# RAJ RAJENDRA MALOJIRAO SHITOLE v. THE STATE OF MADHYA BHARAT. RAJA BALBHADRA SINGH

- **Citation:** [1954] 1 S.C.R. 748
- **Court:** Supreme Court of India
- **Decided:** 1952-12-04
- **Case number:** CIVIL APPELLATE JuR1smcTION : Civil Appeals . Nos. 4 and 6 of 1953
- **Bench:** MEHR CHAND MAHAJAN c. J, Mukherjea, S. R. DAs, VIVIAN BosE, Ghul.\M Hasan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raj-rajendra-malojirao-shitole-v-the-state-of-madhya-bharat-raja-balbhadra-singh-337
- **Pages:** 13

## Headnote

Constitution of India, art. 385-Madhya Bharat Abolition of
fagirs Act (XXVJII of 1951)-Whether void
as not passed by a
validly constituted legislature.
The decision of the
Madhya Bharat High Court declaring
section 4 (1) (g) and sub-els. (iv) and (v) of cl. 4 of Schedule 1 of
Madhya Bharat Abolition
of Jagirs
Act
(XXVIII of 1951)
as
illegal and
inoperative
was
not
questioned by either
of
the
· parties.
It was however, contended that the impugned Act
(XXVIII
of 1951)
was void as it was not passed by a validly constituted
legislature within the meaning of the covenant entered into by
the Rulers
of Madhya Bharat as
the
provisions of cl. I ( c) of
Schedule IV of thC covenant for the election of 20 members were
not complied with.
Held, that as the Madhya Bharat Legislative
Assembly
was
actually functioning on the 26th janflary, 1950, the validity of the
Acts passed by it could not be questioned in view of art. 385 of
the Constitution irrespective of the fact whether it had. been properly constituted in accordance
with
the
terms
of the covenant
or not.
•
Scope of articles 379, 382 and 385 discussed.
CIVIL
APPELLATE
JuR1smcTION :
Civil
Appeals .
Nos. 4 and 6 of 1953.
Appeals
under article
132(1)
of the Constitution
of India from the j'udgment and Order dated the 4th
December, 1952, of the High Court of Judicature of the
State of Madhya Bharat at Gwalior in Civil Miscellaneous Cases Nos. 614 of 1951 and 1 of 1952.
P. R. Das (B. Sen, with him) for the appellant in
C.A. No. 4 of 1953.
S.C.R.
SUPREME COURT REPORTS
749
Rameshwar Nath for the appellant in C. A. No. 6
of 1953.
M. C. Setalvad, Attorney-General for India,
and
K. A. Chitale, Advocate-General of Madhya Bharat
(Shiv Dayal, with them) for the respondent.
1954. February 2. The Judgment of the Court was
delivered by
MAHAJAN C. J.-These appeals preferred on behalf
of three zamindars of the State of Madhya Bharat
against the judgment of the High Court of Judicature
of that State dated the 4th Decqnber, 1952, raise common constitutional questions and can be disposed of
by one judgment.
The State also preferred cross appeals
against
the same
judgment.
During
the
pendency of these appeals, two petitions under article
32 of the Constitution of India were also made to this
court to obtain the same relief as was claimed by the
appellants in their
respective
appeals.
During
the
course of the arguments, the counsel appearing for the
appellant. in Civil Appeal No. 5 of 1953 asked leave to
withdraw the appeal. This was granted and the appeal was dismissed as having been withdrawn. Petitions
Nos. 116 and 117 of 1953 preferred under article 32
were also withdrawn and were accordingly dismissed.
Civil Appeals Nos. 4 and 6 of 1953 were argued before
us and this judgment concerns them alone.
The appellant in Civil Appeal No. 4 of 1953, Raj
Rajendra Maloji Rao Shitole, is the proprietor of extensive landed properties in the State of Madhya Bharat
comprising 260 villages under different Sanads granted
to his ancestors by the Rulers of Gwalior from time to
time. It was alleged by him that his income from
these properties was in the sum of Rs. 2,61,637 and
that the
State of
Madhya
l)harat,
under purported
exercise of its powers under section 3 of the Madhya
Bharat Abolition of Jagirs Act, was about to issue a
Notification for resumption of all his land. By a petition dated the 7th December, 1951,
preferred to the
High Court he asked for a mandamus to restrain the
State from issuing any Notification under section 3(1)
of the Act in respect of his properties and from
1954
Rqj RaJtndra
Malojirao Shitole
v.
The State of
Madhya Bharat.
Mahajan C. J.
•954
Raj Rajendra
Maiojir® Skitole
v.
The Stateof
Madhya Bharat.
Mahajan C.J.
750
SUPREME COURT REPORTS
[1954}
interfering with rights in the said property. The appellant in Civil Appeal No. 6 of 1953 is another Jagirdar of
the same State. He preferred a similar petition to the
High Court praying for the same relief. These twe>
petitions, along with a number of

## Text

1954
February 2.
748
SUPREME COURT REPORTS
[1954]
RAJ RAJENDRA MALOJIRAO SHITOLE
v.
THE STATE OF MADHYA BHARAT.
RAJA BALBHADRA SINGH
v.
THE STATE OF MADHYA BHARAT.
[MEHR CHAND
MAHAJAN c. J., MUKHERJEA,
S. R. DAs, VIVIAN BosE and GHUL.\M HASAN JJ.]
Constitution of India, art. 385-Madhya Bharat Abolition of
fagirs Act (XXVJII of 1951)-Whether void
as not passed by a
validly constituted legislature.
The decision of the
Madhya Bharat High Court declaring
section 4 (1) (g) and sub-els. (iv) and (v) of cl. 4 of Schedule 1 of
Madhya Bharat Abolition
of Jagirs
Act
(XXVIII of 1951)
as
illegal and
inoperative
was
not
questioned by either
of
the
· parties.
It was however, contended that the impugned Act
(XXVIII
of 1951)
was void as it was not passed by a validly constituted
legislature within the meaning of the covenant entered into by
the Rulers
of Madhya Bharat as
the
provisions of cl. I ( c) of
Schedule IV of thC covenant for the election of 20 members were
not complied with.
Held, that as the Madhya Bharat Legislative
Assembly
was
actually functioning on the 26th janflary, 1950, the validity of the
Acts passed by it could not be questioned in view of art. 385 of
the Constitution irrespective of the fact whether it had. been properly constituted in accordance
with
the
terms
of the covenant
or not.
•
Scope of articles 379, 382 and 385 discussed.
CIVIL
APPELLATE
JuR1smcTION :
Civil
Appeals .
Nos. 4 and 6 of 1953.
Appeals
under article
132(1)
of the Constitution
of India from the j'udgment and Order dated the 4th
December, 1952, of the High Court of Judicature of the
State of Madhya Bharat at Gwalior in Civil Miscellaneous Cases Nos. 614 of 1951 and 1 of 1952.
P. R. Das (B. Sen, with him) for the appellant in
C.A. No. 4 of 1953.
S.C.R.
SUPREME COURT REPORTS
749
Rameshwar Nath for the appellant in C. A. No. 6
of 1953.
M. C. Setalvad, Attorney-General for India,
and
K. A. Chitale, Advocate-General of Madhya Bharat
(Shiv Dayal, with them) for the respondent.
1954. February 2. The Judgment of the Court was
delivered by
MAHAJAN C. J.-These appeals preferred on behalf
of three zamindars of the State of Madhya Bharat
against the judgment of the High Court of Judicature
of that State dated the 4th Decqnber, 1952, raise common constitutional questions and can be disposed of
by one judgment.
The State also preferred cross appeals
against
the same
judgment.
During
the
pendency of these appeals, two petitions under article
32 of the Constitution of India were also made to this
court to obtain the same relief as was claimed by the
appellants in their
respective
appeals.
During
the
course of the arguments, the counsel appearing for the
appellant. in Civil Appeal No. 5 of 1953 asked leave to
withdraw the appeal. This was granted and the appeal was dismissed as having been withdrawn. Petitions
Nos. 116 and 117 of 1953 preferred under article 32
were also withdrawn and were accordingly dismissed.
Civil Appeals Nos. 4 and 6 of 1953 were argued before
us and this judgment concerns them alone.
The appellant in Civil Appeal No. 4 of 1953, Raj
Rajendra Maloji Rao Shitole, is the proprietor of extensive landed properties in the State of Madhya Bharat
comprising 260 villages under different Sanads granted
to his ancestors by the Rulers of Gwalior from time to
time. It was alleged by him that his income from
these properties was in the sum of Rs. 2,61,637 and
that the
State of
Madhya
l)harat,
under purported
exercise of its powers under section 3 of the Madhya
Bharat Abolition of Jagirs Act, was about to issue a
Notification for resumption of all his land. By a petition dated the 7th December, 1951,
preferred to the
High Court he asked for a mandamus to restrain the
State from issuing any Notification under section 3(1)
of the Act in respect of his properties and from
1954
Rqj RaJtndra
Malojirao Shitole
v.
The State of
Madhya Bharat.
Mahajan C. J.
•954
Raj Rajendra
Maiojir® Skitole
v.
The Stateof
Madhya Bharat.
Mahajan C.J.
750
SUPREME COURT REPORTS
[1954}
interfering with rights in the said property. The appellant in Civil Appeal No. 6 of 1953 is another Jagirdar of
the same State. He preferred a similar petition to the
High Court praying for the same relief. These twe>
petitions, along with a number of other petitions preferred under article 226 of the Constitution challenging the validity of the Madhya Bharat Abolition of
Jagirs Act and praying for the issue of a mandamus
restraining the
State from
issuing the
Notification
under section 3 ( 1) of the said Act, were heard by a
Bench of three Judges
of the High Court of Madhya
Bharat. The .court, by a majority judgment, declared
that the Madhya Bharat Abolition of Jagirs Act No.
XXVIII of
1951
was
valid except
as
regards
section 4(1) (g) and sub-clauses (iv) and (v) of clause 4 of
Schedule I which were held illegal and inoperative. A
writ of mandamus was directed to be issued to the State
Government directing it not to give effect to the pmvisions
of the
impugned Act stated above. Leave
te>
appeal to the Supreme Court was granted to the parties
and in pursuance of the
leave the appellants
preferred the appeal above mentioned and
the State
preferred the two cross appeals. The cross appeals
were not pressed by the learned Attorney-General and
nothing more need be said about them. They are
therefore dismissed with costs.
As regards Civil Appeals Nos. 4 and 6 of 1953, the
facts are : That in April, 1948, after the partition of
India, and the formation of two Dominions, India and
Pakistan, the Rulers of the States of Gwalior, Indore
and certain other States in Central India being convinced that the welfare of the people of that region
could best be secured by the establishment of a State
compnsmg
the
territories
of their respective Stares
with a common Executive, Legislature
and
Judiciarv
entered into an agreement for the formation of a
United State of Gwalior,
Indore and Malwa (Madhya
Bharat). It was resolved by them to entrust to a
Constituent Assembly consisting of elected representatives of the
people the drawing up of a democratic
Constitution for the State within the framework of the
Constitution of India to which the Rulers of these
S.C.R.
SUPREME COURT REPORTS
751
States had acceded. The covenant entered into by
these Rulers was published on the 7th October, 1948.
The Rulers agreed, under article III 'of the covenant,
to elect a Rajpramukh of the United State, and· by
article VI the Ruler of
each
Covenanting
State
agreed to make over the administration of the State to
the Rajpramukh not later than the first day of July,
1948, and it was agreed that thereupon all rights,
authority
and
jurisdiction
belonging to
the
Ruler
which appertain, or are incidental to, the Government
of the Covenanting States shall vest in the United
State and were thereafter to be exercisable only as
provided by the covenant or by the Constitution to be
framed
thereunder.
By article X it was agreed that
as soon as practicable a Constituent Assembly, for the
purpose of framing a Constitution for the United State
within the framework of the covenant and the Constitution of India, was to be formed and clause (2) of
the said article provided :
"The Rajpramukh shall constitute not later than
the first day of August, 1948, an interim Legislative
Assembly for the United State in the manner indicated
in Schedule IV."
Schedule IV laid down the following procedure for
the constitution of the Legislative Assembly :
"I. The Legislative Assembly shall consist of-
( a) forty members elected
by the members of
the Gwalior Legislative Assembly ;
(b) fifteen members elected by the members of
the Indore Legislative Assembly ; and
( c) twenty members elected
by
an
electoral
college to be constituted by the Rajpramukh m consultation with the
Government of
India
to represent
Covenanting States other than Gwalior and Indore.
2. The election shall be by proportional
representation by means of the single transferable vote.
3. The Rajpramukh may make rules for carrying
into effect the foregoing provisions of this Schedule and
securing the due constitution of the interim Legislative
As!'embly."
1954
Raj Rajendra
Malojirao Shitoll"
v.
The State of
Madhya Bharat.
Mahajan C.J.
1954
Raj Rajendra
Malojirao Shitole
v.
The State of
Jo..[adhva B!1arat.
_,
lv.!aha)an C.J.
752
SUPREME COURT REPORTS
l1954]
In pursuance of this covenant the Rajpramukh took
the oath of office on the 28th of May,
1948. In the
meantime
40 members representing the
Indore
group
we're elected to the interim legislative assembly on the
8th and 9th of May, 1948, respectively. As
regards
the election of 20 members
that had to be elected
by
an electoral college, what happened was this. The
Ministry of States, Government of India, on the 5th
July,
1948,
informed the Rajpramukh that there were
many practical
difficulties in
setting
up an electoral
college
consisting
of
elected
representatives
of
the
various
States,
because in many of the smaller States
there were no elected bodies
of any kind.
After ·considering the various difficulties it was suggested
to the
Rajpramukh that the twenty seats may be allocated
between the different States in a certain manner mentioned in the latter and out of these, fourteen may be
allotted to the nominees of the Praja Manda! and the
remaining
six may be nominated by the
Rajpramukh
himself. This suggestion was modified by a letter of
the 19th of November, 1948, and it was fina:ly agreed
upon that the Madhya Bharat Provincial
Congress
Committee
may be asked to elect six persons to
represent the
smaller
States
in the
Madhya
Bharat
interim legislative assembly. This suggestion was not
exactly in accord with what had been indicated in
clause
1 (c)
of Schedule IV. These representatives
were elected in the manner suggested in the two letters,
on the 19th October, 1948, and they were declared to
be validly elected in terms of the covenant.
On the 30th of October, 1948, the Rajpramukh
promulgated
an
Ordinance
entitled
"The
Interim
Legislative
Assembly
Ordinance
Samvat
2005'',
Ordinance No. 18 of
19"r8.
In the preamble to the
Ordinance it was
d~clared that in accordance with the
prov1s10ns
of
the covenant the legislative assembly
had
already
been
duly constituted.
The various
sections of the Ordinance provided for the working of
the
interim
legislative
essembly, i.e., the manner in
which it could be summoned ai1d dissolved or prorogued, how its President and Deputy President were to
be elected and how it was to exercise the power of
S.C.R.
SUPREME COURT REPORTS
753
Voting and what number of members would constitute
the quorum. On
the 6th . of December, 1948, the
Ordinance was repealed and Act XXIII of 1949 took
its place. The legislative
assembly
thus
constituted
'was actual! y functioning on the 26th of January, 1950,
\v hen the Constitution of India came into force. In the
meantime,
by subsequent covenants, the Rulers of the
Covenanting States
had agreed to accept the Constitution of India as the Constitution of the United State
of Madhya Bharat and had abandoned their covenant
of forming a separate Constituent Assembly for framing a Constitution for the United State of Madhya
Bharat. After the coming into force . of the Constitution of India
the
interim
legislative
assembly
constituted
by
the
Rajpramukh
and
which
was
functioning on the 26th of January,
1950, continued
to function till some time in the year 1952 when new
elections
took
place
and a legislative
assembly
in
conformity with the provisions of the Constitution ot
India was duly constituted.
On the 30th of November, 1949, the Government of
the State of Madhya Bharat introduced a Bill entitled
the
"Madhya Bharat
Abolition of J agirs Bill'
before
the
interim legislative assembly
and the Bill was
passed into an Act on the 28th of August, 1951, and
having been reserved for the consideration of the
President received
his assent on the 27th November,
1951. It was published in the Madhya Bharat Gazette
Extraordinary on the 7th of December, 1951. The said
Act, by section 3, provided for a date to be appointed
by the Government by notification for resumption of
all jagir lands in the State and by section 4 it provided
that as from such a date, the right,
title
and interest
of every jagirdar and of every other person claiming
through him in his jagir lands including forests, trees,
fisheries,
wells, tanks, ponds,
wat~r-channels, ferries,
pathways, village-sites, huts, bazars and mela grounds
and mines and minerals whether being worked or not,
·shall stand resumed to the State free from all encumbrances. The Act also provided a scheme for assessment of compensation
in
respect
of
iag1rs
thus
resumed.
1954
Raj Rajtndra
MaWjirao Shitol11
v.
The State of
Madhya Bharat.
Mahajan C. J1
1954
Raj Rajen«ra
Malojirao Shitole
v.
Thi State of
Madhya Bharat.
Mahajan C. J.
754
SUPREME COURT REPORTS
[1954)
The appellants contested the validity of this law
on a number of grounds, and, inter alia, on the
following :-
(I) That the
scrcalled
legislature which passed
the Act was not a legislature within the meaning of
the covenant entered into by the Rulers of Gwalior,
Indore and certain other States in Central India for
the formation of the United State of Gwalior, Indore
and Malwa (Madhya Bharat) or within the meaning of
Schedule IV of the said covenant.
(2) That the legislature of Madhya Bharat was
not
competent
to
enact
the
said Act and the said
acquisition or resumption of jagirs was not for a public
purpose and there was no provision for payment of
compensation as understood in law, the compensation
provided for being wholly illusory and the Act was a
fraud on the Constitution.
Before the High Court, Mr. P. R. Das who appeared
for
most of the petitioners, confined his arguments
to.
some of the grounds mentioned in clause (2) above.
His first contention that the impugned Act was passed
by a legislature not validly constituted,
he reserved
for arguing before this court as
the Madhya Bharat
High Court by a Full Bench decision in Shree Ram
Dubey v. The State of Madhya Bharat('),
had already
repelled that contention. The two points argued by
him before the High Court were :
(I) That there was no public purpose behind the
acquisition for the
resumption of jagir lands and
therefore the Act was unconstitutional and illegal.
(2) That· some· of the provisions of the impugned
Act were ultra vires in so far as they constituted a
fraud on the Constitution.
Both these
points which
were urged before the High Court were not argued
before us by the learned counsel. The point that there
was no public purpose behind the acquisition was
abandoned because it was concluded by the decision of
this court in the Orissa Zamindari appeals, K. C. Gajapati Narayan Deo and Others v. The State of Orissa(•).
[I] A.LR. 1952 M.B. 57-178.
[2] A.LR. 1s53 S.C. 375; [1954] S.C.R. 1.
S.C.R.
SUPREME COURT REPORTS
755
As regards the
second point, as
already indicated,
three provisions of the impugned Act had been declared
void by the High Court :ind Mr. Das contented him-
. self by accepting that decision. The State Government
had impugned the correctness of the decision of the
High Court declaring these three provisions of the Act
to be void but it also did not press that point. The
result of these concessions in this court is that the
arguments in the two appeals were limited to the first
point urged in the petition, namely,
whether the
impugned Act was passed by a Legislature not validly
constituted under the covenant entered into by the
Rulers of Madhya Bharat.
Mr. P. R. Das contended that as the Interim Legislative
Assembly
was not constituted according to the
provisions of Schedule IV of the covenant it was a
body of usurpers and therefore any laws made by it
were wholly void and of no effect whatsoever.
It was
urged that the two bodies, viz., Praja Manda! and the
Provincial Congress Committee who, in two separate
divisions, elected fourteen and six members, did not
constitute an electoral college to fulfil the requiremer1t
of clause 1 ( c) of Schedule IV, and the members elected
could not be said to have been elected in the manner
prescribed by the Schedule and that the Rajpramukh
and the Government of India, in the absence of an
·amending covenant, had no power -to vary the provisions of the Schedule. It was said that the object of
clause 1 ( c) of Schedule Iv' was that the election of
20 members should be by an electoral college constituted
by the Rajpramukh in consultation· with the Government of India to represent the Covenanting States
other than Gwalior and Indore and that the election by
the Praja Manda! and the Congress Committee of 14 and
6 members was in clear breach of the terms of the covenant and that in this manner no representation was give11
to the minorities and full effect was not given to the rule
that the election should be by proprortional ·representation by means of single transferable vote. The learned
Attorney-General met these contentions by urging, (1)
that the question was not open having regard to the
provisions
of article 385 of the Constitution of India
1954
•
Raj Rajendra
• Malojirao Shitolt'
v.
The State of
Madhya Bharat;_
Mahajan C.J.
1954
Raj Rajendra
Malujirao Shitole -
v.
T!te StateZof
Maah;·a Bharat.
·Maf..ajan C. J.
756
SUPREME COURT REPORTS
[1954]
(2) that the election of 20 members representing the
eighteen States took place in literal compliance of the
covenant,
(3) that in any ~vent there was substantial
compliance with the covenant, and lastly ( 4) that the
declarations made in the
Ordinance
by
the
Rajpramukh and the provisions contained in the Ordinance were conclusive and were accepted by all the
States concerned and could no longer be challenged.
After a careful consideration of the respective arguments addressed by Mr. P. R. Das and the learned
Attorney-General we have reached the conclusion that
it is not necessary to consider in detail all the points
discussed by the learned counsel, as in our judgment
the question seems to be concluded by the provisions
of article 385 of the Constitution of India. There is no
gainsaying the fact that the election of 20 members to
represent the 18 States was not made strictly in the
manner indicated in Schedule IV of the covenant, but
it also cannot be disputed, and in fact was not disputed before the High Court, that the Legislative
Assembly which passed the impugned Act was on the
26th of January, 1950, in spite of its defective
constitution, in fact functioning as the Legislature of the
State of Madhya Bharat. It had been declared
to
have come into existence by an Ordinance promulgated by the Rajpramukh and its factual existence is
apparent from the laws that it made subsequent to its
formation.
Part XXI of the Constitution of India deals with
"Temporary
and Transitional Provisions".
About
two
dozen articles in this Part concern themselves with
the solution of the problems of their interval in between
the repeal of the Government of India Act and the
coming into being of bodies and authoritie!S formed by
the Constitution.
Until
the
House
or
Houses of
Legislature or bodies and authorities formed oy the
Constitution could be duly formed it was necessary to
say with certain definiteness as to what bodies or
authorities
would
exercise
and perform
the
duties
conferred by the different provisions of the Constitution in the meantime. When a silent revolution was
taking
place
and
Princely
kingdoms
were fast
..
S.C.R.
SUPREME COURT REPORTS
757
disappearing
and a new democratic Constitution was
being set up and a provision had to be made for the
interval between the switch-over from one · Constitu-
. tion to another, there was hardly any time to enquire
and consider whether the bodies or authorities or House
or Houses of Legislature formed under the old Constitutions which were being scrapped had been formed in
strict compliance with the provisions of those Constitutions
or
whether
there
were
any
defects in their.
formation.
The Constitution-makers
therefore
took
notice
of
their
factual
existence and gave th ~m
recogmt10n under the Constitution and invested the
bodies that were actually functioning as such, whether
regularly or irregularly, with the authority to exercise
the powers and perform the duties conferred by the
provisions of the Constitution. That is clearly the
scheme of all the articles mentioned in Part XXI of
the Constitution. Particular reference may be made
to articles 379, 382 and to article 385 which specifically governs the present case. Article 379 is in these.
terms:
" ( 1) Until both Houses of Parliament have
been.
duly constituted and summoned to meet for the first
session under the provisions of this Constitution, the.
body functioning as the Constituent Assembly of the
Dominion of India immediately before the' commence-.
ment ·of this Constitution shall be
the provisional
Parliament and shall exercise all the powers and perform all the duties conferred by the provisions of this.
Constitution on Parliament.
Explanation.-For
the purposes of
this clause,_
the Constituent Assembly of the Dominion of India
includes-
'
(i) the members chosen to represent any State or.
other territory for which representation is provided
under clause (2), and
(ii) the members chosen to fill casual vacancies m
the said Assembly."
The provision made in this article in unambiguous
terms makes· the body fw1ctionlng as
the Constitu'
ent
Assembly,
whether
constituted
perfectly
or--
1~54Raj 'Rajendra.
Malojirao Shitol~,
v .
The Slate of
Madhya Bhatai;
Mahajan.C. J.
1954
Raj Rajendra
Malojirao Shitole
v.
Tht Slate of
Madh]:l Bharat.
Mahl1jan C. ].
758
SUPREME COURT REPORTS
[1954]
imperfectly and whatever its membership on the date
immediately before the commencement of the Constitution, as the provisional Parliament and vests it with
all the functions and duties conferred by the provisions
of the Constitution
on the Parliament. The
President was given power under the provisions of this
article to add members to this body to give representation to certain States who
were
not
previously
represented, and it was specifically prescribed that
if
there are any vacancies then the vacancies could be
filled
up and the members
returned to fill these
vacancies will be considered members of the provisional Parliament. These specific provisions are indicative of
the
fact
that the Constitution-makers, in
enacting this article, took notice of the factual existence of certain bodies without concerning themselves
with the question whether they had been validly
constituted under the Constitution that brought them
into being. Article 382 of the Constitution is similarly
worded. It provides that until the House or Houses
of the Legislature of each State specified in Part A of
the First Schedule has or have been duly constituted
and summoned to meet for the first session under the
provisions of this Constitution, the House or Houses
of the Le,gislature
of the
corresponding Province
functioning immediately before the commencement of
this Constitution shall exercise the powers and perform
the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of
such State. Article 385 is in exact conformity with
the two earlier articles. It provides that-
"Until the House or Houses of the Legislature of
a State specified in Part B of the First Schedule has or
have been duly constituted and summoned to meet for
the first session under the provisions of this Constitution, the body or authority functioning immediately
before the commencement of this Constitution as the
Legislature of the corresponding Indian State shall
exercise the powers and perform the duties conferred
by the provisions of this Constitution on the House or
Houses of the Legislature of the State so specified."
:S.G.R.
SUPREME COURT REPORTS
759
The whole intent and purpose of these articles was
to give recognition to those bodies or authorities or
House or Houses of Legislature ·which were actually
functioning before the 26th of January, 1950, and to
invest them with the powers conferred by the provisions
of
this Constitution.
The Constitution-makers
wanted to indicate the arrangements made by them
for the interval with certain amount of definiteness in
·order to avoid any disputes during the interim period
as to who the body or authority was, to exercise the
powers conferred by the provisions of the Constitution.
They therefore chose the formula that whichever body
or authority or House or Houses of Legislature was
actu:illy
functioning immediately
before
the
commencement of the Constitution would be the body oc
authority or the House that would exercise the powers
and perform the duties conferred by the provisions of
this Constitution on the House, body or authority
specified in the Constitution. They did not take any
risk on this question and the bodies actually functioning were, like persona designata, invested with powers
·conferred by the- Constitution. That being the scheme
of this Part and that being also the clear and unambiguous language of article 385 it follows that the
Madhya
Bharat
Interim
Legislative
Assembly that
was actually functioning on the 26th January, 1950,
was invested by the Constitution of India with powers
·conferred by the provisions of the Constitution, irrespective of the fact whether it had been properly
·constituted in accordance
with the
term~ of the
covenant or not. The inquiry into this question thus
became barred by adopting
this procedure. Such a
procedure was fully justified and was founded upon
·considerations of policy and necessity' for the protection of the public and individuals whose interests may
·be affected thereby. It is manifest that endless confusion would have resulted if the Constitution had not
:adopted that formula and had not barred an inquiry
into all questions as to the original formation of such
bodies by giving validity and recognition · to those
bodies or authorities as were actually functioning on
the 26th of January, 1950. Not only did it give
1 954
·Rai Rajendra
Malojirao Shitolt
v.
Tlze State rf
Madh_va Bharat.
Mahajan C. J,
1954
Raj Rqjendra
Malojirao Shitole
v.
The State of
Madhya Bharat.
Mahajan C.J.
760
SUPREME COURT REPORTS
[1954]
validity and recognition to those bodies which were in
fact functioning then but it also invested these designated bodies and authorities with powers conferred by
the provisions of the Constitution itself. That being
our view as to the true meaning and intent of the
language employed in article 385 of the Constitution
it follows that the contention raised by Mr. P. R. Das
as to the defective formation of the Interim Legislative
Assembly of Madhya
Bharat has
no validity.
Even if that body was not formed in strict compliance
with the provisions indicated in Schedule IV of the
covenant its defective formation does not affect the
constitutionality
of
the
impugned
statute.
The
impugned statute was passed in the year 1951 after
the Constitution of India had given recognition to, and
conferred powers on, the Assembly under article 385
of the Constitution. When it made this law it was
exercising its powers under the Constitution of India
and not under the covenant which brought it int<>
existence.
The
result therefore
is
that the
only
contention that Mr. P. R. Das argued before us cannot
be sustained and it must be held that it is not well
founded.
For the reasons given above we see no force in these
two appeals and
they are therefore dismissed with
co its.
Appeals dismissed.
Agent for the appellant in C. A. No. 4 : I. N. Shroff.
Agent for the appellant in C. A. No. 6 : Rajinder
Narain.
Agent for the respondent : R. H. Dhcb11r ..