# SUPHEME COUHT REPORTS [1959] Supp. PREM NATH KAUL v. THE STATE OF JAMM:U & KASHMilt

- **Citation:** [1959] Supp. 2 S.C.R. 270
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeal No. 152 of 1955
- **Bench:** S. R. Das, s. K. DAS, P. B. Gajendragadkab, K. N. Wanchoo, M. Hidayatullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supheme-couht-reports-1959-supp-prem-nath-kaul-v-the-state-of-jamm-u-kashmilt-1644
- **Pages:** 31

## Headnote

Landed Estate, Abolition of-Validity of enactment-Legislative
Competency of Yuvaraj Karan Singh-Jamm1' and Kashmir Big
Landed Estate Abolition Act, XV II of 2007.
This appeal challenged the validity of the Jammu and
Kashmir Big Landed Estate Abolition Act, XVII of 2007 which
was enacted by Yuvaraj Karan Singh on October 17, 1950, in
exercise of the powers vested in hirn bys. 5 of the Jammu and
Kashmir Constitution Act 14 of 1996 (1930) and the final proclamation issued by Maharaja Hari Singh on June 20, 1949, by which
he entrusted all his po\vers and function to the Yuvaraj.
The
object of the Act was to improve agricultural production by
abolishing big landed estates and transferring land to the actual
tillers of the soil.
The suit out of which the present appeal
arises was brought by the appellant in a representative capacity
for a declaration that the Act was void, inoperative and ultra
vires and that he \Vas entitled to retain peaceful possession of
his lands.
Both the trial Court.as also the High Court in appeal
found against him and dismissed the suit. Hence this appeal by
special leave.
The validity of the Act was challenged mainly on the
ground that Yuvaraj Karan Singh had no authority to promulgate the Act. It was contended that (r) when Maharaja Hari
Singh conveyed his powers to the Yuvaraj by his proclamation
of June 20, 1949, he was himself a constitutional monarch and
could convey no higher powers, (2) the said proclamation could
not confer on the Yuvaraj the powers ,specified therein, (3) the
powers of the Yuvaraj were substantially limited by his own
proclamation issued on November 25, 1949, by which he sought
to make applicable to his State the Constitution of India, that
was soon to be adopted by its Constituent Assembly, in so far as
it was applicable, (4) as a result of the application of certain
specified Articles, including Art. 370 of the Constitution of India
to the State of Jammu Kashmir, the Yuvaraj became a constitutional monarch without any legislative authority or powers and
(5) the decision of the Constituent Assembly of the State not to
pay compensation \Vas invalid since the Assembly itself was not
properly constituted.
Held, that Yuvaraj Karan Singh, when he promulgated
the Act, had the power to do so and its validity· was beyond
question.
(2) S.C.R.
SUPREME COUR'.1' REPORTS
271
It was indisputable that prior to the passing of the Independr959
ence Act, 1947, Maharaja Hari s;ngh like his predecessors, was
an absolute monarch so far as the internal administration of his Piem Nath Kaul
State was concerned. Section 3 of the Regulation l of 1991
v.
(1934) issued by the Maharaja not only preserved all his preTh"4State of .
existing powers but also provided that his inherent right to Jammu & Kash1mr
make any regulation, proclamation or ordinance would remain
unaffected. The Constitution Act 14 of 1996 (1939) promulgated
by him did not alter the position. Sections 4 and 5 of that Act
preserved all the powers that he had under s. 3 of the Regulation
l of 1991 and s. 72 preserved his inherent powers so that he
remained the same absolute monarch as he was before.
With the lapse of British paramountcy on the passing of the
Independence Act, 1947, the Maharaja continued to be the same
absolute monarch, subject to the agreements saved by the
proviso to s. 7 of the Act, and in the eyes of international law
could conceivably claim the status of an independent sovereign.
It was unreasonable to suggest that the provisions of the
Instrument of Accession signed by the Maharaja on October 25,
1947, affected his sovereignty, in view of cl. 6 thereof, which
expressly recognised its continuance in and over his State.
There was no substance in the argument that as a result of
his proclamation issued on March 5, 1948, which replaced the
emergency administration by a popular interim Government
headed by Sheik Mohammad Abdullah and constituted a Council
of Ministers who were to function as a cabinet, the Maharaja
became a

## Text

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1 959
J'.1arch 2.
270
SUPHEME COUHT REPORTS [1959] Supp.
PREM NATH KAUL
v.
THE STATE OF JAMM:U & KASHMilt
(S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAB,
K. N. WANCHOO and M. HIDAYATULLAH, JJ.)
Landed Estate, Abolition of-Validity of enactment-Legislative
Competency of Yuvaraj Karan Singh-Jamm1' and Kashmir Big
Landed Estate Abolition Act, XV II of 2007.
This appeal challenged the validity of the Jammu and
Kashmir Big Landed Estate Abolition Act, XVII of 2007 which
was enacted by Yuvaraj Karan Singh on October 17, 1950, in
exercise of the powers vested in hirn bys. 5 of the Jammu and
Kashmir Constitution Act 14 of 1996 (1930) and the final proclamation issued by Maharaja Hari Singh on June 20, 1949, by which
he entrusted all his po\vers and function to the Yuvaraj.
The
object of the Act was to improve agricultural production by
abolishing big landed estates and transferring land to the actual
tillers of the soil.
The suit out of which the present appeal
arises was brought by the appellant in a representative capacity
for a declaration that the Act was void, inoperative and ultra
vires and that he \Vas entitled to retain peaceful possession of
his lands.
Both the trial Court.as also the High Court in appeal
found against him and dismissed the suit. Hence this appeal by
special leave.
The validity of the Act was challenged mainly on the
ground that Yuvaraj Karan Singh had no authority to promulgate the Act. It was contended that (r) when Maharaja Hari
Singh conveyed his powers to the Yuvaraj by his proclamation
of June 20, 1949, he was himself a constitutional monarch and
could convey no higher powers, (2) the said proclamation could
not confer on the Yuvaraj the powers ,specified therein, (3) the
powers of the Yuvaraj were substantially limited by his own
proclamation issued on November 25, 1949, by which he sought
to make applicable to his State the Constitution of India, that
was soon to be adopted by its Constituent Assembly, in so far as
it was applicable, (4) as a result of the application of certain
specified Articles, including Art. 370 of the Constitution of India
to the State of Jammu Kashmir, the Yuvaraj became a constitutional monarch without any legislative authority or powers and
(5) the decision of the Constituent Assembly of the State not to
pay compensation \Vas invalid since the Assembly itself was not
properly constituted.
Held, that Yuvaraj Karan Singh, when he promulgated
the Act, had the power to do so and its validity· was beyond
question.
(2) S.C.R.
SUPREME COUR'.1' REPORTS
271
It was indisputable that prior to the passing of the Independr959
ence Act, 1947, Maharaja Hari s;ngh like his predecessors, was
an absolute monarch so far as the internal administration of his Piem Nath Kaul
State was concerned. Section 3 of the Regulation l of 1991
v.
(1934) issued by the Maharaja not only preserved all his preTh"4State of .
existing powers but also provided that his inherent right to Jammu & Kash1mr
make any regulation, proclamation or ordinance would remain
unaffected. The Constitution Act 14 of 1996 (1939) promulgated
by him did not alter the position. Sections 4 and 5 of that Act
preserved all the powers that he had under s. 3 of the Regulation
l of 1991 and s. 72 preserved his inherent powers so that he
remained the same absolute monarch as he was before.
With the lapse of British paramountcy on the passing of the
Independence Act, 1947, the Maharaja continued to be the same
absolute monarch, subject to the agreements saved by the
proviso to s. 7 of the Act, and in the eyes of international law
could conceivably claim the status of an independent sovereign.
It was unreasonable to suggest that the provisions of the
Instrument of Accession signed by the Maharaja on October 25,
1947, affected his sovereignty, in view of cl. 6 thereof, which
expressly recognised its continuance in and over his State.
There was no substance in the argument that as a result of
his proclamation issued on March 5, 1948, which replaced the
emergency administration by a popular interim Government
headed by Sheik Mohammad Abdullah and constituted a Council
of Ministers who were to function as a cabinet, the Maharaja
became a constitutional monarch. The cabinet had still to function under the Constitution Act 14 of 1996 (1939) under the overriding powers of the Maharaja.
When the Maharaja on June 20, 1949, therefore, issued the
proclamation authorising the Yuvaraj to exercise all his powers,
although for a temporary period, it placed the Yuvaraj in the
same position as his father till the proclamation was revoked.
The Maharaja was himself an absolute monarch and there could
be no question as to his power of delegation.
In Re. Delhi Laws Act, r9r2, [1951] S.C.R. 747, referred to.
The proclamation issued by the Yuvaraj on November 25,
1949, did not vary the constitutional position as it stood after
the execution of the Instrument of Accession by the Maharaja
nor could it in any way affect the authority conferred on the
Yuvaraj by his father.
The contention that the application of certain specified Articles of the Indian Constitution to the State by the Constitution
(Application to Jammu and Kashmir) Order (C. 0. ro) issued by
the President on January 26, 1950, affected the sovereign powers
of the Yuvaraj was not correct.
Neither the scheme of Art. 370 nor the explanation to cl. (r)
of that Article contemplated that the Maharaja was to be a constitutional ruler. The temporary provisions of that Article were
2'2
SUPRJllME COURT REPORTS (1959] Supp.
1959
based on the assumption that the ultimate relationship between
India and the State should be finally determined by the Consti•
Prem Nath Kaul tuent Assembly of the State itself.
So, that Article could not,
v.
either expressly or by implication, be intended to limit the
The State of
plenary legislative powers of the Maharaja. Till the Constituent
j(onmu & l(ashmir Assembly of the State, therefore, made its decision, the Instrument of Accession must hold 1he field.
•
The initial formal application of Art. 385, which was subsequently deleted from the list of Articles applied to the State,
could not justify the conclusion that it had adversely affected
the legislative powers of the Yuvaraj.
There was no substance in the contention that the decision
of the Constituent Assembly not to pay compensation was invalid
as the Assembly itself was not properly called or constituted.
There could be doubt that the Yuvaraj was perfectly competent
to issue the proclamation dated April 20, 1951, in variation of the
Maharaja's, under which the Assembly was ultimately constituted, and so the Assembly was properly convened.
CIVIL
APPELLATE JURISDICTION:
Civil Appeal
No. 152 of 1955.
Appeal by special leave from the judgment and
order dated ·March 25, 1953, of the Jammu and
Kashmir High Court in Civil First Appeal No. 4 of
2009.
N. C. Chatterjee, Gopi Nath Kunzru and Naunit Lal,
for the appellants.
H. N. Sanyal, Additional Solicitor General of India,
J aswant Singh, Advocate General for the State of Jam mu
and Kashmir, R. H. Dhebar and T. M. Sen, for the
respondent.
1959.
March 2.
The Judgment of the Court
was delivered by
Gajendragadka. J.
GAJENDRAGADKAR, J.-This
appeal by special
leave arises from a suit filed by the appellant in a
representative capacity (Civil Suit No. 4 of 2008)
against the State of Jammu & Kashmir praying for a
declaration that the Jammu & Kashmir Big Landed
Estate Abolition Act, XV II of 2007 (hereinafter called
the Act) is void, inoperative and ultra vires of
Yuvaraj Karan Singh who enacted it and for a further
declaration that the appellant was entitled to retain
the peaceful possession of his lands.
(2) S.C.R. SUPREME COURT REPOR'rS
273
It appears that the validity of the Act was similarly
z959
challenged by Maghar Singh by his suit filed on the P
N h
•
Original Side of the High Court of Jammu & Kashmir
rem :' Kaul
(Civil Suit No. 59 of 2007); and Mr. Justice Kilam
The state of
who had heard the said suit had rejected the plainljjff's Jainmu .s. Kashmir
contentions and held that the Act was valid.
When the appellant' suit came for trial before the Gajendragadkar f.
District Court it was conceded on his behalf that the
points raised by him against the validity of the Act
had been decided by Mr. Justice Kilam and that, in
view of the said decision, the appellant could not usefully urge anything more before the District Court.
The learned District Judge who was bound by the
decision of Mr. Justice Kilam applied it to the suit
before him and held that the Act was valid and that
the appellant was not entitled to the two declarations
claimed by him. In the result the appellant's suit
was dismissed.
Against this decree the appellant preferred an appeal in the High Court of Jam mu & Kashmir (Civil
Appeal No. 4 of 2009).
Maghar Singh whose suit had
been dismissed by Mr. Justice Kilam had also preferred an appeal (No. 29 of 2008) before the High Court.
The two appeals were heard together by a Division
Bench of the High Court which held that the Act was
valid and that the appellants were not entitled to any
declaration claimed by them. Both the appeals were
accordingly dismissed.
Against the decree passed by the High Court dismissing his appeal the appellant applied to the High
Court for leave to appeal to this Court. The said
application was, however, dismissed.
Thereupon the
appellant applied for, and obtained, special leave to
appeal to this Court.
In dealing with this appeal it is necessary to narrate in some detail t.he events which took place in
Kashmir and the constitutional changes which followed them in order to appreciate fully the background of
the impugned legislation. A clear understanding of
this background will help us to deal with the appellant's case in its proper perspective. In 1925 Maharaja
35
274
SUPREME COURT REPORTS [1959] Supp.
'959
Hari Singh succeeded Maharaja Pratap Singh as the
Ruler of Kashmir. It appears that for some time
Prem Nath Kaul
v.
prior to 1934 there was public agitation in Kashmir
n, state of
for the establishment of responsible government.
Jammu & l<ashmfr Presumably as a sequel to the said agitation Maharaja
.
-
Hari Singh issued Regulation 1 of 1991 (1934).
The
Ga;•ndragadhar J. Regulation began with the statement of policy that it
was the declared intention of the Maharaja to provide
for the association of his subjects in the matter of
legislation and the administration of the State and
that it was in pursuance of the said intention that the
Regulation was being promulgated. This Regulation
consisted of 46 sections which dealt with the legislative, executive and judicial powers of the Maharaja
himself, referred to the subjects which should be reserved from the operation of the Regulation, made provision for the constitution of the Legislature of the
State, conferred authority on the Council to make
rules for specified purposes and referred to other
relevant and material topics. It is relevant to refer
to only two sections of this Regulation.
Section 3
provides that all powers legislative, executive and
judicial in relation to the State and its government
are hereby declared to be, and to have been always,
inherent in and possessed and retained by His Highness the Maharaja of Jammu & Kashmir and nothing
contained in the Regulation shall affect or be deemed
to have affected the right and prerogative of His
Highness to make and pass regulations, proclamations
and ordinances by virtue of his inherent power.
Section 30 lays down that no measure shall be deemed
to have been passed by the Praja Sabha until and
unless His Highness has signified his assent thereto.
The Regulation leaves it to the absolute discretion of
His Highness whether to assent to such a measure
or not.
Five years later the Maharaja promulgated the
Jammu & Kashmir Constitution Act 14of1996(1939).
From the preamble to this Constitution it appears
that, before its promulgation, the Maharaja had issued
a proclamation on February 11, 1939, in which he
had announced his decision as to the further steps to
(2) S.C.R. SUPREME COURT REPORTS
275
be taken to enable his subjects to make orderly pror959
gress in the direction of attaining the ideal of active Prem Nath Kaul
co-operation between the executive and the Legislav.
ture of the State in ministering to the maximum hapThe State of
piness of the people. In accordance with this desire Jammu & J(ashmir
the text of the Constitution contained in Regulation 1
-
of 1991 was thoroughly overhauled and an attempt Gajendragadlwr J.
was made to bring the amended text into line with
that of similar Constitutions of its type. This Constitution is divided into six parts and includes 78
sections. Part 1 is introductory. Part 2 deals with
the executive; Part 3 with the Legislature; Part 4
with the Judicature; Part 5 contains miscellaneous
provisions; and Part 6 provides for repeal and saving
and includes transitional provisions. It is significant
that s. 5 of this Act, like s. 3 of the earlier Regulation,
recognises and preserves all the inherent powers of
His Highness, while s. 4 provides that the State was
to be governed by and in the name of His Highness,
and all rights, authority and jurisdiction which appertain or are incidental to the government of the State
are exercisable by His Highness except in so far as
may be otherwise provided by or under the Act or as
may be otherwise directed by His Highness. The
other provisions of the Act are all subject to the overriding powers of His Highness specifically preserved
by s. 5.
As we will point out later on, in substance
the Constitutional powers of the Maharaja under the
present Act were exactly the same as those under the
earlier Act.
·while the State of Jammu & Kashmir was being
governed by the Maharaja and the second Constitution as amended from time to time was in operation,
political events were moving very fast in India and
they culminated in the passing of the Indian Independence Act, 1947. Under s. 7 (1) (b) of this Act the
suzerainty of His Majesty over the Indian States lapsed
and with it lapsed all treaties and agreements in force
at the date of the passing of the Act between His
Majesty and the Rulers of the Indian States, all obligations of His Majesty existing at that date towards
Indian States or the Rulers thereof, and all powers,
276
SUPREME COURT REPORTS [1959] Supp.
'959
rights, authority or jurisdiction exercisable by His
p,,m Nath J(aul Majesty at that date in or in relation to Indi~n States
v.
by treaty, grant, usage, sufferance or otherwise. The
The state of
proviso to the said section, however, prescribed that,
Jammu & Kashmfr notwithstanding anything in para. (b), effect shall, as
.
-
nearly as may be, continue to be given to the proviGaJendragadkar f. sions of any such agreement as therein referred to in
relation to the subjects enumerated in the proviso or
other like matters until the provisions in question are
denounced by the Ruler of the Indian State on the
one hand or by the Dominion or Province concerned
on the other hand, or are superseded by subsequent
agreements. Thus, with the lapse of British paramountcy the State of Jammu & Kashmir, like the
other Indian States; was theoretically free from the
limitations imposed by the said paramountcy subject
to the provisions of the proviso just mentioned.
On October 22, 1947, the tribal raiders invaded the
territory of the State; and this invasion presented a
problem of unprecedented gravity before the Maharaja.
With the progress of the invading raiders the safety
of the State was itself in grave jeopardy and it appeared that, if the march of the invaders was not successfully resisted, they would soon knock at the doors of
Srinagar itself. This act of aggression set in motion a
chain of political events which ultimately changed the
history and political constitution of Kashmir with unexpected speed.
On October 25, 1947, the Maharaja signed an Instrument of Accession with India which had then become
an Independent Dominion. By the First Clause of
the Instrument the Maharaja declared that he had
acceded to the Dominion of India with the intent that
the Governor-General of India, the Dominion, Legislature, the Federal Court and any other Dominion Authority established for the purpose of the Dominion
shall, by virtue of the Instrument of Accession, subject always to the terms thereof and for the purposes
only of the Dominion, exercise in relation to the
State of Jammu & Kashmir such functions as may be
vested in them by or under the Government of India
Act, 1935, as in force in the Dominion of India on
August 15, 1947.
(2) S.C.R.
SUPREME COURT REPORTS
277
We may usefully refer to some other relevant clausI 959
es of this Instrument. By cl. 3 the Maharaja agreed Prem Nath Kaul
that the matters specified in the Schedule attached to
v.
the Instrument of Accession were the matters with
The State of
respect to which the Dominion Legislature may makefammu & Kashmir
laws for this State. Clause 5 provides that the Instru- G . d -dk
1
.
b
d
f h
a;en raga
ar
.
ment shall not be vaned
y any amen ment o t e
Government of India Act, 1935, or of the Indian Independence Act, 1947, unless such amendment is accepted by the Maharaja by an Instrument supplementary
to the original Instrument of Accession.
By cl. 7 it
was agreed that the 1\!Iaharaja would not be deemed
to be committed to the acceptance of any future Constitution of India nor would his discretion be fettered
to enter into agreements with the Government of
India under any such future Constitution. Clause 8
is very important. It says that nothing in the Instrument affects the continuance of the Maharaja's sovereignty in and over his State, or, save as provided by or
under the Instrument, the exercise of any powers,
authority and rights then enjoyed by him as Ruler of
the State, or the validity of any law then in force in
the State. The Schedule attached to the Instrument
refers to four topics, defence, external affairs, communications and ancillary, and under these topics twenty
matters have been serially enumerated as those in
respect of which the Dominion Legislature had the
power to make laws for the State. Thus, by the Instrument of Accession, the Maharaja took the very important step of recognising the fact that his State was
a part of the Dominion of India.
Meanwhile, the invasion of the State had created
tremendous popular fervour and patriotic feelings in
resisting the act of aggression and this popular feeling
inevitably tended to exercise pressure on the Maharaja
for introducing responsible and popular government in
the State. The Maharaja tried to pacify the popular
demand by issuing a proclamation on March 5, 1948.
By this proclamation he stated that in accordance
with the traditions of his dynasty he had from time to
time provided for increasing association of his people
with the administration of the State with the object of
278
SUPREME COURT REPORTS [1959] Supp.
'959
realising the goal of full responsible government at as
P
-;;-,
1 early a date as possible, and he added that he had
rnn ;
1
• Kau noted with gratification and pride the progr.ess made
The Stale of
so far aud the legitimate desire of his people for the
Jammu & I<ashmir.immediate establishment of a folly democratic consti-
.
-
tution based on adult franchise with a hereditary
Ga;endrngadka. f. Ruler from his dynasty as the constitutional head of
an executive responsible to the Legislature. It appears that before this proclamation was issued the Maharaja had already appointed Sheikh Mohammed Abdullah who was then the popular leader of the people as the
head of the emergency administration. By the proclamation the Maharaja replaced the emergency administration by a popular interim government and provided for its powers, duties and functions pending the
formation of a fully democratic constitution. Clause 1
of the proclamation provides for the composition of the
Ministry, whereas by cl. 2 the Prime Minister and
other ministers are required to function as a cabinet
and act on the principle of joint responsibility.
A
Dewan appointed by the Maharaja is to be a member
of the Cabinet. Clause 4 provides that the Council of
Ministers shall take appropriate steps, as soon as restoration of normal conditions has been completed, to
convene a N atioual Assembly based on adult franchise
having due regard to the principle that the number of
representatives from each voting area should, as far as
practicable, be proportionate to the population of that
area. Clause 5 then lays down that the Constitution
to be framed by the National Assembly shall provide
adequate safeguards for the minorities and contain
appropriate provisions guaranteeing freedom of conscience, freedom of speech and freedom of assembly.
Clause 6 states that when the work of framing the
Constitution is completed by the National Assembly
the Constitution would be submitted through the
Council of Ministers to the Maharaja for his acceptance.
The proclamation ended with the expression of
hope that the formation of a popular interim government and the inauguration in the near future of a fully
democratic Constitution would ensure the contentment,
happiness and the moral and material advancement
(2) S.C.R.
SUPREME COURT REPORTS
279
of the people of the State.
Though under this
r959
Proclamation a popular interim government was set Prem N alh Kaul
up, the constitutional position still was that the popuv.
lar government had theoretically to function under
The state of
the Constitution of 1939. It appears that before the Jammu & Kashmir
popular government was thus installed in office the
.
-
Maharaja had deputed four representatives of the Ga;endragadkar f.
State to represent the State in the Constituent Assembly called in the Dominion of India to frame the Constitution of India.
After the popular interim government began to
function the political events in the State gathered
momentum and the public began to clamour for the
framing of a democratic Constitution at an early date.
When the atmosphere in the State was thus surcharged, the Maharaja issued his final proclamation on
June 20, 1949, by which he entrusted to Yuvaraj
Karan Singh Bahadur all his powers and functions in
regard to the government of the State because he had
decided for reasons of health to leave the State for a
temporary period. "Now therefore I hereby direct
and declare", says the proclamation, "all powers and
functions whether legislative, executive or judicial
which are exercisable by me in relation to the State
and its government including in particular my right
and prerogative of making laws, of issuing proclamations, orders and ordinances, or remitting, commuting
or reducing sentences and of pardoning offenders,
shall, during the period of my absence from the State,
be exercisable by Yuvaraj Karan Singh Bahadur ".
As subsequent events show this was the last official
act of the Maharaja before he left the State.
After Yuvaraj Karan Singh took the Maharaja's
place and began to function under the powers assigned
to him by the said proclamation, the interim popular
government installed earlier was functioning as before.
On November 25, 19.49, Yuvaraj Karan Singh
issued a proclamation by which he declared and directed that the Constitution of India shortly to be adopted by the Constituent Assembly of India shall, in so
far as it is applicable to the State of Jammu & Kashmir, govern the constitutional relationship between
280
SUPRE:ME: COURT R:mPORTS [1959] Supp.
t959
the State and the contemplated Union of India and
P
-h
shall be enforced in the State by him, his heirs and
"m ~~
1 Kaul successorR in accordance with the tenor of its proviThe sta" of
sions. He also declared that the provisions of the said
Jammu & J(ashmfr Constitution shall, as from the date of its commence-
.
-
ment, supersede and abrogate all other constitutional
Ga1endrngadkar J. provisions inconsistent therewith which were then in
force in the State. The preamble to this proclamation shows that it was based on the conviction that
the best interests of the State required that the constitutional relationship established between the State
and the Dominion of India should be continued as between the State and the contemplated Union of India;
and it refers to the fact that the Constituent Assembly
of India which had framed the Constitution of India
included the duly appointed representatives of the
State and that the said Constitution provided a suitable basis to continue the constitutional relationship
between the State and the contemplated Union of
.India. On January 26, 1950, the Constitution of India
came into force.
This proclamation was followed by the Constitution
(Application to Jammu & Kashmir) Order, 1950
(C. 0. 10) which was issued on January 26, 1950, by
the President in consultation with the Government of
Jammu & Kashmir and in exercise of the powers conferred by cl. (1) of Art. 370 of the Constitution. It
came into force at once. Clause (2) of this order provides that for the purposes of sub-cl. (i) of Art. 370 of
the Constitution, the matters specified in the First
Schedule to the Order correspond to matters specified
in the Instrument of Accession governing the accession of the State of Jammu & Kashmir to the Dominion of India as the matters with regard to which the
Dominion Legislature may make laws for that State;
and accordingly the power of Parliament to make
laws for that State shall be limited to the matters specified in the said First Schedule. Clause (3) provides
that, in addition to the provisions of Art. 1 and Art.
370 of the Constitution the only other provisions of
the Constitution which shall apply to the State of
Jammu & Kashmir shall be those specified in the
(2) S.C.R. SUPREME COURT R~POR'rS
281
Sedond Schedule to the Order and shall so apply subz959
ject to the exceptions and modifications specified in
the said Schedule. The First Schedule to the Order Prem Nath Kaul
v.
specified 96 items occurring in the Union List; while
Th• State of
the Second Schedule set out the Articles of the Consti- Jammu & Kashmir
tution made applicable to the State together with the
exceptions and modifications. Later on we will haveGajendragadkar J.
occasion to refer to some of these Articles on which
the appellant has relied.
It appears that, after the interim popular Government took office, the Revenue Minister made a statement of policy at a meeting of the special staff of
revenue officers held in the Govi:irnor's office on August
13, 1950. The Minister stated that whatever the
difficulties, the Cabinet was determined to go ahead
and transfer the proprietorship of the land to the tiller.
The main idea underlying the proposed agricultural
reform was that a landlord shall not possess more
than 20 acres of agricultural land. In addition he
would be allowed 8 kanals for his use and Sagzar and
4 kanals for his second house if in existence, and 10
kanals for Bedzar or Safedzar. It was contemplated
that a committee would be appointed to settle the
details and other matters incidental to the said agricultural plan.
It was presumably in pursuance of this plan adopted by the interim Cabinet that the Act was promulgated by Yuvaraj Karan Singh on October 17, 1950.
The preamble to the Act shows that it was promulgated because no lasting improvem.ent in agricultural
production and efficiency was possible without the
removal of the intermediaries between the tiller of
the soil and the State, and so, for the purpose
of improving agricultural production, it was expedient
to provide for the abolition of such proprietors as own
big landed estates and to transfer the land held by
them to the actual tiller. The Yuvaraj enacted the
law in exercise of the powers vested in him under s. 5
of the Constitution Act of 1996 and the proclamation
issued by Maharaja Hari Singh on June 20, 1949. The
Act consists of 47 sections and purports to carry out its
36
282
SUPREME COURT REPORTS (1959] Supp.
t959
policy of improving the agricultural production of the
State by providing for the extinction of the proprietors'
P1em Nath J(aul
v.
titles and the transfer oi the lands to the tillers, and
The state of
by setting up a self-contained machinery for the carryJaminu e;. Kashmir ing out of the scheme of the Act and for settlement of
.
-
all incidental disputes arising thereunder.
Go;endrngadka, 1 ·
For the purpose of this appeal, however, it is necessary to refer to a few reievant sections which deal
with the broad features of the extinction of the proprietors' rights and the transfer of lands to the tillers.
S. 2 of the Act inter alia defines land, proprietor and
tiller, while s. 3 excludes certain specified lands from
the operation of the Act. Section 4, sub-s. (1) provides for the extinction of the right of ownership in certain lands and it lay.s down that notwithstanding anything contained in any law for the time being in
force, the right of ownership held by a proprietor in
land other than the land mentioned in sub-s. (2) shall,
subject to the other provisions of the Act, extinguish
and cease to vest in him from the date the Act comes
into force.
Sub-section (2) of s. 4 enumerates lands
which are excluded from the operation of sub-s. (1).
They are (a) units of land not exceeding 182 kanals
including residential sites, Bedzars and Safedzars, (b)
Kahikrishmi areas, Araks, Kaps and unculturable
wastes including those used for raising fuel or fodder,
and (c) orchards. The proviso to sub-s. (2) gives
government the power to dispose of lands mentioned
in cl. (b) in such a manner as may be recommended
by the committee to be set up for that purpose. Section
26 of the Act deals with the question of payment to the
proprietors. It provides that there shall, until the
Constituent Assembly of the State settles the question
of compensation, with respect to the land expropriated
under this Act, be paid by the government to every
proprietor who has been expropriated, an annuity in
the manner indicated in the section. In other words,
subject to the final decision of the Constituent Assembly, s. 26 contemplates the payment of annuity to the
expropriated proprietors according to the scale prescribed in the section. With the rest of the sections
we are not concerned in the present appeal.
(2) S.C.R. SUPREME COURT REPORTS
283
After the Act was enacted by the Yuvaraj he issued
'959
a proclamation on April 20, 1951, directing that a P
N
h
C
't
A
bl
· ·
f
t t'
f
rein
at Katti
onst1 uent ssem y cons1stmg o represen .a ives o
v.
the people elected on the basis of adult franchise shall
The State of
be constitnted forthwith for the purpose of framing a Jamm11 & Kashmir
Constitution for the State of J ammu & Kashmir. The
proclamation sets out the manner in which members Gajendragadkar J.
of the said Constituent Assembly would be elected and
makes provisions for the holding of the said elections.
It also authorised the Constituent Assembly to frame
its own agenda and make rules for regulating its procedure and the conduct of its business. The preamble
to this proclamation shows that the Yuvaraj was satisfied that it was the general desire of the people that a
Constituent Assembly should be brought into being
for the purpose of framing a Constitution for the State
and that it was commonly felt that the convening of
the said Assembly could no longer be delayed without
detriment to the future well.being of the State. The
Yuvaraj also felt no doubt that the proclamation
issued by the Maharaja on March 5, 1948, in regard to
the convening of the national assembly as per els. 4 to
6 no longer met the requirements of the situation in
the State. Thus this proclamation was intended to
meet expeditiously the popular demand for the framing of a democratic constitution ; and it indicates that
a decisive stage had been reached in the political history of the State.
In accordance with this proclamation a Constituent
Assembly was elected and it framed the Constitution
for the State. By the Constitution thus framed the
hereditary rule of the State was abolished, and a provision was made for the election of a Sadar-i-Riyasat
to be at the head of the State. On November 13, 1952,
the Yuvaraj was elected to the office of the Sadar-iRiyasat and with his election the dynastic rule of
Maharaja Hari Singh came to an end.
On November 15, 1952, the Constitution (Application to Jammu & Kashmir) Second Amendment Order,
1952 (C. 0. 43) was issued; and it came into force on
November 17, 1952. By this Order the earlier Order of
1950 was amended as a result of which all references
284
SUPREME COURT REPORTS [1959] Supp.
r959
in the said Order to the Rajpramukh shall be conN
h K
1 strued as references to the Sadar-i-Riyasat of Jammu
Prem
al
au & Kashmir. Similarly in the Second Schedule to the
v.
The s1a1e of
said Order some amendments were made. On the
Jammu & KashmiY same day a Declaration (C. 0. 44) was made by the
-
President under Art. 370, sub-art. (3) of the ConstituGajendragadkar f. tion that from November 17, 1952, the said Art. 370
shall be operative with the modification that for the
explanation in cl. (I) thereof the new explanation shall
be substituted. The effect of this new explanation was
that the government of the State meant the person for
the time being recognised by the President, on the recommendation of the Legislative Assembly of the
State, as the Sadar-i-Riyasat of Jammu & Kashmir
acting on the advice of the Council of Ministers of the
State for the time being in force.
On November 18,
1952, Yuvaraj Karan Singh was recognised as the
Sadar-i-Riyasat of Jammu & Kashmir.
·
On May 14, 1954, another Constitution (Application
to Jammu & Kashmir) Order (C. 0. 48) was made by
the President which inter alia applied Art. 31A and
31B to the State with certain modifications and included the Act in the Ninth Schedule of the Constitution. The last two Orders were issued subsequent to
the enactment of the Act and so they would have no
bearing on the decision of the points raised before us.
We have briefly referred to them for the sake of completing the narrative of the material events.
The validity of the Act is impeached mainly on the
ground that Yuvaraj Karan Singh had no authority to
promulgate the said Act. It is this argument which
has been urged before us by Mr. Chatterjee in different
and alternative forms that needs careful examination.
The first attack against the competence of Yuvaraj
Karan Singh proceeds on the assumption that at the
time when Maharaja Hari Singh conveyed his powers
to Yuvaraj Karan Singh by his proclamation of June
20, 1949, he was himself no more than a constitutional monarch and as such he could convey to Yuvaraj Karan Singh no higher powers. Let us first deal
with this argument.
Prior to the passing of the
Independence Act, 1947, the sovereignty of Maharaja
(2) S.C.R.
SUPREME COURT REPORTS
285
Hari Singh over the State of J ammu & Kashmir was
I959
subject to such limitations as were constitutionally Prem Nath l\aul
imposed on it by the paramountcy of the British
v.
Crown and by the treaties and agreements entered
The state of
into between the Rulers of the State and the BritishJammu& Kash111ir
Government. It cannot be disputed that so far as
.
-
the internal administration and governance of the Ga;eudragadkar f.
State were concerned Maharaja Hari Singh, like his
predecessors, was an absolute monarch; and that all
powers legislative, executive and judicial in relation
to his State and its governance inherently vested in
him. This position has been emphatically brought
out by s. 3 of Regulation 1 of 1991 (1934). 'Though by
this Regulation Maharaja Hari Singh gave effect
to his intention to provide for the association of his
subjects in the matter of legislation and administration of the State, by s. 3 he fully preserved in himself
all of his pre-existing legislative, executive and judicial
powers. Section 3 not only preserves the said powers
but expressly provides that nothing contained in the
Regulation shall affect or be deemed to have ,affected
the right and prerogative of His Highness to make
and pass regulations, proclamations and ordinances
by virtue of his inherent authority. It is thus clear
that the rest of the provisions of the Regulation were
subject to the overriding powers preserved by His
Highness.
It is, however, urged that this constitutional position was substantially altered by the subsequent Constitution Act of 1996 (14 of 1996). We are unable to
accept this argument.
Sections 4 and 5 of this Act
in terms continue to preserve all the powers legislative, executive and judicial as well as the right and
prerogative of His Highness just as much a.s s. 3 of
Regulation 1 of 1991. It is significant that the provisions of Pt. II which deals with the executive, like
those of Pt. III which deals with the Legislature,
begin with the express provision that they are subject
to the provisions of ss. 4 and 5.
In other words, the
powers conferred on the executive and the Legislature,
limited and qualified as they are, are made expressly
subject to the overriding powers of His Highness.
'
286
SUPREME COURT REPORTS [1959] Supp.
'959
Besides, there are specific provisions in the Act which
Prem Nath l(aul clearly emphasise the preservation of the said powers.
v.
Section 24 which enumerates the reserved matters
The State of
over which the Praja Sabha had no authority to legisJammu &- J(ashmir late provides by cl. (i) that the provisions of the Act
and the rules made thereunder and their repeal or
Gajendrngadka' J. modifications constitute reserved matters.
Besides
cl. (j) confers on His Highness the authority to add
other specified matters to the list of reserved matters
from time to time. These provisions make it clear that
his Highness could enlarge the list of reserved matters
thereby limiting the jurisdiction of the Praja Sabha.
Similarly the legislative procedure prescribed by s. 31,
sub-ss. (2) and (3) clearly shows that it is only such
bills as received the assent of His Highness that became law, His Highness's power to assent or not to
assent to the bills submitted to him being absolutely
unfettered. The ordinances issned by His Highness
under s. 38 cannot be repealed or altered by the Praja
Sabha by virtue of s. 39; and lastly s. 72 expressly
preserves the inherent power and prerogative of His
Highness.
Thus there can be no doubt that though
this Act marked the second step taken by His Highness in actively associating his subjects with the administration of the State, it did not constitute even a
partial surrender by His Highness of his sovereign
rights in favour of the Praja Sabha. So far as the
said powers are concerned, the constitntional position
under this Act is substantially the same as under the
earlier Act.
It is contended by Mr. Chatterjee that the prerogative rights which are preserved by ss. 5 and 72 of this
Act represent only such rights as had not been entrusted to the Praja Sabha ; and in support of this
contention he referred us to the observation made by
Dicey that "the discretionary authority of the Crown
originates generally not in Act of Parliament, but in
the prerogative-a term which has caused more perplexity to students than any other expression referring to the constitution. The prerogative appears to be
both historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary
(2) S.C.R.
SUPREME COURT REPORTS
287
authority, which at any given time is legally left
1959
in the hands of the Crown" (1).
This observation
h
b
d
· h
l b
h H
f L
Prem Nath I<aul
as een cite
wit approva
y t e
ouse o
ords
in the case
0 of Attorney-General v. IJ_e Key8er's Royal
The ~~te of
Hotel Ltd. (·).
We do not see how this statement can Jammu &- Kashmir
assist us in determining the constitutional status, and
the extent of the powers, of Maharaja Hari Singh in Gajendragadkar ].
relation to the governance of the State.