# State of Seraikel/a and Others v. Union of India

- **Citation:** [1951] 1 S.C.R. 474
- **Court:** Supreme Court of India
- **Decided:** 1950-01-26
- **Bench:** Suit No. 7 of 1950) t SHRI HAluLAL KANIA C. J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-seraikel-a-and-others-v-union-of-india-99
- **Pages:** 51

## Headnote

PA"rANJ ALI
SAS TRI,
MEH1l
CHAND MAHAJAN, S. R. DAS and VIVIAN BosE JJ.]
Constitution of India, Arts. 363 (! ), 374 (2)-Indian StatesAccession to India under Instruments of Accession-Orders treatjng States as having merged in lnd~a-Suit to declare orders ultra
S.C.R.
SUPREME COURT REPORTS
475
vires and enforce rights under Instrument of Accession-Suits filed
in
Federal
Court
before 26th
/anuary 1950-/urisdiction
of
Supreme Court to try such suits-Scope of Arts. 363 (1) and 374 (2).
Article 374 (2) of the
Constitution of India provides that all
suits, appeals and proceedings pending in the Federal Court at
the commencement of this Constitution shall stand removed
to
the Supreme Court and the Supreme Court shall
have jurisdiction to hear and determine the same.
Article 363 ( l) provides
that notwithstanding anything in this Constitution,
neither the
Supreme Court nor any other Court shall have jurisdiction in any
dispute arising out of any
provision· of a treaty, agreement
or
similar instrument entered into or executed before the commencement of this Constitution by any Ruler of an Indian State.
Certain States had acceded to the Dominion of India under
Instruments of Accession in August 1947.
They were treated as
having merged in the
Province of Bihar and
were administered
as a part of that Province under Orders issued under the Extra
Provincial Jurisdiction Act, 1947, and · s. 290-A of the
Government of
India
_Act,
1935
(as amended
by
the
Constituent
Assembly Act of 1949). The
States instituted
suits
in
the
Federal Court of India before the 26th January, 1950, for a declaration that the various
Orders under which the
States came to be
administered as a part of
Bihar and the laws under which those
Orders were ·made were
ultra vires and void and the Province
of Bihar had accordingly no authority to carry on the administ -
Tation of the States. The suits stood transferred to the
Supreme
Court of India under Art. 374 (2) of the new Constitution:
Held,
per
KANIA
C. J.,
PATANJALI SASTRI J. and
BosE J.
(MAHAJAN
).
dissenting).-That even
though
the
suits were
instituted before the new Constitution came into force and under
Art. 374 (2) they stood removed to the Supreme Court, nevertheless the jurisdiction of the Supreme Court under Art. 374 (2) was
controlled by Art. 363 ( l) of the
Constitution in view
of the .
opening words
of the latter
namely, "notwithstanding anything
in this
Constitution". As the suits were really to enforce the
plaintiffs rights under their
Instruments of
Accession and the
dispute between the parties really arose out of those instruments,
under Art. 363 (1) the Supreme
Court had no jurisdiction to
hear the suits.
This view did not involve giving
any
retrospective effect to Art. 361 (3).
MAHAJAN J.
(contra.)-Art. 363
takes away the jurisdiction of the Supreme Court on the subjects
mentioned therein if suits about
them
were instituted after the
26th January,
1950,
or
disputes concerning them
arise
after
that date, while Art. 374 { 12) empowers the Supreme Court to
hear and determine suits
which were pending in the
Federal
Court on the
26th January,
1950, and
which that court
was
competent to hear and determine.
There is no confilct between
1951
State of
Seraikel/a
and Others.
v.
Union of India
and Another.
1951
Sl!Jleef
&raikella
and 01/urs
v.
l!nion qf India
""" Malltlr.
Ka11iaC.J.
476
SUPREME COURT REPORTS
[I951J
these articles, and the
Supreme Court had jurisdiction to hear
the suit.
DAs J.-As the plaintiff States, by virtue of the States Merger
(Governor's Provinces) Order, 1949, were immediately before the
commencement of the new Constitution being administered as if
they
formed
part of the
Provinces of
Bihar or Orissa the
territories of Bihar and
Orissa included the territories of
the
plaintiff States under
Art. I of the
Constitution read
with the
third paragraph of
Part A of the First Schedule. These States
consequently ceased to be States so far as the new Constitution
is concerned, they had no legal exis

## Text

_Characters 0–39,106 of 110,563. This is a partial read: ask again with offset=39106 for what follows._

1951
.April 6.
474
SUPREME COURT REPORTS
[1951]
STATE OF SERAIKELLA
fl.
UNION OF INDIA AND ANOTHER
(Suit No. 1 of 1950)
STATE OF DHENKANAL
fl.
UNION OF INDIA AND ANOTHER
(Suit No. 2 of 1950)
STATE OF BAUDH
fl.
UNION OF INDIA AND ANOTHER
(Suit No. 3 of 1950)
STATE OF TIGIRIA
fl.
UNION OF INDIA AND ANOTHER
(Suit No. 4 of 1950)
STATE OF ATHGARH
fl.
UNION OF INDIA AND ANOTHER
(Suit No. 5 of 1950)
STA TE OF BARAMBA
fl.
UNION OF INDIA AND ANOTHER
(Suit No. 6 of 1950)
STA TE OF NARSINGPUR
"·
UNION OF INDIA AND ANOTHER
(Suit No. 7 of 1950)
t SHRI HAluLAL KANIA C. J .,
PA"rANJ ALI
SAS TRI,
MEH1l
CHAND MAHAJAN, S. R. DAS and VIVIAN BosE JJ.]
Constitution of India, Arts. 363 (! ), 374 (2)-Indian StatesAccession to India under Instruments of Accession-Orders treatjng States as having merged in lnd~a-Suit to declare orders ultra
S.C.R.
SUPREME COURT REPORTS
475
vires and enforce rights under Instrument of Accession-Suits filed
in
Federal
Court
before 26th
/anuary 1950-/urisdiction
of
Supreme Court to try such suits-Scope of Arts. 363 (1) and 374 (2).
Article 374 (2) of the
Constitution of India provides that all
suits, appeals and proceedings pending in the Federal Court at
the commencement of this Constitution shall stand removed
to
the Supreme Court and the Supreme Court shall
have jurisdiction to hear and determine the same.
Article 363 ( l) provides
that notwithstanding anything in this Constitution,
neither the
Supreme Court nor any other Court shall have jurisdiction in any
dispute arising out of any
provision· of a treaty, agreement
or
similar instrument entered into or executed before the commencement of this Constitution by any Ruler of an Indian State.
Certain States had acceded to the Dominion of India under
Instruments of Accession in August 1947.
They were treated as
having merged in the
Province of Bihar and
were administered
as a part of that Province under Orders issued under the Extra
Provincial Jurisdiction Act, 1947, and · s. 290-A of the
Government of
India
_Act,
1935
(as amended
by
the
Constituent
Assembly Act of 1949). The
States instituted
suits
in
the
Federal Court of India before the 26th January, 1950, for a declaration that the various
Orders under which the
States came to be
administered as a part of
Bihar and the laws under which those
Orders were ·made were
ultra vires and void and the Province
of Bihar had accordingly no authority to carry on the administ -
Tation of the States. The suits stood transferred to the
Supreme
Court of India under Art. 374 (2) of the new Constitution:
Held,
per
KANIA
C. J.,
PATANJALI SASTRI J. and
BosE J.
(MAHAJAN
).
dissenting).-That even
though
the
suits were
instituted before the new Constitution came into force and under
Art. 374 (2) they stood removed to the Supreme Court, nevertheless the jurisdiction of the Supreme Court under Art. 374 (2) was
controlled by Art. 363 ( l) of the
Constitution in view
of the .
opening words
of the latter
namely, "notwithstanding anything
in this
Constitution". As the suits were really to enforce the
plaintiffs rights under their
Instruments of
Accession and the
dispute between the parties really arose out of those instruments,
under Art. 363 (1) the Supreme
Court had no jurisdiction to
hear the suits.
This view did not involve giving
any
retrospective effect to Art. 361 (3).
MAHAJAN J.
(contra.)-Art. 363
takes away the jurisdiction of the Supreme Court on the subjects
mentioned therein if suits about
them
were instituted after the
26th January,
1950,
or
disputes concerning them
arise
after
that date, while Art. 374 { 12) empowers the Supreme Court to
hear and determine suits
which were pending in the
Federal
Court on the
26th January,
1950, and
which that court
was
competent to hear and determine.
There is no confilct between
1951
State of
Seraikel/a
and Others.
v.
Union of India
and Another.
1951
Sl!Jleef
&raikella
and 01/urs
v.
l!nion qf India
""" Malltlr.
Ka11iaC.J.
476
SUPREME COURT REPORTS
[I951J
these articles, and the
Supreme Court had jurisdiction to hear
the suit.
DAs J.-As the plaintiff States, by virtue of the States Merger
(Governor's Provinces) Order, 1949, were immediately before the
commencement of the new Constitution being administered as if
they
formed
part of the
Provinces of
Bihar or Orissa the
territories of Bihar and
Orissa included the territories of
the
plaintiff States under
Art. I of the
Constitution read
with the
third paragraph of
Part A of the First Schedule. These States
consequently ceased to be States so far as the new Constitution
is concerned, they had no legal existence as acceding
States, and
could not therefore be recognised as such
States by
Courts,
as
Courts arc bound by the
Constitution and cannot question
the
validity of any of its provisions.
The suits must
therefore
be
regarded as .having. abated.
0IUGJNAL JuIUSDICTION.
Suits Nos. 1 to 7 of 1950.
The facts are stated in detail in the judgment of
KANIA c J.
N. C. Chatterjee (A. N. Roy Choudhry, with him) for
the plaintiffs in suits Nos. 1, 3, and 6.
Dr. N. C. Sen Gupta (A. N. Roy Choudhry, with him)
for the plaintiffs in suits Nos. 2, 4, 5, and 7.
M. C. Setalvad Attorney-General for India (G, N. /oshi
with him) for the defendants in all the suits.
1951. April 6. The following judgments were delivered:-
KANIA C J .-This is a suit filed on the 15th of
January, 1950, under the Original
Jurisdiction
of the
Federal Court as it was functioning before the
Constitution of India came into force on the 26th January,
1950. The State of Seraikella was a State in Orissa
and its Ruler was Raja Aditya Pratap Singh Dea. On
the 16th August, 1947, the plaintiff State acceded to
the Dominion of India by virtue of an Instrument of
Accession executed by its
Ruler and accepted
by the
Governor-General
of India under section 6 of the
Government of
India Act, 1935. After reciting that
under the Indian
Independence Act, 1947, the
Dominion of India was set up and that under the Government of
India Act, 1935, as adapted, it provided that
an Indian State may accede to the
Dominion of India
S.C.R.
SUPREME COURT REPORTS
477
by an Instrument of Accession, the Instrument stated
that the
Raja acceded to the Dominion of
India and
that he
accepted
that the · matters specified in the
Schedule to
the
Instrument
were the matters
with
respect to which the Dominion
Legislature may make
laws for the
State. The three
principal heads
mentioned in
the
Schedule
to
that
Instrument were
Defence,
External Affairs and
Communications,
with
particulars detailed under each of those
heads. The
Instrument expressly provides that
by
executing the
same the Ruler shall not be deemed to be committed
to the acceptance of any future
Constitution of
India
or to fetter his discretion
to
enter into arrangements
with the
Government of
India under any such future
,Constitution. It further expressly provides that nothing in the
Instrument affects the
continuance
of the
sovereignty in and over the
State, or save as provided
by or under the
Instrument,
the
exercise
of
any
powers, authority and rights so far enjoyed by him as
Ruler of the State or the validity of any law then in
force in the State. It also provides that the terms
of
the Instrument of
Accession are not to be varied by
any amendment of the
Government of India Act or of
the Indian
Independence
Act, · 1947
unless
such
amendment is accepted by the
Ruler or by an
Instrument supplementary to the said
Instrument.
It was
denied
in the
plaint that
any such supplementary
instrument was executed by the
Ruler and ·no amendment of the aforesaid
Acts has been accepted
by him
or the plaintiff State. A Standstill Agreement was also
executed by the
Ruler under which it was agreed that
matters of common
concern
and
specified
in the
Schedule to the
Agreement would continue
between
the Dominion of India and the said
State until new
agreements were made in that behalf.
On the 15th December, 1947, an agreement is alleged
to have been
entered into
between
the
GovernorGeneral of India and the
Ruler of the plaintiff State.
'By that document the Raja
ceded to the
Dominion
Government full and exclusive authority,
jurisdiction
and powers for and in relation to the
governance of
4-62 s. a. India/59.
1951
Stale of
Ser~l111
llllli Ot/reri
Y.
Union of lndi11
and A.not/rer.
EaniaC.].
1951
Stat• of
S1rafk,lla
and Others
v.
Union of l•di4
*1ld Anolillr.
KaniaC.].
478
SUPREME COURT REPORTS
[1951]
the State and agreed to transfer the administration
of
the State to the Dominion Government on the 1st of
January, 1948, Article 2 contained a provision for the
Privy Purse of the
Raja and it is contended
by the
plaintiff that when the
Raja signed the document the
figure
in this
clause
had been
left -blank. Under
article 3 of that agreement, it was provided that
the
Raja would be entitled to the full ownership, use and
enjoyment of all private properties belonging to him
on the date of the agreement and that by the 1st of
Janliaty, 1948, the Raja will furnish to the
Dominion
Government an inventory of all
immovable propertieS;
securities and cash held by him as
such
private property. Under article 4, the personal privileges enjoyed
by the Raja and the members of his family mentioned .
therein had to continue.
On the 24th of December, 1947, an Act to provide
for the exercise of certain extra-provincial
Jurisdiction
of the Central Government (Act XLVII of 1947) was
passed. Under section 3 of that Act it was provided
that it shall be lawful for the
Central Government to
exercise extra-provincial
jurisdiction in such
manner
as it thinks fit and the Central
Government may delegate any such
jurisdiction as aforesaid to any
officer
or authority in such manner and to such extent as it
thinks fit. Under section 4 it was provided
that
the
Central
Government may by notification in the official
Gazette make such orders as may seem to it expedient
for the effective exercise of any extra-provincial
jurisdiction of the
Central
Government.
A
notification
under' section 4 of that Act was thereafter issued by the
Central
Government delegating, under
section 3, the
power£ contained in that Act to the Province of Orissa.
On the 18th of May, 1948, that
notification was cancelled and the powers in respect of
the two specified
States including the plaintiff
State were delegated to
the
Province of Bihar. On the same day the Government of Bihar passed an order called "The
Seraikella
and
Kharaswan
States
Order"
providing
for
the
administration of the
two
States. On the
5th of
January, l!m, the
Legislative
Assembly of India,
s.c.l\.
SUPREME COURT REPORTS
which was also functioning as the Constituent Assembly, passed the
Constituent
Assembly Act
I of 1949
and added section 290-A to the Government of
India
Act, 1935. That section runs as follows :-
"Administration of certain
Acceding
States as a
Chief Commissioner's
Province or as part of a Governor's or Chief Commissioner's Province-
(1) Where full and exclusive
authority,
jurisdiction and powers for and in relation to the
Government
of any Indian State or of any group of such States are
for the time being exercisable by the Dominion Government, the Governor-General may be Order direct
(a) that the State or the group of States shall be
administered in all respects as if the
State or the group
of States were a Chief Commissioner's Province; or
(b) that the State or the group of.
States shall ·be
administered in all respects as if the State or the group
of States formed part of a Governor's or a Chief Commissioner's Province specified in the Order :
Provided that if any Order made under clause (b) of
this sub-section affects a
Governor's
Province, the
Governor-General shall
before
making such
Order,
ascertain the views of the Government of that Province
both with respect to the proposal to make the
Order
and with respect
to
the
provisions to
be
inserted
therein.
(2) Upon the issue of an
Order under clause (a)
of sub-section ( 1) of this section, all the
provisions
of
this Act applicable to the
Chief
Commissioner's Province of Delhi shall apply to the State or the group of
States in respect of which the Order is made.
(3) The
Governor-General
may
in
making an
Order under sub-section (1) of this
section give such
supplemental,
incidental and
consequential directions
(including directions as to representation in the Legislature) as he may deem necessary.
( 4) In this
section, reference to a State shall
include reference to a part of a State."
On the 27th of July, 1949, the
Governor-General of
India promulgated an Order called the States
Merger
1951
Stat1 of
Seraikella
and Others
y,
Uuion of India
anti Ano th#.
Kania C. J•
1951
State of
Seraikella
a.1d Oiht1J
...
Union oj"lndia
and AMlh.,,
Kania C. J.
480
SUPREME COURT REPORTS
[1951}
(Governors' Provinces) Order of 1949. The result of
that was that the plaintiff State is claimed to have
merged in the Province of Bihar.
The plaintiff State contends that the Government of
Orissa wrongfully and illegally purp9rted to administer
the plaintiff State by virtue of the .Notification of the
23rd of December, 1947, under Act XLVII of 1947. It
is claimed that the Act was and is ultra vires and ot no
effect and not
binding
on the plaintiff State. The
alleged agreement of the 15th of
December, 1947, is
contended to be void for want of consideration and is
inoperative. Indeed it is contended that as the figure
was left blank there was no agreement at all. It is
contended that on the 18th May, 1948,
without the
consent and approval of the plaintiff State or its .Ruler,
the Province of
Bihar wrongfully and illegally took
over the administration of the
State and passed the
Seraikella and Kharsawan Administration
Order, 1948.
In paragraph 10 of the plaint it is contended that the
Dominion of India had no authority to go beyond the
Instrument of Accession, had no authority to delegate
powers to the
Province of
Bihar to administer the
plaintiff State and the said
Order, in any
event, is
illegal and inoperative as it went beyond the ambit of
. the Extra
Provincial Jurisdiction Act, 1947. As regards
the Order issued by the Governor-General on the 27th
of July, 1949, it is contended that he had no authoritii
or power to promulgate the
Order
and the
State
Merger Order of 1949 purporting to be passed under
section 290-A of the Government of India Act, 1935, is
also void. The enactment of the Constituent Assembly
Act I of 1949 is contended to be ultra vires and illegal.
That Act is further challenged on the ground that it
was enacted
without the
assent
of the
GovernorGeneral of India. It is contended in
the plaint
that
the defendants, viz., the Union of India and the
State
of Bihar, deny and are interested in denying the existence or entity of the plaintiff State and in disputing
the rights, privileges, powers and prerogatives of its
Ruler as well as the right to the private properties as
set out in the annexure. The States Merger
Order of
s.e.R.
SlJPREME COU.RT REPORTS
481
l949 is .contended to be an abuse -of power and autho..
rity and a fraud on the
Government
of
India. Act,
1935, and the Indian
Independence
Act, 1947, It is
contended that the Government. of India or the Constituent
Assembly had no ~uthprity to pass any legisla-
. tion on ·a matter not specified in the
Schedule to the
Instrument of Accession. In paragraph 19 of the plaint
it is contended
that the dispute between
the parties
comprised and involyed questions on which the existence or extent of legal rights depends and the plaintiff
State is a party to the same. These disputes concern
the intc;rpretation of the
Government of
India
Act,
1935, and/or of an order made thereunder J.nd/or the
interpretation of the
Indian Independence · Act and/or
an order made thereunder and/or the .extent of. authority vested in the
Dominion by virtue of the
Instrument of
Accession of the plaintiff .State. The prayers
are: (a)
Interpretation of the relevant
provisions of
the
Government of India Act, 1935, the
Indian Independence Act, 1947, and the States Merger Order, 1949.
(b) For a declaration that the Dominion Government
had no authority to assume any power or jurisdiction
beyond the matters
specified in the
Instrument of
Accession and had no authority to delegate · any · power
in relation to the plaintiff . State to the
Provincial
Government of Bihara ( c)
For a declaration
tha~ Act
XL VII of 1947, the Constituent Assembly Act I .of 1949,
section 290-A of the
Government of India Act, 1935,
as adapted, and the
States
Merger
Order, 1949, are
ultra vires, illegal and .inoperative in so far as they are
made applicable
to the
plaintiff
~tate and Orders
made thereunder as also actions taken or purported to
be taken thereunder; (d)
For a declaration that the
Province of. Bihar had no authority or jurisdiction to
carry on tlie administration ·of the plaintiff State and
tMt. the alleged merger was illegal and unauthorized :
( e) For a declaration as to the rights of th.e parties and
as to the extent of the authority of the
Domini9n of
India over and in respect of the plaintiff State; (f) For
a declaration that· the. plaintiff State retained its entitv
and territ6ri:il . integrify; that its administration' should
1951
State of
~
Seraike/la
and Others
v.
Union of India
mrd Another .
Kania C.J.
1951
State of
Seraiktlla
muJ Others
v.
Union of India
and Another.
KaniaC.].
482
SUPREME COURT REPORTS
(1951}
in any event be carried on in the name of its Ruler and
that his rights and privileges as set
out in annexure
'C' and his private properties as set out
in annexure
'D' remain unaffected ; and (g) For a declaration that
the Province of Bihar had no authority or jurisdiction
over the plaintiff State and that it should not interfere
in any way with the
State or the
sovereignty of its
Ruler.
Six other suits by other States of the former Eastern
Agency were filed also before the Constitution of
India
came into force on the 26th of
January,
1950, on the
same lines, except that in four of them the agreement
similar to the agreement of the 15th
December, 1947,
is admitted to have been executed by the Ruler and is
admitted to be binding on the plaintiff.
The material part of section 6 of the Government of
India
Act, 1935, which provides for the accession of
Indian States, runs as follows :-
6. Accession of Indian States.-(1) An
Indian State
shall be deemed to have acceded to the
Dominion .if
the
Governor-General has signified his acceptance of
an Instrument of
Accession
executed by the
Ruler
thereof whereby the Ruler on behalf of the State :-
(a) declares that he accedes to the
Dominion with
the intent that the
Governor-General, the
Dominion
Legislature, the
Federal Court and any other Dominion
authority established for the purposes of the
Dominion
shall, by virtue of his
Instrument of
Accession, but,
subject always to the terms thereof, and for the
purposes only of the Dominion, exercise in relation to the
State such functions as may be vested in
them by
order under this Act; and
(b) assumes the obligation of ensuring that due
effect is given within the
State to the provisions of
this Act so far as they are applicable therein by virtue
of the Instrument of Accession.
(!) An Instrument of Accession shall specify the
matters which the
Ruler accepts as matters with respect to which the Dominion Legislature may make laws
for the State, and the limitations, if any, to which the
sm.
SUPREME COURT REPORTS
481
power of the Dom.inion
Legislature to ~e laws for
the State, and the exercise of the
cxecuttve authority
of the
:Dominion in the
State, are respectively
to be
subject.
(3) A Ruler may, by a ,supplementary
Instrument
eYl"CUted by him and accepted by the
Governor-General,
vary the
Instrument of
Accession
of his
State by
extending the functions which by virtue of that
Instru•
ment are exercisable by any
Dom.inion
authority in
:relation to his State.
•
•
•
•
(5) In this Act a State which has acceded to the
Dominion is referred to as an
Acceding State and the
Instrument by virtue of which a
State has so acceded
construed
together
with any supplementary
Instrument executed under this section, is referred to as the
Instrument of
Accession of that State .... "
A supplementary · Instrument executed
under subsection (3) by the Ruler and accepted by the GovernorGeneral is, by virtue of sub-section (5), therefore to be
considered a part of the
Instrument of
Accession of
1
that State. The supplementary
Instruments signed
by
the four States only bring within the scope of discussion those supplementary
Instruments on the. footing
that they were a part of the Instrument of Accession.
Written statements have been filed on behalf of the
defendants
contesting the
contentions raised
in the
, plaint. There are several contentions in respect of the
jurisdiction of the
Court. Several
contentions
cover
pure issues of law and some raise issues of fact in respect of the document of 15th
December, 1947. The
parties agreed on the issues and they
have been filed
in Court. It was further agreed between the parties
that issues 1, 3, 4, 5, 6 and 7 may be tried as preliminary issues and we have heard counsel on those issues
fully. The-first issue is in these terms:
"Whether, having regard to the
subject-matter of
the suit and the provisions contained in article 363 (1)
of the
Constitution of India, this Hon'ble Court has
jurisdiction to entertain the suit."
i95t
S1a1; ef.
Seraiklili&
tiild Olhits
v.
Union of IlliiilJ
iJlltl Anolfltf.
KaniaC.j.
1951
Sime of
Seraikella
...i 011im
v.
U~n oflndi•
aad AnotM?..
.K4~UJ ~~.3.
'
484
StlJP.llEME COURT REOORTS
[1'951]
In the view I take of this issue
I do not think it
necessary to discuss the other preliminary issues raised
on the question of jurisdiction. For determining this
issue, it may be noted that the Federal
Court, prior to
the 26th of
January, 1950, had original
jurisdiction
in respect of matters covered· by section
204 of
the
Gove.rnment of India Act.
Under that
section, that
Court had jurisdiction in any dispute between a
State
and the Dominion if and in so far as the dispute involved any question (whether of law or fact)
on which
existence or extent of a legal right depended, provided
.that the said jurisdiction did not extend to a dispute
to which a ·State was a party unless
the dispute
was
covered by clause (a) (i) of the
Proviso, which runs as
follows:-
"Provided that the said jurisdiction
shall not extend to-
·
(a) a dispute to which a State is a party, unless the
dispute-
(i) concerns th<" "interp.retation of this
Act or of an
Order in
Council made thereunder before the date of
the establishment of the Dominion, or of an order made
thereunder on or after that date, or the interpretation
of ·the Indian Indepepdence Act, 1947, or of any order
made thereunder, or the extent of the
legislative or
executive authority vested in the
Dominion by virtue
of the Instrument of Accession of that State ; or .. "
The rest of the section is not material. Section 204
(2) provided that the Federal Court in the exercise of
its original jurisdiction shall not pronounce any
judgment other
than a declaratory
judgment. The suit
having been filed
prior to the 26th of
January, 1950,
the suit stOOd
transferred to this
Court under article
374 (2) of the
Constitution of India. That article. runs
as follows i-
"374. (2) All suits, appeals, and . proceedings, civil
or criminal, pending in the Federal
Court at the commencement of this Constitution shall stand removed
to
the Supreme Court, and the Supreme Court shall have
jurisdiction to. hear and determine· the
same, and the
-
S.G.R.
SUPREME COURT REPORTS.
485
judgments and orders of the Federal Court delivered or
made before the. commencement of this
Constitution
shall have the . same force and effect as if they had been
·d( livered or made by the Supreme Court."
Article 131 of the Constitution deals with the original jurisdiction of the Supreme
Court and its material
portion runs as follows :-
"Subject to the provisions of ·this
Constitution, the
Supreme Court shall .... have
original
jurisdiction in
:any dispute ....
(b) between the Government of India :ind any State
Qr States on one side arid one or more other
States on
the other ....
if and in so far as the dispute involves any question
(whether of law or fact) on which the existence of
a
1egal right depends : ·
Provided that the said jurisdiction shall not extend
to (i) a dispute to which a
State specified in Part B of
the
First Schedule is a party if the dispute arises out ·
-of any provision of a
treaty,
agreement,
covenant,
engagement, sanad or other similar instrumel).t
which
was entered into or executed before the ·commencement
-of·· this Constitution and has or has been continued in
<Operation after such commencement."
The, States specified in Part B of the
First Schedule
<lo not mention any ,of the plaintiff States. ..Article 363
of the Constjtution of India runs as follows :-
"363. (1) Notwithstanding anything in this Constitution but subject
to the
provisions of article
143
neither the
Supreme
Court nor any other court shall
have jurisdiction in
any dispute
arising out
of any
provision of a treaty, agreement, covenant, engagement,
sanad or other similar instrument which
was entered
into or executed before the commencement
of this
Constitution by any
:Ruler of an
Indian
State and to
which the Government of· the Dominion of India or
any. of its predecessor
Governments was a party and
which has or has been continued in
operation
after
such commencement, or in any dispute in respect of
any right w:ruing under or any liability
or obligation
1951
State of
Seraikel/a
and Others
v.
Union of India
and Another.
Kania C.J
1951
State ef
Seraiktlla
and OtlurJ
v,
Uniot• of India
and Anot/rn.
Kania C.J.
SUPREME COURT REPORTS
[1951J
arising out of any of the provisions of this
Constitution relating to any such
treaty, agreement, convenant,
engagement, sanad or other similar instrument.
(2) In this article-
( a) 'Indian State' means any territory recognised
before the commencement of this
Constitution. by
His
Majesty or the Government of the Dominion of India
as being such a State ; and
(b) 'Ruler' includes the Prince, Chief or other person.
recognised before· such commencement by
His
Majesty
or the Government of the Dominion of
India as theRuler of any Indian State."
The first question arising for
consideration is the.
true interpretation of article 374 (2) of the
Constitution of India. It was argued that the
Federal Court
had jurisdiction to try the suit as framed before the
Constitution of
India
came
into operation. Under
article 347 (2) that suit stood removed to the Supreme·
Court and the question of jurisdiction to try this suit
at the present stage has to be determined only having
regard to- the jurisdiction of the Federal Court, because
the trial of the suit was
transferred to the
Supreme
Court under this article. It was argued that if there
was any limitation on the jurisdiction of the
SQpreme
Court to hear such a suit, (if instituted in it under its
original jurisdiction), such limitation is not relevant to
be considered in respect of suits
which stood transferred to. the Supreme Court under article 374 (2).
In
other words, in respect of such suits the
Supreme
Court had a wider jurisdiction as compared
with thejurisdiction of the
Federal Coutt, if its jurisdiction is
construed as limited by virtue of the different
article.~
of the
Constitution. In this connection, some reliance
was placed on the use of the word 'jurisdiction' . as;
· connected with the
Supreme
Colll't in article 374 (2).
In my opinion, this argument is unsound. Article 374
is in the Part dealing with temporary and transitional
provmons.
In article 374 (1) it is provided that the
Judges of the
Federal
Court holding office ~ore tht!
commencement of the . Constitution,
unless they have
S.C.R.
SuPREMl!: COURT REPORTS
487
. elected otherwise, become Judges of the Supreme Court.
Article 374 (2),
in my opinion,
similarly
provides,
firstly, for the removal .of all suits, appeals
and proceedings, civil or
criminal,
pending in the
Federal
Court to the
Supreme
Court and, secondly,
provides
that the
Supreme Court shall have jurisdiction to hear
and determine these matters. 'lt may be noticed that
in this clause provision is made not only in respect of
suits but of civil and criminal appeals and also of other
pending
procee-Oings.
By
providing
only
for the
removal of these matters to the
Supreme
Court, there
will remain a lacuna, if it was not
furth~r stated that
after such removal the
Supreme Court shall have jurisdiction to try the
matters. It is from that point
of
view only that, in
my
opinion,
the
Constitution
states that the Supreme Court shall have jurisdiction
to hear and determine the same.
I think it
is not
correct to read those words as giving to the Supreme
Court an extended jurisdiction in these matters.
Two
stages have therefore to be
considered in determining the operation of this clause : (1) whether the suits,
· appeals or proceedings, which were pending before the
Federal Court, were within the jurisdiction of the Fede-.
ral
Court ; and (2) whether on removal the
Supreme
Court has jurisdiction to hear and determine the same
having regard to all the provisions of the
Constitution
relating to the jurisdiction of the
Supreme
Court. It
must be n,,oticed that the
Supreme
Court was a new
Court established by the Constitution of India.
It had
no existence before that. The jurisdiction of that Court
has therefore to be ascertained by
considering all the
relevant articles of the
Constitution of India. It is in
that light that the provisions of article 363 have to be
read and interpreted.
Before doing so I think it is essential to bear in mind
the political ba~kground. Prior to August, 1947, British
India, as it was then described,
was governed under
the Government of India Act, 1935'
Indian States, as
they were then described, were independent
States not
governed by the
Government of
India.
They
were
under the suzerainty of His Majesty the · King and their
1951
State of
Straikel/a
and Others
·V.
Union °of India.
and Another.
Kania C.J.
1951
Statt of
Straik11lla
and Olhers
v
Onion of India
and Anothtr.
.KaniaC.J.
488
SUPREME COURT REPORTS
[1951]
administration was controlled under the advice of. the
Political
Department of the
Government of India, on
the footing that the
King . was the
Sovereign and had
the right to exercise suzerain powers over those States.
On the passing of the
Indian Independence
Act, 1947,
from the 15th
August, 1947,
the
British
Parliament
and the King ceased to have power to make any laws
for India or rnake any
changes in its
Constitution.
These were left to India.
As regards the
Indian States,
while provision continued in the
Governm.ent of India
Act for the
Rulers signing instruments
of accession,
no suzerain rights were given to the Dominion of India
by the
Indian
Independence Act.
If, therefore, the
Dominion of
India or any of these
States committed
acts of aggression or territorial trespass, there was no
law, the enforcement of which could give either party
a relief and there was no court also which
could give
such a relief; Section 204 of the
Government of India
Act also did not provide any relief to any of these
Indian States unless they
signed an
Instrument of
Accession.
With the passing of the
Constitution of
India, India became a Sovereign Independent Republic.
If that Dominion or Republic committed any .acts of
aggression towards a neighbouring Indian State (as it
is convenient to. describe under the circumstances) the
Supreme Court has no jurisdiction to give relief to the
Indian . State.
A.s noticed above, its
jurisdiction under
article 131 is limited and even in respect of a
State
specified in Part B of the
First
Schedule · if a dispute
arises
out of any provision of a treaty,
agreement,
covenant, engagement, sanad or other similar instrument, it w.ill not ·be .entertained by this
Court if the
conditions of the proviso apply to the same. It is with
this background that we have to read article 363 of
the
Constitution.
The opening words of that article in terms override
all provisions of the· Constitution, but are made subject
only to the provisiQO.s of article 143 which enabks the
President to consult · the
Supreme
Court on matters
referred to it. These all embracing opening
words of
article .363 thcrefo~ clearly override the
operation
of
•
S.C.R.
SUPREME COURT REPORTS
489
article 374 (2) also. The result is that article 363 is the
controlling .article over article · 374(2) also. The jurisdiction of the' Supreme Court having been stated in
articles
131-136, article 363 provides
that
notwithstanding
anything
contained
in . those articles and
other articles of the
Constitution, neither the Supreme
Court nor any other
court will have jurisdiction in
any dispute arising out of any provision of a treaty,
agreement,
covenant, engagement,
sanad
or
other
similar instrument which was
entered into or executed
before the
commencement
of this
Constitution and
which has or has been
continued in
operation
after
such commencement. If . therefore
the dispute arises
in respect of a document of that description and if such
document had been executed Qefore the
Constitution
by a
Ruler and which was or had continued in operation after
such
commencement, this
Court has
no
jurisdiction to
determine such
issue.
It was
argued
that as the agreement
had to be in operation
after
the
commencement of the
Constitution, no
dispute
can arise in respect of ·such document before the commencemenr of the
Constitution and therefore
as the
dispute in the present case had arisen before the
commencement . of the
Constitution, article
363 had no
operat~on. In my opinion, this is not a correct reading
of article 363 (1). The time factor is related only to
the document in question and not the dispute. It is
provided that such. document should have been executed
before the
Constitution came into force and has to be
in operation after the
Constitution, but the dispute,
which is the subject-matter of the litigation, may arise
before or. after.
It was argued that the article is
prospective and
not retrospective. Therefore it onlv covers the
cases
which are filed in the
Supreme cOurt after the Constitution comes into force and does not affect suits filed in
the Federal Court before the Constitution of India came
into operation. In my opinion this argument is based
on a mistaken meaning given to the words "prospective" and "retrospective". It is· not disputed that the
Constitution is prospective.
The
question
however
1951
Stale of
Seraikella
and Othns
v.
u .. ion of l1zdit&
and Another.
KaniaC.J.
1951
'Stal< ef
Setail¢Ua
and Others
v.
Onion ef India
and .Another.
.KaniaC.J.
SUPREME COURT REPORTS
[1951]
is that the
Supreme Court having been created by the
Constitution itself, on the day the
Court proceeds to
determine the matter, what
according to the
Constitution of India, is the jurisdiction of this
Court. This
approach
doc~ not make the provision retrospective.
In this connection, the similarity in language of articles 363 (1) and 131 proviso (i) may be noted. Considered in that way, the only question which remains
for decision is whether on the structure of the plaint,
the dispute raised by the suit arises out of the provision
of a treaty, agreement,
covenant,
engagement,
sanad
or any other similar instrument. I have already noticed
above that the dispute in respect of the
agreement of
the 15th December, 1947, is immaterial for the present
discussion. If the plaintiff repudiates that agreement
he is seeking to enforce his rights after ignoring the
same. If the plaintiff (as noticed in four of the suits)
relies on this agreement, it
becomes a part of the
Instrument of. Accession under
section 6 (5) of the
Government of India Act, 1935. and the dispute will
still have to be considered having regard to the terms
of the two documents, viz., the original Instrument of
Accession and the
supplementary
Instrument. The
question thus resolves itself into an analysis of
the
plaint and to find out what the plaintiff seeks . to get
by his suit. Apart from the fact that in prayers (f) and
(g) of his plaint he seeks to enforce his rights under the
Agreement of the 15th December, 1947, it appears clear
that the whole ambit of the suit is to enforce his Instrument of
Accession. The plaintiff contends firstly that
it had signed the
Instrument of
Accession through its
Ruler. The State next complains that, acting beyond
the powers given over under the
Instrument of Accession, the Dominion of India and the State of Bihar are
trespassing wrongfully on its legislative ;md executive
functions, that the Dominion of India and the State of
Bihar are making laws which they have no power to
make having regard to the
Instrument of
Accession,
and arc wrongfully interfering with the administration
of the State beyond the rights given to them
under
the
Instrument of
Accession.
The whole plaint i$
S.C.R.
SUPREME COURT REPORTS
491
nothing else except the claim to enforce the plaintiff's
.right uhder the Instrument of Accession. The dispute
therefore in my opinion clearly is in respect of this
Instrument of
Accession
and is covered
by article
363 (1) of the
Constitution of India. The question of
the validity of the different enactments and
orders is
also based on the rights claimed under the Instrument
of Accession so far as the plaintiff is concerned. On
the side of the defendants, the position is that
they
admit the
Instrument of Accession and they do not
daim that they
are
exercising
the disputed rights
under that
Instrument. Their contention is that the
Agreement of the 15th of December, 1947, was validly
signed and is binding and enforceable against the plaintiff.
The defendants contend
that
their
action in
passing the disputed, legislation
and orders
and the
action in taking over the administration are all based
on that
Agreement of 15th
December, 1947. If the
plaintiff contends that that
Agreement is not binding
on it, it cannot enforce its rights under
the original
jurisdiction of the
Court.
If the plaintiff has a grievance and a right to a relief
which
the
defendants
contend it has not, the forum to seek redress is not the
Supreme Court exercising its original
jurisdiction
on
the transfer of the suit from the Federal Court. According to the
defendants, the situation in those
circumstances
will be of
a
Sovereign
Independent
State
trespassing on the territories, powers
and
privileges
of another neighbouring independent State.
To redress
a grievance arising out of such action on the part of
the defendants, the
Supreme Court is not the forum to
give relief. The
issue is answered in the negative
. th
'
·costs costs m
e cause.
VMAN BosE J.-1 agree.
PATANJALI
SASTRI J.-This is
a batch
of
suits
brought by plaintiffs claiming to be
Acceding
States
for certain declaratory reliefs in regard to the allep;ed
wrongful merger of their
respective territories
in the
territories of the
adjoining
Provinces
of
Bihar and
Orissa. The
Dominion of India was impleaded as the
1951
State of
Seraikella
and Others
v,
Union of India
and Anot"'r.
KaniaC.