you by the Ruler of Talcher was
never recognized by the Govt. of India or
the State Govt. of Orissa. After. the merger
therefore no claim for payment of the said
allowance can be enforced against either the
State Govt. of Orissa or the Central Govt.
The Govt. of India are further advised that
even if, according to the law applicable to
the members of the ruling Family of Talcher
you had a right to be maintained, that was
rights against the Ruler of Talcher which is
not legally enforceable against either the
Govt. of Orissa or the Central Govt. who
have not inherited or undertaken Bny obligation in the behalf.
As regards your contention ba~ed on the
provisions of Articles 2 and 4 of the Merger
Agreement signed by the Ruler of Talcher
I am directed to say that the Govt. of Indi~
do not consider that these have the effect of
placing an obligation on the Government
to continue your allowance."
The correctness and validity of the statements
of fact and law contained in the letter aforesaid of
the Government of India is challenged by this
petition on the grounds that that Government's
order aforesaid amount to an infringement of
IHI
Promcd Chandra D&
v.
The State of Oria.sa
Sinha C. J,
INl
Pra<Md 0""1tJra Deb
••
Tilt Bt.u af Ori=
8i""4 c. J.
414 StJPREME lOURT REPORTS [1962] StJPP.
the petitioner's fundamental rights under
Arts.
19( I )(f) and 31 of the Constitution and are also
discriminatory, thus violating Art. 14 of the Constitution inasmuch as tho other Klwrposh grantees
have been allowed to continue enjoying their
similar rights. It was on these allegations that
the petitioner moved this Court and. obtained the
Rule,
II. Writ Petition No. 161of1958.
The petitioner in this caae is the younger
brother of the Rajll of what was previously known
as the State of Bamra, one of the native States !n
Orissn. The Ruler of Bamra possessed and exercised
absolute rights-legislative, executive and
judicial-in his territory, subject to tho paramountcy of the British Government.
The Ruler of
Bamra also, like tho other ruler similary situated,
acceded to the Dominion of India by an Instrument of Accession executed between him and the
Governor-General of India on or about the 15th
of August, 1947, in terms similar to the form
appearing in Appendix VII of the White Paper,
at page 165. There arc similar allegations, as in
the previous ca.se, about the law and custom governing the grant of /(horposh to the members of tho
Ruling Family. Iu accordance with tho law aforesaid
and in exercise of his sovereign powrre, the Ruler
made tho following 4 grants in favour of the petitioner.
"l. Land Revenue hereditary grant of
Re. 10,000 per annum out of the Revenue
income of the village Balanda and 24 others
in llamra State granted by the Ruler on
24-3-47.
2.
Land Revenue hereditary kharposh
Mafi grant of Rii. 2,400 per year out of the
income of village Nenei and 6 othf'rs granted
by the ruler on 15-9-45.
•
(1) S.C.R.
SUPREME COURT REPORTS
415
3. Forest grant of Panguli and Prabhasuni reserve
forests for
reclaiming 1500
acres granted by Ruler on 27th December,
1947.
4. Tank at Deogarh granted by Ruler
on 22-9-47. All these properties have been
duly recorded in Revenue registers."
After the grants
aforesaid had
been made
in favour of the petitioner, who is the only surviving younger brother of the Ruler, the latter executed, onthe December 30,1947, the Agreement
of Merger by which he transferred to the Dominion
Government authority, jurisdiction and power for
and in relation to the governance
of Bamra
State and also agreed to transfer the administration of the State on January 1, 1948. On June 8,
1949, the Government of Orissa, purporting to
act in exercise of its powers under s. 4 of the Extra
Provincial Jurisdiction Act (XLVII of 1947), read
with Notification dated March 23, 1948, issued
directions to the Bffect that the commitments,
specified in the Schedule to the Notification, made
by the Ruler of Bamra were not reasonable and
bonafide in the opinion of the Provincial Govern:
ment and were declared null and void and not
binding on them, and shall stand annulled as from
the date of the said commitments and that no
Court shall have jurisdiction to call into question
the validity of the Order. The Schedule to the
'-
Notification aforeseid also made reference to the
grants made in favour of the petitioner.
Then
the petition goes to make allegations &a to why
the petitioner was discriminated against on grounds
of political bias. The petitioner also challenged
the authority of the Government of Orissa, or of
Central Government, to annul the said grants, and
characterised the annulment as wholly void. As
the petitioner's memorial and petition requesting th11 Orissa Government"to annual their Order
1961
PromoJ Chandra lhb
••
Thi Stat1 of Orissa
Sinha C. J.
1951
Prornt>d ~"J D1b
~.
Tlw S1aJ1 of Orissa
Sinha C, J.
416 stJl'R:F:ME COURT R~PORTS (1962] SUPP.
•
of June 8, 1949, aforesaid had proved unavailing,
as would appear from th11 Government'• letter
dated Jmw 26, 1957, tho petitioner had no option
left but to move this Court.
The Orders aforesaid of the Government are challenged as null
and void and ultm i-ires the powers of the Government, as violative of Arts. I9 and 3I of the Constitution.
III. Writ Petition 168of1958.
The petitioner in this case is the same as the
petitioner in the Writ Petition 167 of 1958. After
making allegations similar to those in the previous
petition, he goes on to state that the Ruler of the
Bamra State made the following Order on December 8, 1947.
"Bamra Darbar
Order
As my brother Barakumar Pratap Ganga
Deb is going to marry soon and as tho present
maintenance grant will be
insufficient to
maintain himself and his family befitting
his status and position, the present maintenance grant of Rs. 600 p. m. is increased
to Rs. IOOO (one thousand) per month with
effect from the Ist of December I947.
8th Dec., 1947.
Sd-B.C. Tribhuban Deb.
Raja & Ruler, Bamra Statf!."
Tho petitioner goes on to state that, not withstanding the protest of the petitioner, the increased
a.mount of maintenance at Rs. 1000 per month, as
11ranted· by the Ruler, as aforesaid, was reduced
by Mr. D. V. Rege, the Adviser to the OriBsa State,
by his letter dated June I I, 1949 to the following
effect:-
"Dear Bara Kumar Sahib,
With the
approval of Government of
India your allowance has been increased
•
(1) S.C.R. SUPREME COURT REPORTS
417
from Rs. 7200 to Rs. 9600 per annum from
1·4-1948.
Your sincerely,
Sd. D. V. Rege"
This
reduced
amount
of
maintenance
at the rate of Rs. 800 per month
continued
be
to
paid to
the
petitioner from
April
1, 1948 till
July I, 1957. But after
the
passing of the Budget for 1957-58, during the
discussion on the Orissa Appropriation Bill (II of
1957) on June 29, 1957, the then ChiefMinister of
Orissa, Dr. Hare Krishna Mahtab, suddenly, for
political reasons, made a statement in the Assembly
to the following effect:
"Government have decided that on princi•
pies and on grounds of expediency all allowances to relatives of the Rulers should be
annulled with effect from 1st July, 1957, and
the fact should be communicated to the
Government of India, subject to the following
conditions:-
( 1) The existing allowances should be
continued in respect of widowed Rajmatas and
other widows subject to a maximum limit of
Rs. 500 per month.
(2) If, ~s a result of annulment of these
allowances, any hardship is caused to anybody,
he or she may represent to Government for
consideration of his or her case and Government after proper enquiry about the actual
conditions and income of the representationist
and at"ter being satisfied about the genuineness
of the grievance, may, in suitable cases, grant
allowances to anybody upto a maximum limit
of Rs. 500 p.m."
The result of this statement was that the petition1>r's
allowance was annulled. The petitioner's memorials
and petitions to the State Government and to the
1961
"•""" Chandr• Dtl
v.
Tiu State-nfOrissa
Sinha r:. J.
1961
ProtMd ~ra Deb
v.
Tiu Stott ofOrissa
SmAaC.J.
418 SUPREME COURT REPORTS [1962] SUPP.
Centeral Government authorities proved fruitless;
hence the writ petition in respect of the annulment
aforesaid.
IV. Writ Petition .\'n. 4 of 19.59.
.. .......
The petitioners in this case are the mother
and younger brother of the present l\Iaharaja· of tho
State of Kalahandi, previously known as the State
of Kalabandi, one of the native Statos in Orissa.
After the death of the late l\faharnja Braja l\Iohan
Deo of Kalahandi in 1 fl3!J at the age of 43, the
maintenance allowance of Rs. 1200 per month was
fixed for the first petitioner by the Political Depart·
ment of the Government of India. She continued
'
to get the allowance even after the merger of the
State of Kalahandi with the Province of Orissa. The
petitioner No. 2, as the younger brother of the Ruler
of Kalahandi and in accordance with the law and
custom prevailing in that area, was granted by the
then Ruler, his brother, H.H. :llaharaja P. K. Dcu
a maintenance allowance of l~s. 1200 per month.
After the merger of the State in the State of Orissa
and on the recommendation of Shri Rege, I.C.S.,
a maintenance allowance of Rs. !000 per month was
fixed for the petitioner in consultation with the
Government of India. As a result of the statement
made by the then Chief Minister of Orissa, dated
June 28,1957, quoted above, the petitioners havo
been deprived of their juRt claims to maintenance in
accordance with the law.
The petitioners' memo·
rials to the State Government and to the authorities
of the Central Government have produced no results;
hence the Writ Petition against the stopping of
the payment of allowances to the petitioners with
effect from July 1, 195i.
In support of these petitions, three separate
arguments have been addressed to us, and have
covered a very wide field. Shri Viswanatha Sastri
appeared in support of petition No. i9 of 1957; 8hri
I
Purshottam Trikamdass appeared
in support of
(1) S.C.R.
SUPREME COURT REPORTS
419
pPtition No. 167 of 1958 and No. 4 of 1959, and
1961
Shri N. C. Chatterjee appeared in support of the Promod Chandra Deb
petition No. 168 of 1958. Though the arguments
TiuSta:~JOrissa
have been overlapping and not always consistent,
.
SillhaC.J.
the points urged on
behalf of the petitioners m
eRch case may be summarised as follows. The
grants made by the Rulers in eaeh case were in
respect of the .khorposh rights of the membt;rs of
their family, which the Rulers, under the law both
statutory and customary, reco~nised as the rights of
the junior members of the family which is governed
by the rule of Lineal Primogeniture. Generally the
grants took the shape of landed property but very
often the usufruct of the property was taken over
by the State in lieu of a cash allowance. Whether
the Khorposk grant took the form of land or of
money, it was made by a sovereign Ruler. Every
act of the Ruler, whether executive, legislative or
judicial in character, with reference to
modern
democratic ideas of separation of power, has the
force of law. In the hands of the Ruler for the
time being, these distinctions did not hold good.
Whatever they said or did in refotion to the affairs
of the State was law for the time being, which the
Ruler could abrogate or modify according to his
absolute power. But after the disappearance of the
Rulers' sovereign powers, the succeeding power,
whether it was the Government of India or the
Province, and later the State of Orissa, was not
competent to abrogate the orders granting maintenance to the junior members of the family, according to the law of the land, without recourse to legislation by a competent body. In this connection
reliance was pla~ed on the decisions in the case of
Director of Endowments, Government of Hyderabai!. v.
Akram Ali (1) and Madhaorao PhaZke v. The State of
Madhya Bharat('). Hence the Government of India
had to get the Parliament to make the ne<.'essary
legislation, if it intended to do away with the rights
(I) A. I. R. ( 1956) S. C. 60
(2) [1961] ls. c. It. 957.
1961
Promo/ c.i...lta l>t&
••
Tlw S1.u of Orl11a
Sinha C. J.
.(20 SUPREME COlIBT REPORTS [1962] SUPP.
to KhorpoBh created by the previous Rulers of the
States concerned. It was also contended that there
was no entry either in List I or in Li.st III, of the
Constitution, which could authorise the Central
Legislature to make a l&w abrogating those grants.
It was further contended that in respect of some of
tho grants at least, tho Government of India had
recognised the rights of the grantees and had been
making payments through the State of Orrisa, in
pursuance of those recognised rights. In the case of
the petitioners in Writ Petition 168 of 1958 and 4
of 1959, it was further argued that the payments
had been made to. the grantees until June 1957.
It was only in July, 1957, that the payments were
stopped arbitrarily as a result of the statement
made by the Chief Minister of Orissa, as statml
a hove.
-
)II
The learned Solicitor General, who appeared on
behalf of the respondents, first raised a preliminary
objection in respect of the first case (Writ Petition
79 of 1957) relating to the grant by the Ruler of
Talcher. His contention was that it was the admit·
ted case of the parties that the payment to the
petitioner was stopped in April, 1949, and the petitioner was informed by the Government's order
<lated June 22, 1949 that the Government's decision
to stop the payment was final and could not be
reconsidered. That being so, the rights guaranteed
by the Constitution could not be founderl upon, in
respect of a cause of action which arose before the
Constitution. In the second case, namely Writ
Petition 167 of 19()8, the right, if any, haa been
abrogated by the Government's Notification dated
June 8, 1949, hence in this case also the preliminary
objootion, if it has any force, applies. Tho other arguments,of the Solicitor General, which apply to all
~
the cases, were to the effect that the grant, if any,
i
was not grant of land but of money, and, therefore,
•
was not a grant properly so called; that there may
•
(1) S.C.R.
SUPREME COURT REPORTS
421
have been a law relating to the making of Klwrposh
grants to junior members of the family of the
Rulers governed by the Rule of Lineal Primogeniture, but the act of making ea.ch individual grant
could not properly be characterised, as enacting a
Jaw; it could, at best, be an order in exercise of the
powers of the Ruler giving effect to the law in question. Alternatively, it was argued that whether or
nqf, the making of a grant was enacting a law, and
whatever its nature, it could be abrogated by the
succeeding sovereign power, without recourse to
legislation. It was further argued that the matter in
controversy would be governed by the provisions of
the Extra Provincial Jurisdiction Act (XLVII of
1947), which came into effect on December 24, 1947.
Reliance was placed upon s. 3 of the Act which lays
down that it "shall be lawful for the Central
Government to exercise extra provincial jurisdiction
in such manner as it thinks fit". It was pointed out
that under sub. s.(2) of s. 3 of the Act, the Central
Government had been authorised to delegate its
jurisdiction, and this power the Government exercised in favour of the Provincial Government of
Orissa. The terms of s. 4(1) to the effect that the
Central Government may make such order as may
seem to it expedient for the effective t>xercise of
its jurisdiction under the Act, were also relied
upon as the source of the authority for cancelling the Khorposh allowance in favour of the
petitioners made by the ex- Rulers. It was further
contended that s. 5 of the Act validated the
impugned orders of the Government, and whether
or not they were legal, thay "shall be valid
as if they had been done according to the local
law then in force in that area". And lastly,
it was urged that, in any view of the matter, the
orders impugned by the petitioners in these cases
were acts of State, the legality of which could not
be canvassed in a Municipal Court.
1961
Promod Chandra Deb
v.
The Slotf of Orisso_.
Sinha C. J,
1961
Pr.,... Chandra Deb
v.
Tht St.t~ <'f Ori Ho
su.1 .. c. J.
422 SUPREME COURT REPORTS (1962) SUPP.
I
Before dealing with the arguments on the
merits of the controversy, it is convenient first to
deal with the preliminary objection raised with
reference to the first two petitions, on behalf of
the respondents, to the effect that the or<lers
pa.Siied before the coming into em~ct of the Constitution could not be challenged in a writ petition
because no \\Tit could be iSBue<l in respect of orders
p888ed before the Constitution came into force. If
the grants were in the shape of land, and if the
Government bad deprived the petitioners of those
lands, it could have been argued with a good deal
of force that the disposseSBion from the lands took
place at a time when the Constitution was not in
force. But it appears that in these cases the grants
ultimately aSBumed the shape of money allowances
payable at regular intervals. They were to be paid
periodically. Hence, every periodic deprivation
of the money allowance would give the petitioners
a right to approach this Court for relief. It appears
from the pleadings of the parties that the petitioners entered into prolonged correspondence insisting upon their righta under the grants by the former
Rulers and trying to impress upon the Government
the justnellll of their demands. It was only in 1957
that the petitioners realised that they had no hopes
of any revision by the Government of the policy
which they had adopted of cancelling those grants.
In our opinion, therefore, the preliminary objection
has to be overruled.
In order to determine the controverAy on its
merits, it is necessary to trace the history of the
relationship between the Rulers and the Government
of India before the territories concerned became a
pa.rt of the territory of India. During the British
regime, the Rulers of the Indian States (then called
native States) enjoyed certain amount of sovereign
powers, which were not uniform.
The extent of
their sovereignty under the suzerainty or the
)-•
(lJS.C.R.
SUPREME COURT HEPOI~TS 423
paramount authority of the British Government
depended upon the several agreements between
them. ThP position is thus described in the White
Paper on Indian States (page 32, para 71 }:
"Till the lapse of Pararuountcy, the
Crown as represented by and opera Ung through
the Political authorities provided the nexus
between the Indian S tatcs and the Central
and Provincial Governments.
The pivot of
this arrangement was the Viceroy, who as
Crown Representative represented to the
Indian States the suzeraintv uf the British
Crown while at the same time he was, in
relation to British India, the head of the
Government as Governor-General. '.1'110 Indian
Independence Act, 1947, rcleasc'd the States
from all their obligations to the Crown".
After the coming into effect of the Indian Independence Act and the establishment of the Indian
Dominion, as a result of negotiation between the
Dominion of India and the Indian States, certain
steps were taken towards the integration of those
States with India. The first step was the accession
of these States in accordance with the Instruments
of Accession, which appear in Appendices VII and
VIII at pages 165 to 173 of the White Paper. As a
result of the accession, the three States with which
we are now concerned-the States of '.l'alcher, Bamra
and Kalaliantli-acceded to the Dominion of India
"with the intent that the Governor-General of India
the Dominion, Legislature, the Federal Court and
any other Dominion authority established for the
purposes of the Dominion shall, by virtue of this
Instrument of Accession but subject always to the
terms thereof, and for the purposes only of the
Dominion, exercise in relation to the States ... such
functions as may be vested in them by or under the
Government of India Act, 1935, as in force in the
Dominion of India on the 15th day of August,
19•1
Pum1od Cluaulra Deb
v.
Tht State of Orissa
Sinha C. J.
1'1r11u1ti Chandra Dei
v.
'J11t Stale of Orisia
fiinha C. J.
424 SUPREME COURT ItEPORTS [1962) SUPP.
194 7". This accession did not affect the continuance of tho sovereignty of the Rufors entering into
the agreomcnt, save as provided by or under t.ho
Instrument of Accession.
It, however, provided
that in respect of such matters as are specified in
the Schedule annexed to tile Instrument, which may
he compendiously described as "Defence, External
Affairs and Communicaticms·•, the Dominion Legislature may make laws which shall apply to the
acceding States also. IL is not neCCll83.ry to notice
the difference between the Instrument. of Accession
as contained in Appendix VII and that cont.ained in
Appendix VIII for the })Urposes of these cases.
The second step was the signing of what has been
termed "Standstill Agreement", the form of which
appe.ars in Appendix IX at pages li3-74 of the
White Puper.