# I959 August 4. z959 TheStato of Saurashlra v. Menum Haji Ismail Haji

- **Citation:** [1960] 1 S.C.R. 537
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Bench:** S. R. DAs, N. H. Bhagwati, M. Hidayatullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i959-august-4-z959-thestato-of-saurashlra-v-menum-haji-ismail-haji-1789
- **Pages:** 15

## Headnote

Act of State-Taking over of administration of Junagadh Staie
by Domi;, o"on of India-Resumption of property by Administi;ator
before completion of such act-If an act of State not justiciable in
municipal Co14Tts.
The suit, out of which the present appeal arose, was one
originally brought by the respondent against the State of
Junagadh, later on substituted by the State of Saurathtra, for a
declaration that the Administrator's order dated October r, 1948,
resuming the immQveable property in suit was illegal, unjust and
against all canons of natural justice. The.suit was decreed by
the Civil Judge and the decree was affirmed by the High Court
in appeal. The only point for determination in this appeal was
whether the act of resumption by the Administrator was an act
of State performed on behalf of the Government of India and
involved an alien outside the State and was not, therefore,
justiciable in the municipal Courts. With the passing of the
Indian Independence Act 1947, and lapse of paramountcy by
reason of s. 7 thereof, the Nawab of Junagadh became sovereign,
but instead of acceding to the new Dominion he left for Pakistan.
It appeared from the White Paper on Indian States that the
Government of India took over the administration of the State
on November 9, 1947• at the request of the Nawab's Council, but
did not formally annex it till January 20, 1949• and during that
period the Administrator maintained law and order and carried
on the administration.
Held, that there could be no doubt thaf the act of the
Dominion of India in assuming the administration of Junagadh
State was an act of State pure and simple and the resumption in
I959
Godrej &Co
v.
Commissioner of
I n&ome-tax
Das C.J.
I959
August 4.
z959
TheStato of
Saurashlra
v.
Menum Haji
Ismail Haji
Hidayalullo J.
538
SUPREME COURT REPORTS [1960(1}]
question having been made by the Administrator before that act
was completed and at a time when the people of Junagadh,
including the respondent, were aliens outside the State, the act
of resumption, however arbitrary, was an act of State on behalf
of the Government of India and was not, therefore, justiciable in
the municipal Courts.
The test in such cases must be whether the State or its
agents purported to act "catastrophically " or subject to the
ordinary course of law.
Salaman v. Secretary of State for India, (1906) l K.B. 613,
Johnstone v. Pedlar, (1921) 2 A.C. 262, Secretary of State in Council
for India v. Kamachec Boye Sahaba, (1859) 13 Moore P.C. 22, Vaje
Singh Ji Joravar Singh 0- Ors. v. Secretary of State for India,
(1924) L.R. 51 I.A. 357, Dalmia Dadri Cement Co. v. Commissioner
of Income-tax, [1959] S.C.R. 729, relied on.
Forester and Others v. Secretary of State for India, 18 W.R.
349 P.C., considered.
The essence of an act of State was the arbitrary exercise of
sovereign power, on principles other than or paramount to the
municipal law. Although the sovereign might allow the inhabitants to retain their old laws and customs, it could not itself be
bound by them until it purported to act within them, thus
bringing to an end the act of State.
Campbell v. Hall, l Comp. 204; 98 E.R. 1045, Ruding v.
Smith, 2 Hag. Con. 384; 161 E.R. 774 and E.I. Co. v. Syed Ali,
7 M.I.A. 555, referred to.
CIVIL• APPELLATE
JURISDICTION: Civil Appeal
No. 185 of 1955.
Appeal from the judgment and decree dated the
February 19, 1953, of the former Saurashtra High
Court in Civil First Appeal No. 16 of 1952, arising out
of the judgment and decree dated December 15, 1951,
of the Civil Judge, Senior Division, Junagadh in Civil
Suit No. 470 of 1950.
G. !(. Daphtary, Solicitor-General of India, R. Ganapathy Iyer and D. Gupta for the appellant.
I. N. Shroff, for the respondent.
H.J. Umrigar and K. L._ Hathi, for the lnterveners.
1959. August 4. The Judgment of the Court was
delivered by
liIDAYATULLAH J.-This appeal with a certificate
from the former High Court of Saura11htra under
Art.133 of the Constitution read with Ss. 109 and 110 of
S.C.R.
SUP

## Text

S.C.R.
SUPREME COURT REPORTS
537
within the decisions of this Court in the earlier cases
referred to above.
In the light of the above discussion it follows, therefore, that the answer to the referred question should
by in the negative. The result, therefore, is that this
appeal is allowed, the answer given by the High Court
to the question is set asicfo aDd the question is answered in the negative. The appelli1nt must get the costs
of the reference in the High Court and in this Court.
A ppe,al allowed.
THE STATE O:F SAURASHTRA
v.
MEMON HAJI ISMAIL HAJl
(S. R. DAs, C.J., N. H. BHAGWATI and
M. HIDAYATULLAH, JJ.)
Act of State-Taking over of administration of Junagadh Staie
by Domi;, o"on of India-Resumption of property by Administi;ator
before completion of such act-If an act of State not justiciable in
municipal Co14Tts.
The suit, out of which the present appeal arose, was one
originally brought by the respondent against the State of
Junagadh, later on substituted by the State of Saurathtra, for a
declaration that the Administrator's order dated October r, 1948,
resuming the immQveable property in suit was illegal, unjust and
against all canons of natural justice. The.suit was decreed by
the Civil Judge and the decree was affirmed by the High Court
in appeal. The only point for determination in this appeal was
whether the act of resumption by the Administrator was an act
of State performed on behalf of the Government of India and
involved an alien outside the State and was not, therefore,
justiciable in the municipal Courts. With the passing of the
Indian Independence Act 1947, and lapse of paramountcy by
reason of s. 7 thereof, the Nawab of Junagadh became sovereign,
but instead of acceding to the new Dominion he left for Pakistan.
It appeared from the White Paper on Indian States that the
Government of India took over the administration of the State
on November 9, 1947• at the request of the Nawab's Council, but
did not formally annex it till January 20, 1949• and during that
period the Administrator maintained law and order and carried
on the administration.
Held, that there could be no doubt thaf the act of the
Dominion of India in assuming the administration of Junagadh
State was an act of State pure and simple and the resumption in
I959
Godrej &Co
v.
Commissioner of
I n&ome-tax
Das C.J.
I959
August 4.
z959
TheStato of
Saurashlra
v.
Menum Haji
Ismail Haji
Hidayalullo J.
538
SUPREME COURT REPORTS [1960(1}]
question having been made by the Administrator before that act
was completed and at a time when the people of Junagadh,
including the respondent, were aliens outside the State, the act
of resumption, however arbitrary, was an act of State on behalf
of the Government of India and was not, therefore, justiciable in
the municipal Courts.
The test in such cases must be whether the State or its
agents purported to act "catastrophically " or subject to the
ordinary course of law.
Salaman v. Secretary of State for India, (1906) l K.B. 613,
Johnstone v. Pedlar, (1921) 2 A.C. 262, Secretary of State in Council
for India v. Kamachec Boye Sahaba, (1859) 13 Moore P.C. 22, Vaje
Singh Ji Joravar Singh 0- Ors. v. Secretary of State for India,
(1924) L.R. 51 I.A. 357, Dalmia Dadri Cement Co. v. Commissioner
of Income-tax, [1959] S.C.R. 729, relied on.
Forester and Others v. Secretary of State for India, 18 W.R.
349 P.C., considered.
The essence of an act of State was the arbitrary exercise of
sovereign power, on principles other than or paramount to the
municipal law. Although the sovereign might allow the inhabitants to retain their old laws and customs, it could not itself be
bound by them until it purported to act within them, thus
bringing to an end the act of State.
Campbell v. Hall, l Comp. 204; 98 E.R. 1045, Ruding v.
Smith, 2 Hag. Con. 384; 161 E.R. 774 and E.I. Co. v. Syed Ali,
7 M.I.A. 555, referred to.
CIVIL• APPELLATE
JURISDICTION: Civil Appeal
No. 185 of 1955.
Appeal from the judgment and decree dated the
February 19, 1953, of the former Saurashtra High
Court in Civil First Appeal No. 16 of 1952, arising out
of the judgment and decree dated December 15, 1951,
of the Civil Judge, Senior Division, Junagadh in Civil
Suit No. 470 of 1950.
G. !(. Daphtary, Solicitor-General of India, R. Ganapathy Iyer and D. Gupta for the appellant.
I. N. Shroff, for the respondent.
H.J. Umrigar and K. L._ Hathi, for the lnterveners.
1959. August 4. The Judgment of the Court was
delivered by
liIDAYATULLAH J.-This appeal with a certificate
from the former High Court of Saura11htra under
Art.133 of the Constitution read with Ss. 109 and 110 of
S.C.R.
SUPREME COURT REPORTS
539
the Code of Civil Procedure, has been brought against
the judgment of that Court dated February 19, 1953, in
Civil First Appeal No. 16 of 1952.
The appellant is the State of Saurashtra, which
stood substituted for the State of Junagadh,. against
which the snit was originally filed.
The respondent,
Memon Haji Ismail Haji Valimahomed of Junagadh,
(hereinafter referred to as the respondent), brought this
suit originally against two defendants, the State of
Junagadh and one Jamadar Abu Umar Bin Abdulla
Abu Panch (hereafter referred to as Abu Panch), for a
declaration that the Secretariat Order No. 2/3289 dated
October 1, 1948, was "illegal, unjust and against all
canons of natural justice ". He also asked for an
alternative relief that the second defendant do return
to him a sum of Rs. 30,000 plus Rs. 541-2-0, being the
consideration and expenses of a transfer of immovable
property resumed under the said Order. The suit was
decreed by the Civil Judge, to whom after integration
the case was transferred, and the decree was confirmed
by the High Court by the judgment under appeal. It
may be pointed out that during the course. of this suit,
a. third defendant, namely, the Mamlatdar, Viswadar
was also impleaded, because the property of Abu Panch
had passed into the management of the Saurashtra
Government under what is described in the case as the
Gharkhod Ordinance. It may further be pointed out
that the two defendants other than the State of Saurashtra were discharged from the suit, and it proceeded only against the State of Saurashtra for the relief
of declaration above described.
The facts of the case are as follows : One Ameer
Ismail Khokhar Ka.yam Khokhar purchased a plot of
land in Junagadh town from the State of Junagadh,
and built a house on it. A Rukka was issued to him
on December 2, 1939, which is plaintiff's Exhibit
No. 34. In the year 1941, the Nawab of Junagadh
purchased the property from Khokhar, though the
document by whfoh this purchase took place has not
been produced in the case. On November 17, 1941, the
Nawab gave this property by gift to Abu Panch. Abu
1959
The Slate of
Saurashlra
v.
MemonHaji
Ismail Haji
Hidayalullah J.
I959
The State of
Saurashlra
v.
Mtmon Haji
Ismail Haji
Hidayatullah J.
540
SUPREME COURT REPORTS [1960(1)]
Panch in his turn sold on November 24, 1943 the property to the respondent for Rs. 30,000. In the original
gift deed (described in plaintiff's Exhibit dated May 18,
1942) there does not appear to have been any mention
of a power to transfer the property. Indeed, in the
said document of May 18, 1942, it was stated that the
house was given for the " use and enjoyment " of Abu
Panch. Subsequently, on February 12, 1944, the
Nawab ordered certain amendments in the Palace
Order by making it possible for Abu Panch to sell the
house. It was stated as follows :
" .. . you are hereby granted from the date of gift
i.e. 17-11-41 the title to sell the house as defined in
this Rukka and as per directions received."
It appears that this additional Shera was issued to
validate the sale which had been effected by Abu Panch
earlier. However, t·he matters stood thus when after
Independence the affairs of Junagadh State fell into a
chaos, and at the invitation of the State Council the
the Government of India ordered the Regional Commissioner, Western India and Gujerat States Region to
assume charge of the administration of the State on
behalf of the Government of India. The Regional
Commissioner on November 9, 1947, issued a Proclamation which was published in the Destural Amal
Sarkar Junagadh of November 10, 1947, stating that
he had assumed charge of the administration of the
Junagadh State at 18·00 hours under the orders of the
Government of India. The Proclamation which is
brief, may be quoted here :
"I, N. M. Buch, Barrister-at-law O.B.E., I.C.S.,
Regional Commissioner, Western India &- Gujarat
States Region, have this day assumed charge of the
administration of the Junagadh State at 18·00 Hours
under the orders of the Government of India, at the
request of the Junagadh State Council supported by
the people of Junagadh in view of the complete
breakdown of administration resulting in chaotic
condition in the State. The first task of myself and
my officers will be to ensure complete peace and
order throughout Junagadh State territory, and to
give even justice to all communities. The majority
S.O.R.
SUPREME COURT REPORTS
541
community of the State has a special responsibility
for the protection of the minorities.
All the
Junagadh State Officials and subjects are, therefore,
invited to offer unconditional and loyal support and
cooperation to the new Administration. Any a.ct of
non.cooperation and disloyalty must in the interest
of the people and for the preservation of " peace and
order " be dealt with and shall be dealt with firmly.
J unaga.dh,
NIM. Buch,
9th November, 1947,
Regional Commissioner,
Western India. & Gujarat
States Region."
On November 14, 1947, the Regional Commissioner
by a Notification (No. 6 of 1947), appointed Shri S. W.
Shiveshwa.rka.r as Administrator of Juna.gadh State.
That N otifica.tion was as follows :
"Mr. S. W. Shiveshwa.rka.r M.B.E., I.C.S. on being
relieved as Secretary to the Regional Commissioner,
Western India. and Gujarat States Region, is appointed Administrator of the Junaga.dh State vice Rao
Sa.heh T. L. Shah, B.A. Under my genera.I guidance
and supervision the Administrator will have full
authority to pass all orders and to take all action
necessary to carry on the affairs of the J una.ga.dh
State.
*
*
*
J unaga.dh,
N. M. Buch,
14th November, 1947.
Regional Commissioner,
Western India. & Gujarat
States Region."
On October 13, 1948, Shri Shiveshwarkar passed
Secretariat Order No. R/3289of1948, which was impugned in the suit. It reads :
"Land measuring Sq. Yds. 1,846-9-12 with the
building thereon, situated outside Ma.jevdi Gate
opposite workshop was given as a gift by way of
Inam to Abu U mar Bin Abdulla Abu Panch '::.f
Junagadh under Private Secretary's Office No. Pl58
dated 17th November, 1941. The donee had no right
to sell the said land and building under Rulli
No. 32/98 and the vendor Sheth Haji Ismail Haji
6Q
z959
Thi Slate of
S aurashlra
v.
Memon Haji
Ismail Haji
Hidayatullah J.
I9$9
The State of
Saurashtra
v.
Memon·Haji
Ismail Haji
Hidayatullah ].
542
SUPREME COURT REPORTS [1960(1)]
Valimahomed had purchased the same with the full
knowledge of the contents hereof.
The grant being a wanton and unauthorised gift
of Public property the above-said order is hereby
cancelled and' as the subsequent purchaser does not
get any .right, title or interest higher than that
possessed by the donee, Mr. Abu Panch, it is ordered
that the said land with the superstructures thereon
should be resumed forthwith by the State as State
property.
Sd. S. W. Shiveshwarkar
Administrator
President's Executive
Council, Junagadh State_"
It appears that immediately afterwards the Administrator took this property in his possession, and the
plaintiff-respondent after serving a notice under s. 423
of the Junagadh State Civil Procedure Code (corresponding to s. 80 of the Civil Procedure Code, 1908) filed
the suit for the above declaration in the High Court of
the State. As pointed out above, the suit was transferred subsequently to the Civil Judge, Senior Division,
Junagadh, who decreed it granting the declaration on
December 15, 1951. He held that the Administrator's
order was illegal and inoperative and also against " all
canons of natural justice." An appeal was filed by the
State of Saurashtra pleading, as was done in the suit
itself, that the action of Shri Shiveshwarkar who was
a delegate of the Government of India appointed under
s. 3(2) of the Extra.Provincial Jurisdiction Act, was
not justiciable being an act of State, that the Civil
Court's jurisdiction was barred under s. 5 of the Extra.-
Provincial Jurisdiction Act and s. 4(2) of Ordinance
No. 72 of 1949 and that the grant was always resumable by the Ruler and Shri Shiveshwarka.r as the
successor could also resume the same.
The High Court of Saurashtra referred in detail
to a minute prepared by Sir Raymond West in
Col. Webb's Political Practice, wherein the author had
stated what the rights of Rulers were to resume grants
ma.de by them and stated that such resumption was
not possible by the Rulers.
The High Court also
S.C.R.
SUPREME COURT REPORTS
543
stated that this action could not be regarded as an act
of State and further that the jurisdiction of the Courts
was neither barred by s. 5 of the Extra-Provip.cia.l
Jurisdiction Act nor by s. 4(2) of Ordinance No. 72
of 1949.
In this appeal, the learned Solicitor-General on
behalf of the State of Saurashtra abandoned three of
the contentions which were raised in the Courts below.
He said that the State was not relying upon the power
of Shri Shiveshwarkar as successor to the Ruler of
Junagadh to resume this property, and no reference
to Sir Raymond West's minute was therefore necessary. He also said that the State Government did not
seek to justify the resumption nor question the jurisdiction of the Court under the Extra-Provincial Jurisdiction Act and the above-mentioned Ordinance. He
pleaded that the action of Shri Shiveshwarkar was an
act of State performed on behalf of the Government of
India, and was therefore not justiciable in Municipal
Courts.
The term 'act of State' has many uses and meanin,gs.
In France and some Continental countries the acts of
the State and its officers acting in their official capacity
are not cognizable by the ordinary courts nor are they
subject to the ordinary law of the land. The reason
of the rule is stated to be that the State as the fount
of all law cannot be subordinate to it. In our system
of law which is inherited from English Jurisprudence
this is not accepted and save some acts of a special
kind, all other official acts must be justified as having
a legal foundation. In this sense 'act of State' means
not all governmental acts as it does in the French and
Continental Systems but only some of them.
The
term is next used to designate immunities and prohibitions sometimes created by statutes. The term is also
extended to include certain prerogativ.es and special
immunities enjoyed by the sovereign and its a.gents in
the business of internal government. The term is
even used to indicate all acts into which, by reason
that they are official in character, the Courts may not
inquire, or in respect of which an official declaration
is binding on the Courts.
I959
The Slate of
Saurashlra
v.
MemonHaji
Ismail Haji
H idayatullah J.
r959
TM State of
Saurashtra
v.
Memon Haji
Ismail Haji
Hidayalullali J.
544
SUPREME COURT REPORTS (1960(1))
We are not concerned with these and such other
meanings. The defence is founded on an act of State
involving an alien outside the State.
Such an act of
State was described in elegant phrase by FletcherMoulton, L. J., in Salaman v. Secretary of State for
India(') as 'a catastrophic change constituting a new
departure.' It ·is a sovereign act which is neither
grounded in law nor does it pretend to be so.
Examples of such 'catastrophic changes' are to be found in
declarations of war, treaties, dealings with foreign
countries and aliens outside the State. On the desirability or the justice of such actions the Municipal
Courts cannot form any judgment. In Civil commotion, or even in war or peace, the State cannot act
'catastrophically' outside the ordinary law and there
is legal remedy for its wrongful acts against its own
subjects or even a friendly alien within the State. See
Johnstone v. Pedlar (2). But there is immunity from
courts' interference in respect of acts done by the
State against an alien outside the State.
The question thus is always: Did the State or its
agents purport to act 'catastrophically' or subject to
the ordinary course of the law? This question was
posed in Secretary of State in Council for India v.
Kamachee Boye Sahaba (8) by Lord Kingsdown in these
words:-
" What was the real character of the act done in
this case? Was it a seizure by arbitrary power on
behalf of the Crown of Great Britain, of the dominions and property of a neighbouring State, an act
not affecting to justify itself on grounds of Municipal
Law ? Or was it, in whole or in part, a possession
taken by the Crown under colour of legal title of the
property of the late Raja of Tanjore, in trust for
those who, by law, might be entitled to it on the
death of the last possessor? If it were the latter,
the defence set up, of course, has no foundation.''
In that case the Supreme Court of Madras was
moved by a bill to claim certain properties seized on
the death of Raja Sivaji of Tanjore without heirs. The
(1) (1go6) 1 K.B. 613 at 6to.
(2) (1921) 2 A.C. 262.
(5) (1859) 13 Moore P.C. 22.
S.C.R.
SUPREME COURT REPORTS
545
claim was accepted by the Supreme Court of Madras
but was rejected by the Privy Council. Lord Kingsdown
ob-served in the case :-
"The general principle of law could not, with any
colour of reason, be disputed. The transactions of
independent States between each other are governed
by other laws than those which Municipal Courts
administer. Such Courts have neither the means of
deciding what is right nor the power of enforcing
any decision which they make."
After deciding that there was a.n act of State, Lord
Kingsdown further observed:
" of the propriety or justice of that act, neither
the Court below nor the Judicial Committee have
the means of forming, 01· the right of expressing if
they had formed, any opinion. It may have been
just or unjust, politic or impolitic, beneficial or injurious, taken as a whole, to those whose interests
a.re affected. These are considerations into which
their Lordships cannot enter. It is sufficient to say
that, even if a. wrong has been done, it is a. wrong
for which no Municipal Court of justice can afford
a. remedy."
Similar view was expressed also in Raja of Ooorg v.
East India Company (1), Raja Saligram v. Secretary of
State for India in Council (2); and Sardar Bhagwan
Singh v. Secretary of State (3), and Secretary of State v.
Sardar Rustam Khan (4). The principJe of these cases
has been extended to all new territories whether
acquired by conquest, or annexation or cession or
otherwise and also to rights, contracts, concessions,
immunities and privileges erected by the previous
para.mount power. These are held to be not binding
on the succeeding power even though before annexation it was a.greed between the two powers, that they
would be respected. Lord Dunedin in Vaje Singh Ji
Joravar Singh & {)thers v. Secretary of State for India (5)
summed up the law in these words:-
"When a territory is acquired by a. sovereign
State for the first time that is a.n act of State. It
(1) (186o) 29 Beav. 300.
(2) (1872) L.R. Ind. App.
Suppl. Vol. n9.
(3) (1874) L.R. 2 A.I. Ca.s. 38.
(4) (1941) L.R. 68 I.A. 109.
(S) (1924) L.R. 51 I.A. 357, ~6o.
I959
The State of
Saurashtra
v.
Memon Haji
Ismail Haji
H idayatullah J.
1959
The State of
Saurashtra
v.
1lfemon Haji
lsinail Huji
Jlidayatull(l.h J.
546
SUPREME COURT REPORTS [1960(1)]
matters not how the acquisition has been brought
about. It may be by conquest, it may be by cession
following on treaty, it may be by occupation ·of
territory hitherto unoccupied by a recognized ruler.
In all cases the result is the same. Any inhabitant
of the territory can make good in municipal courts
established by the new sovereign any such rights, as
that sovereign has, through his officers, recognized.
Such rights as he had under the rule of predecessors
avail him nothing. May 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 enfore these stipulations
in the municipal Courts.
The right to enforce
remains only with the high contracting parties."
These cases and others like Cook v. Sprigg('), Hoani
Te
H~uheu Tukino v. Aotea District Maori Land
Board(') were approved and applied by this Court in
Dalrnia Dadri Cernent Co. v. Comrnissioner of Incornetax (") in which an agreement with the ex-Ruler of
Jhind for tax concessions was held not binding upon
the Income-tax authorities after the merger of the
State with the Union of India and the defence of an
act of State was upheld. Venkatarama Aiyar, J., then
observed:-
" When the sovereign of a State-meaning by that
expression, the authority in which the sovereignty
of the State is vested, enacts a law which creates,
declares or recognizes rights in the subjects, any
infraction of those rights would be actionable in the
courts of that State even when the infraction is by
the State acting through its officers. It would be
no defeuce to that action that the act complained
of is an act of State, because as between the sovereign and his subjects there is no such thing as an
act of State, and it is incumbent on his officers to
show that their action which is under challenge is
within the authority conferred ou them by law.
Altogether different considerations arise when the
act of the sovereign has reference not to the rights
(1) (1899) A.C. 572.
(2) (1941) A.C. 308.
(3) [1959] S.C.R. 729, 740-<11.
-
S.C.R.
SUPREME COURT REPOR'fS
547
of his subjects but to acquisition of territories
belonging to another sovereign.
That is a matter
between independent sovereigns, and any dispute
arising therefrom must be settled by recourse not to
municipal law of either State but to diplomatic
action, and that failing, to force. That is an act of
State pure and simple, and that is its character until
the process of acquisition is completed by oonquest
or cession. Now, the status of the residents of the
territories which are thus acq'uired is that until
acquisition is completed as aforesaid they are the
subjects of the ex-sovereign of those territories and
thereafter they become the subjects of the new sovereign. It is also well established that in the new
set up these residents do not carry with them the
rights which they possessed as subjects of the exsovereign, and that as subjects of the new sovereign,
they have only such rights as are granted or recognized by him; vide Secreta,ry of State for India
v. Bai Rajbai (1), Vajesingji Joravar Singhji and
Others v. Secretary of State (2), Secretary of State v.
Sardar Rustam Khan (3) and Asrar Ahmed v. Durgah
Committee, Ajmer (4). In law, therefore, the process
of acquisition of new territories is one continuous
act of State terminating on the assumption of sovereign powers de jure over them by the new sovereign
and it is only thereafter that rights accrue to the
residents of those territories as subjects of that sovereign. In other words, as regards the residents of
territories which come under the dominion of a new
sovereign, the right of citizenship commences when
the act of State terminates and the two, therefore,
cannot co-exist.
It follows from this that no act done or declaration
made by the new sovereign prior to his assumption
of sovereign powers over acquired territories can
quoad the residents of those territories be regarded
as having the character of a law conferring on them
rights such as could be agitated in his courts."
(1) L.R. 42 I.A. 229.
(3) (1941) L.R 68 I.A. 109.
(2) (1924) L.R. 51 I.A. 357, 360.
(4) (1947) A.I.R. 1947 P.C. 1.
1959
Tlze Stale of
Saurashtra
v.
Memon Haji
Ismail Haji
Hidayatullah ],
I959
The State of
Saurashtra
v.
Memon Haji
Ismail Haji
Hidayatullah ].
548
SUPREME COURT REPORTS [1960(1)]
It is, however, otherwise if the act of the new sovereign is meant to be within the law and is not a
concomitant of an act of State.
One such case was
Forester and Others v. Secretary of State for India (1). In
that case one of the questions was whether there was
an act of State at all,-a question which the Courts
can legitimately consider. It was held thatthe Begum,
whose estate was seized by the East India Company
after her death, wa.s not a sovereign princess but a
mere Jaidadar and th,e resumption of her jagir upon
her death was not an act of State but an act done under
a legal title. It was observed :-
" The act of Government in this case was not the
seizure by arbitrary power of territories which upto
that time had belonged to another sovereign State ;
it was the resumption of lands previously held from
the government under a particular tenure, upon the
alleged determination of that tenure. The possession
was taken under colour of legal title, that title being
the undoubted right of the sovereign power to
resume, and retain. or assess to the public revenue,
all lands within its territories tipon the determination
of the tenure, under which they may have been
exceptionally held rent free.
If by means of the
continuance of the tenure or for other cause, a right
be claimed in derogation of this title of the government, that claim, like any other arising between
the government and its subjects would prima facie
be cognizable by the Municipal Courts of India."
From these cases it is manifest that an act of State
is an exercise of sovereign power against an a.lien and
neither intended nor purporting to be legally founded.
A defence of this kind ooes not seek to justify the
action with reference to the' law but questions the very
jurisdiction of the Courts to pronounce upon the legality or justice of the action.
We have now to consider whether the necessary
facts to support the plea in defence existed in this
case. We must determine what was the status of the
respondent on the date the impugned Order was passed
against him. The position of the ex-Rulers of the
former Indian States has, on more than one occasion,
(1) 18 W.R. 3'19 P.C,
S.C.R.
SUPREME COURT REPORTS
549
been analysed by this Court and need not detain us for
long. After the lapse of paramountcy by reason of s. 7
of the Indian Independence Act 1947, the Nawa.b of
J unagadh became a sovereign but he did not accede to
the new Dominion by executing an Instrument of
Accession as did the other Rulers in Saurashtra. He
left the country. The position of Junagadh w~s thus
unique and what subsequently happened is describ.ed
in the White Paper on Indian States which it has
become customary to rely upon as a constitutional
document, without proof.
"Mter the Nawab of Junagadh had left the State
for Pakistan, the administration of this State was
taken over by the Government of India on November 9, 1947 at the request of the Nawab's Council.
Obviously, the action taken by the Government of
India. had the fullest approval of the people of Junagadh in that the results of the referendum held in
Junagadh and the adjoining smaller States in
February 1948, showed that voting in favour of
accession to India was. virtually unanimous. During
the period the Government of India. held charge of
the State, an Administrator appointed by the
Government of India assisted by three popular representatives conducted the administration, of the
State. In December 1948, the elected representatives
of the people of Junagadh resolved that the administration of the State be made over ~o the Government
of Saurashtra and that the representatives of
Junagadh be enabled to participate in the Constituent Assembly of Saurashtra State with a. view to
framing a common Constitution for Sa.urashtra and
theJunagadh State. Similar resolutions were adopted
by the representatives of Manavadar, Mangrol,
Bantwa, Babariawad and Sardargarh. Accordingly, a
Supplementary Covenant (Appendix XXXVI) was
executed by the Rulers of Kathiawar States with a
view to giving effect to the aforementioned resolutions. The administration of Junagadh was taken
over by the Saurashtra Government on January 20,
1949,..... . Accordingly the Constitution treats
Juna.gadh and these States as part of Sa.ura.sht:ra,"
70
I959
Th• State of
Saurashtra
v.
MemonHaji
Ismail Haji
Hidayatullah ].
c959
The State of
Saurashlra
v.
Memon Haji
I stnail H aji
Hidayatulldh ].
550
, SUPREME COURT REPORTS (1960(1)]
It would appear from this .that between November 9, 1947 and January 20, 1949, there was no forinal
annexation of the· State by the Dominion of India,
though the Central Govtirnment through its Regional
Commissioner, Western India and Gujrat States Region
was maintaining law and order and carrying on the
administration. On November 16, 1947, the following
Notification was issued by the Administrator:-
"NOTIF'ICATION
No. 9 of 1947.
It is hereby ordered that the J unagadh State
Order No. 568 of 1944 is cancelled. The ·State
Council created by the said order is hereby dissolved.
Any reference required by any Enactment, Rules,
Orders, Convention, Usage etc. to be made to the
Council shall henceforth be made to the Administrator, Junagadh State, in whom all the powers so far
exercised by the Council and its Members shall
henceforth vest.
Junagadh,
16th November, 1947
. S. W. Shiveshwarkar,
Administrator, J unagadh
State."
From that date the administration of the Junagadh
State was centered in the Administrator as the agent
of the Dominion of India. The people of Junagadh
did not, strictly speaking, become the citizens of the
Dominion till much later. During the interval they
were aliens even though they desired union with India
and had expressed themselves almost unanimously in
the Referendum.
The act of the Dominion in thus assuming the
administration of the J unagadh State was an act of
State pure and simple and the action of the Administrator was taken before the act of State was over.
The respondent contended before us that the theory
of an act of State did not apply to this case. According
to him the State Council was in existence and had
invited the Dominion of India to step in and all the
local laws were still applicable. He pointed out that
the Saurashtra Civil Procedure Code was a.mended by
a notification on 7th July, 1948, and that also proved
-
S.C.:R.
SUPREME COURT REPORTS
551
that the local laws were in force and the Administrator was subject to them in his dealings with private
property, under the general superintendence .of the
Regional Commissioner. All this is beside the point
and does not truly interpret the act of State which had
taken place. The essence of an act of State is the
exercise of sovereign power and that is done arbitrarily, on principles either outside or paramount to
the municipal law. The fact that the sovereign allows
the inhabitants to retain their old laws and customs
does not make the sovereign subject to them and all
rights under those laws are held at the pleasure of the
sovereign. It is only when the sovereign can be said
to have purported to act within the laws that the act
of State ceases to afford a plea in defence. Before that
stage is reached, government may be influenced by the
existing laws and rights and obligations but is not
governed or bound by them. See Campbell v. Hall (1),
Ruding v. Smith (2) two cases of conquest and E. I. Co.
v. Syed Ali (3). See also Mayne Criminal Law of India
(4th Edition) II pp. 119, 120 where the law is
summarised. There is nothing to prove that the
Dominion had expressly or even tacitly recognized the
old rights, the .burden of proving which lay upon the
respondent Secretary of State for India v. Bai Rajbai (4)
and Vaje.singh's case (5) (op. cit.).
In this view. of the matter it is not necessary to
determine whether the Na.wab could or did confer title
on the donee in respect of this property. Equally
fruitless will be an inquiry into the powers of the
Na.wab to resume or derogate from, his grants and
whether similar or identical powers were inherited by
the Dominion Government or its a.gents. The action
of the Dominion Government being a.n act of State, the
act of the Administrator, however arbitrary, was not
justiciable in the municipal courts and the suit was
not well founded.
The appeal is, ther~fore, allowed. The respondent's
suit shall be dismissed with costs. throughout.
Appeal allowed.
(l) l Comp. ~04; 98 E.R. 104.5·
(3) 7 M.I.A. 555 at 578.
(2) 2 Hag. Con. 3g4; 161 E.R. 774.
14}L.R. 4z I.A. :z29.
(5) (1924) L.R. 51 J.A. 357, 36o.
I959
The State of
Saurashtra
v.
l'.f emon H aji
Ismail Haji
Hidayatullah ].