# V irendra Singh and Others v. The State of Ullar Pradesh

- **Citation:** [1955] 1 S.C.R. 415
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Bench:** Mehr Chand Mahajan C.J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-irendra-singh-and-others-v-the-state-of-ullar-pradesh-397
- **Pages:** 25

## Headnote

MuKHF.RJEA, VIVIAN
BosE, BHAGWATI and VENKATARAMA AYYAR JJ.]
Constitution of India, arts. 5, 19(f), 31(1), proviso to art. 131
and
art.
363-Efject
of
the
Constitution-Erst-while
Indian
States-Forming part of India-Any State
Government-Whether
can do anything in the nature of act of State-Sovereign-Whether
can plead act of State against the citizen-Jagirs and Muafis
by
Rulers of Indian States having full autonomy and sovereignty prior
.,..to the Constitution-Whether can be avoided afte1· the Constitution
when not challenged up to the date of the Constitution-Courtsfurisdiction of-To question the accessions and such grants.
--0
1c54
W azir C!zaiid
v.
Ti.e State of
Himac.\al
Pradesh.
Mehr chand
ilJahajan C. ].
1954
April 29.
1954
V irendra Singh
and Others
v.
The State of Ullar
Pradesh.
416
SUPREME COURT REPORTS
[1955]
- .,.
The petitioners
were
granted
in
January, 1948,
Jagirs and
Muafis by the Ruler of Sarila State in one village and by the Ruler
of Charkhari State in three villages. In March, 1948, a Union of 35
States including the States of Sarila and Charkhari was formed
<
into the United State of Vindhya Pradesh.
The Vindhya Pradesh
Government confirmed these grants in December, 1948, when its
H.evenue Officers interfered with them
questioning their validity.
The integration of States ho\vever did not work well and the same
.>
35
Rulers entered into an . agreement in December, 1949, and..,.
dissolved the newly
created State as from
1st January, 1950, each'
Ruler acceding to the
Government of
India all authority and
jurisdiction in
relation to
the
Government of
that
State, the
Instrument being called the Vindhya Pradesh Merger agreement.
Article VIII of the Instrument stated :-
-
"No enquiry
shall be made by or under the authority of the
Government of India,
and no proceeding shall
be
taken in any
Court against the
Ruler
of any covenanting State, whether in a
personal capacity or
otherwise
in
respect
of anything
done or._
omitted to be done
by him or under his
authority
during the
period of his administration
of
that State."
The
States which
formed Vindhya Pradesh were transformed into a Chief Commissioner's Province on 23rd January, 1950. The four villages (called
enclaves)
were taken out of this Province on 25th January, 1950,
and absorbed into the United Provinces
(now Uttar Pradesh) by
an Order of the Governor-General under the provisions of the
Government of India Act, 1935.
The grant of the four villages
made in favour of the petitioners in January, 1948, was revoked in --f
August, 1952, by the Government of Uttar Pradesh in consultation
with the Government of India, the operative part of the revocation
order being made by the Governor of Uttar Pradesh.
Held (i) that the petitioners were entitled to a writ under art.
32(2) of the Constitution inasmuch as the order revoking the
grant of Jagirs and Muafis in the four villages violated art. 31 (!)
and art. 19(f) of the Constitution.
(ii) No State Government has the right to do anything in the
nature of an act of State.
(iii) The accessions by the Rulers
of States and their accept:;/
ance by the Dominion of India were acts of State and no Municipal Court could question their competency.
Article 363
and the
proviso to art. 131 of the
Constitution
bars
the
jurisdiction of
Courts in
India after the
Constitution to settle any dispute arising out of the accessions and their acceptance.
All that the Courts
can do is to register the factum of such accessions.
(iv) The properties
1n
question
\Vere properties over which
the Rulers had absolute right of disposition at the
date of the
grants. The grants were absolute in character and would under
any civilised system of law pass an absolute and indefeasible titl~
to
the
grantees. Assuming (but not deciding)
that they were
defeasible at the mere will of the soverign the fact remained that
·-
-
-
-
S.C.R.
SUPREME COURT REPORTS
417
they were neither resumed by the Former Rulers nor
confiscated
by the Dominion of India as an act of Stat

## Text

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-
-
S.C.R.
SUPREME COURT REPORTS
415
-r
and with the help of the Chamba police seize the goods
and attempt to take them to Jammu by a letter of
request written by the District Magistrate of Jammu
to the District Magistrate of Chamba.
Lastly it was argued that the petitioner made an
application under section 523, Criminal Procedure Code,
to the magistrate
and that application
was
dismissed
_... and that a petition for revision against that order was
still pending, and that when another remedy had been
taken, article 226 could not be availed of. This contention cannot be sustained, firstly in view of the fact
that section 523 has no application to the facts
and
circumstances of this case, and the magistrate had no
jurisdiction to return these goods to the petitioner.
Secondly, the revision application has been dismissed
.J( on the ground that there was no jurisdiction in this
case to grant relief to the petitioner under section 523.
For the reasons given above we allow this appeal,
set aside the order of the Judicial Commissioner and
direct an appropriate writ to issue directing the restoration to the petitioner · of the goods seized by the police.
The appellant will have his costs of the appeals and
r
those
incurred
by
him m
the Court of
Judicial
• Commissioner.
Appeal allowed.
VIRENDRA SINGH AND OTHERS
1/.
THE ST ATE OF UTT AR PRADESH.
[MEHR
CHAND
MAHAJAN C.J.,
MuKHF.RJEA, VIVIAN
BosE, BHAGWATI and VENKATARAMA AYYAR JJ.]
Constitution of India, arts. 5, 19(f), 31(1), proviso to art. 131
and
art.
363-Efject
of
the
Constitution-Erst-while
Indian
States-Forming part of India-Any State
Government-Whether
can do anything in the nature of act of State-Sovereign-Whether
can plead act of State against the citizen-Jagirs and Muafis
by
Rulers of Indian States having full autonomy and sovereignty prior
.,..to the Constitution-Whether can be avoided afte1· the Constitution
when not challenged up to the date of the Constitution-Courtsfurisdiction of-To question the accessions and such grants.
--0
1c54
W azir C!zaiid
v.
Ti.e State of
Himac.\al
Pradesh.
Mehr chand
ilJahajan C. ].
1954
April 29.
1954
V irendra Singh
and Others
v.
The State of Ullar
Pradesh.
416
SUPREME COURT REPORTS
[1955]
- .,.
The petitioners
were
granted
in
January, 1948,
Jagirs and
Muafis by the Ruler of Sarila State in one village and by the Ruler
of Charkhari State in three villages. In March, 1948, a Union of 35
States including the States of Sarila and Charkhari was formed
<
into the United State of Vindhya Pradesh.
The Vindhya Pradesh
Government confirmed these grants in December, 1948, when its
H.evenue Officers interfered with them
questioning their validity.
The integration of States ho\vever did not work well and the same
.>
35
Rulers entered into an . agreement in December, 1949, and..,.
dissolved the newly
created State as from
1st January, 1950, each'
Ruler acceding to the
Government of
India all authority and
jurisdiction in
relation to
the
Government of
that
State, the
Instrument being called the Vindhya Pradesh Merger agreement.
Article VIII of the Instrument stated :-
-
"No enquiry
shall be made by or under the authority of the
Government of India,
and no proceeding shall
be
taken in any
Court against the
Ruler
of any covenanting State, whether in a
personal capacity or
otherwise
in
respect
of anything
done or._
omitted to be done
by him or under his
authority
during the
period of his administration
of
that State."
The
States which
formed Vindhya Pradesh were transformed into a Chief Commissioner's Province on 23rd January, 1950. The four villages (called
enclaves)
were taken out of this Province on 25th January, 1950,
and absorbed into the United Provinces
(now Uttar Pradesh) by
an Order of the Governor-General under the provisions of the
Government of India Act, 1935.
The grant of the four villages
made in favour of the petitioners in January, 1948, was revoked in --f
August, 1952, by the Government of Uttar Pradesh in consultation
with the Government of India, the operative part of the revocation
order being made by the Governor of Uttar Pradesh.
Held (i) that the petitioners were entitled to a writ under art.
32(2) of the Constitution inasmuch as the order revoking the
grant of Jagirs and Muafis in the four villages violated art. 31 (!)
and art. 19(f) of the Constitution.
(ii) No State Government has the right to do anything in the
nature of an act of State.
(iii) The accessions by the Rulers
of States and their accept:;/
ance by the Dominion of India were acts of State and no Municipal Court could question their competency.
Article 363
and the
proviso to art. 131 of the
Constitution
bars
the
jurisdiction of
Courts in
India after the
Constitution to settle any dispute arising out of the accessions and their acceptance.
All that the Courts
can do is to register the factum of such accessions.
(iv) The properties
1n
question
\Vere properties over which
the Rulers had absolute right of disposition at the
date of the
grants. The grants were absolute in character and would under
any civilised system of law pass an absolute and indefeasible titl~
to
the
grantees. Assuming (but not deciding)
that they were
defeasible at the mere will of the soverign the fact remained that
·-
-
-
-
S.C.R.
SUPREME COURT REPORTS
417
they were neither resumed by the Former Rulers nor
confiscated
by the Dominion of India as an act of State and up to the 25th of
January, 1950, the right and title of the petitioners to continue in
possession was good.
The Constitution by reason of the authority
derived from and conferred by the people of India destroyed all
vestiges of arbitrary and despotic power in the territories of India
and over its citizens and lands and
prohibited just
such acts of
arbitrary power as the State in the present case was seeking to
uphold.
The Dominion of India and all those
who were invited
there sat in the Constituent Assembly not as conquerors and conquered, not as those who ceded and as those who absorbed but as
the
soverign peoples of
India,
free democratic
equals.
Every
vestige
of sovereignty was abandoned by the
Dominion of India
and the States and surrendered to the peoples of the land who
framed the new Constitution of India.
(v) Under art. 5 of the Constitution all the residents of the
then
Indian States including the Rulers and people of Sarila and
Charkhari, viz., those who made the grants and those who received
them and those who were seeking to make the confiscation as an
act of State, became citizens of India.
(vi) No sovereign can exercise an act of State against its own
subjects
and
an act of
State can never be exercised against one
who has
always
been a citizen from
the
beginning in territory
which has from its
inception
belonged to
the
State seeking to
exercise that right.
Case law reviewed.
ORIGINAL JuRISDICTION : Petition No. 37 of 1953.
Under article 32 of the Constitution of India,
praying that the Order of
the Governor of Uttar
Pradesh dated the 29th August, 1952, revoking the
grants made by the Rulers of Charkhari and Sarila in
favour of the petitioners be declared void.
K.
S.
Krishnaswamy Iyengar, and S. P. Sinha
(Bishan Singh and S. S. Shukla, with them) for the
petitioners.
Gopalji Mehrotra and C. P. Lal for the respondent.
C. K. Daphtary, Solicitor-General for India ( G. N.
foshi, Porus A. Mehta and P. G. Gokhale, with him) for
the Intervener.
1954. April
29. The Order of the Court was
pronounced by
BosE J.-This is a petition under article 32 of the
Constitution. It raises an important question about
the post-Constitutional rights to property situate in
IS
1954
V irtndra Singh
and Othm
·V•
T ht Statnf Uttar
Prad~sh,
·1254
V ire11dra .Singh·
and tJtJ11tf
"'
The \')t(llr of· UUar
·Pradesh.
/JoJe J.
418
SUPREME COURT REPORTS
[195,5]
' Indian States that were not part of British India before
the Constitution but which acceded to the Dominion
of India shortly before the Constitution and became'
an integral part of the Indian Republic after it.
The States in question here are Charkhari and Sarila.
In British days they were independent States under
. the paramountcy of the British Crown. They acknowkdged the British Crown as the suzerain power and
owed a modified allegiani:e to it, but none to the
Government of India.
In 1947 India obtained Independence and became a
Dominion by reason of the Indian Independence Act
of 1947. The suzerainty of the British Crown over the
Indian States
lapsed
at
the same time because · of
section 7 of that Act. Immediately after, all but three
of the Indian States acceded to the new Dominion . by
executing Instruments of Accession. Among them were
the two States with which we are concerned. The new
Dominion of India was empowered to accept these
accessions by a su'table amendment in the Government.
of India Act, 1935. The sovereignty of the acceding
States
was
expressly recognised and safeguarded. The
operative words of the Instrument of Accession which
each Ruler signed were-
"Now Therefore 1. ........... Ruler of. ........... in
the exercise of my sovereignty in and over my said
State do
hereby
execute this
my
Instrument of
Accession."
And clause 8 provided that-
"Nothing in
this
Instrument affects
the
conti·
nuance of my sovereignty in and over this State, or,
save as provided by or under this Instrument, the
exercise of any powers, authority and rights now enjoyed
by me as Ruler of this State or the validity of any law
at present in force in this State."
Broadly speaking, the effect of the accession was to
retain to the Rulers their full autonomy and sovereignty
except on three subiects : Defence, External Affairs and
Communications. These were transferred to the Central
Government of the new Dominion.
-
-
-
)(
-
S~C.R.
SUPREME COURT REPORTS
419
One other clause is important, clause 6, which provided that--
"Nothing
111 this Instrument shall empower the
Dominion Legislature to make any law for the State
authorising the compulsory acquisition of land for any
"
purpose ......... .
About the same time, each acceding Ruler entered
into a standstill agreement with the Dominion of India.
The following clause is relevant :
"Nothing in this
agreement includes the
exercise
of any paramountcy functions."
The alienations now
111
question were made in
January, 1948.
On 5th January, 1948, the Ruler of
Sarila granted the
village Rigwara
to the petitioners
and on 28th January,
1948,
the
Ruler of Charkhari
granted the villages Patha, Kua and Aichana, also to
the petitioners.
After this, on 13th March, 1948, thirty five States in
Bundelkhand and Baghelkhand (including Charkhari
and Sarila) agreed to unite themselves into one State
which was to be called the United State of Vindhya
Pradesh. In pursuance of this agreement each of the
thirty five Rulers signed a covenant on 18th March, 1948,
which brought the new State into being. It is important
to note that this was a purely domestic arrangement
between themselves and not a treaty with the Dominion of India. Each Ruler necessarily surrendered a
fraction of his sovereignty
to the whole but there was
no forther surrender of sovereign
powers to
the
Dominion of India beyond those already surrendered
in 1947, namely Defence, External Affairs and Communications.
Despite the readjustment, the sum total
of the sovereignties which had resided in each before
the covenant now resided in the whole and its component parts : none of it was lost to the Dominion of India.
Soon after this, the Revenue Officers of the newly
formed Vindhya Pradesh Union tried to interfere with
the grants made by certain Rulers of the integrating
States before the integration ; among them were the
grants
in question
here.
This occasioned complaints
to the
Vindhya
Pradesh
Government
and
that
1954
V irendra Singh
and Othm
v.
The State of Uttar
Prad.,h.
Bose].
1954
V irendra Singt'i
and Others
v.
TM State of Uttar
Pradesh.
Bose J.
420
SUPREME COURT REPO).lTS
(1955}
-~
Government decided on 7th December, 1948, to respect
the impugned grants. The Revenue Minister's order of
that date runs-
"After considering over the whole question it has
been decided that such grants made by the Rulers
before
signing
the
covenant
should
be
respected,
because constitutionally the
V. P. Government should
not refuse. recognition to such grants unless they are
directed otherwise by the State Ministry."
Orders were accordingly issued to the Revenue
Officers concerned to "abstain from interfering in such
grants."
This
decision was communicated to the
Rulers of Charkhari and Sarila on 13th March, 1949.
They were told that their grants would be respected.
The integration did not work satisfactorily, so, on
26th December,
1949, the same
thirty
five
Rulers
entered
into another
agreement
abrogating
their
covenant and dissolving the newly created State as
from 1st January, 1950. By the same instrument each
Ruler ceded to the Government of the Indian Dominion
as from the same date "full and exclusive authority,
jurisdiction and powers for,
and in relation to1
the
governance of that State." Article II provided that-
"As from the aforesaid day, the United State of
Vindhya Pradesh
shall
cease
to
exist,
and
all the
property, assets and liabilities of that State, as well
as its rights, duties and obligations, shall be those of
the Government of India."
This Instrument was called the Vindhya Pradesh
Merger Agreement. The Government of the Indian
Dominion was also a party and its Secretary in the
Ministry
of
States
appended
his signature
to the
document. Each Ruler was guaranteed a privy purse
and all the personal privileges, dignities and titles
enjoyed by him at the date of the Agreement. Immediately
after the
clause guaranteeing the privy purse
comes the followingArticle IV
...................................................
(2) The said amount is intended to cover all the
expenses of the Ruler and his family ........ and shall
I
-
-
-
S.C.R.
SUPREME COURT REPORTS
421
neither be increased nor reduced for any reason whatsoever."
The following clauses are also relevant :
Article VI
"The Government of India
guarantees
the success10n, according to law and custom, to the gaddi of
each Covenanting State, and to the personal rights,
privileges, dignities and titles of the Ruler thereof.
Article VII
(1) The Ruler of each . Covenanting State shall be
entitled to the full ownership, use and enjoyment of
all private properties (as distinct from State properties) belonging to him on the date of his making over
the administration of that State to the Raj Pramukh in
pursuance of the Covenant.
(2) If any dispute arises as
to whether any item
of property
1s the private property of the Ruler or
State property, it shall be referred to a judicial officer
to be nominated by the Government of India, and the
decision of that officer shall be final and binding on all
parties concerned.
Article VIII
No enquiry
shall be made by or under the
authority of the Government of India, and no proceeding shall lie in any Court, against the Ruler of any
Covenanting State, whether in a personal capacity or
otherwise, in respect of anything done or omitted to be
done by him or under his authority during the
period
of his administration of that State."
The Dominion Government took over the administration of the
States
which formed
Vindhya Pradesh
on 1st January, 1950, and decided to form them into
a Chief Commissioner's Province. It did this by a
Notification
of the
Governor-General
dated 22nd
January,
1950,
and brought the new Province into
being on 23rd
January,
1950.
But
the four villages
we are concerned with (called enclaves) were taken
out of this
Province on 25th
January, 1950, and
absorbed
into the
United
Provinces
(now Uttar
Pradesh) by an Order of the Governor-General entitled
Virendra Singh
and Others
v.
The State of Uttar
Pradesh.
Bose].
1 ~ 54
V irendra Sfo.t:!i
a11d Others
. v.
The Sto.te of Uttar
Pradesh.
Buse].
422
SUPREME COURT REPORTS
[1955]
the Provinces
an<l
States
(Absorption of Enclaves)
Order, 1950. This Order was made under sections
290, 290-A and 290-B of the Government of India Act,
1935.
The portions of that Order relevant for the present
purpose are these :
"3 (1) As from the appointed
day,
every enclave
specified in the First Schedule shall cease to form part
of the surrendering unit, and shall be included in, and
form part of, the absorbing unit .......... "
"6. All property
and assets within an enclave
which, immediately before the appointed
day, vested
in the Government of the surrendering unit shall, as
from that day, vest in the Government of the absorbing unit.
7. All rights, liabilities
and
obligations,
whether
arising out of contract or otherwise, of the Government of a surrending unit in relation to an enclave
shall, as from the appointed day, be the rights, liabilities and obligations, respectively, of the Government
of the absorbing unit.
8. All laws in force in an enclave immediately
before the appointed day shall, as from that day, cease
to be force in that enclave, and all laws in force in
the absorbing unit shall, as from that day, extend to,
and be in force in, that enclave."
The Constitution came into force on 26th January,
1950. Later that vear the Uttar Pradesh Government
decided to reopen ·the question of revocation which the
Vindhya Pradesh
Government had settled on 7th
December, 1948, and on 29th August, 1952, more than
two and a half years after the Constitution and four
and a half years after the grants, the Uttar Pradesh
Government, in consultation with the Government of
India, revoked the grants with which we are concerned.
The Governor of Uttar Pradesh issued the following
order on 29th August, 1952 :
"Subject : Voidable grants
of
Jagirs
and Muafis
made by the Rulers of Charkhari and Sarila before the
integration.
-
,
-
-
S.C.R.
SUPREME COURT REPORTS
423
With reference to your endorsement No. 3885/XV
110-1950
d~ted September 30,
1950, on the above
sub:,ect, I am directed to say that, in consultation
with the Government of India, the
Governor has
decided to revoke the grants made by the rulers of
Charkhari and Sarila on or after January 1, 1948, to
the members of their families relations and others
,,
Copies of this order were forwarded to the Rulers of
Charkhari and Sarila on 29th January, 1953.
This occasioned the present petition under article
32 of the
Constitution
against
the
State
of
Utta1
Pradesh.
The
Union
Government
was
ailowed
to
intnvene.
The State of Uttar Pradesh made the
following affidavit in reply :
"(3) That immediately before or after the signing
of the agreement
some
Rulers
of the
Indian States
constituting the Vindhya Pradesh
Union,
whose territories
were
subsequently
absorbed
in
the
Uttar
Pradesh, had granted jagirs and muafis of land to their
near
relations
ma!a
fide
and
thereby
indirectly
increased their privy purse.
( 4) That it appears that Vindhya Pradesh Government opened the case of mala fide grants made by
the
rulers of integrating States and at their instance the
Government of India issued instructions
to the
Uttar
Pra<lesh Government to do the same.
(9) .. · .. The effect of these grants is to increase the
privy purse of the 'ruler. ... whose responsibility it was
to :mpport the grantees."
The operative order of revocation was made by the
Governor of Uttar Pradesh
and under the Constitution it is clear that no State Government has the right
to do anything in the nature of an act of State, but
in view of the fact that the revocation was made in
consultation with the
Government of India, we were
asked to treat the Uttar
Pradesh Governor as a delegate of the sovereign authority whose act has been
approved
and
ratified
by that authority,
along the
V irendra Sing.~1
and Others
v.
Ti.• Stateof Ulla•
Prades!1.
Bose].
1954
V irendra Singh
and Others
v.
T f,e State of Uttar
Pradesh.
Bose J.
424
SUPREME COURT REPORTS
(1955]
lines of Buron v. Denman('), the Secretary of State in
Council of India v. Kamachee Boye Sahaba( '), and
fohnstone v. Pedlar( 3 ), and to decide on that basi<
whether the Union Government had the right and
power to revoke these grants as an act of. State.
Jurists hold divergent views on this matter. At one
extreme is the view of the Privy Council in a series of
cases.
Their
effect was
summarised
in
Vajesingii
foravarsi11gji v. Secretary of State for India in Council(')
and again
in
Secretary
of State v. Sardar
Rustam
Khan(') in the following words :
"A summary of the matter is this : when a territory is acquired by a sovereign State for the first time
that
1s
an act
of State. It matters not how the
acqms1t10n
has
been brought
about.
It may be by
conquest, it may be by cession following on treaty, it
may be by occupation of territory hitherto unoccupied
by a recognised ruler. In all cases the result is the
same. Any inhabitant of the territory can make good
in the municipal Courts established by the new
sovereign only such rights
as that sovereign has,
through
his officers, recognised. Such rights as he had under
the rule of predecessors avail him nothing. Nay more.
even if in a treaty of cession it
is
stipulated that
certain
inhabitants should enjoy certain rights,
that
does not give a title to those inhabitants to enforce
these stipulations in the municipal Courts. The right
to enforce remains only with the high contracting
parties ;" also in the Secretary of State in Council of
India v. Kamachee Boye Sahaba(') and in fohnstone v.
Pedlar (') as follows :
"Of the propriety or justice
of that act, neither
the Court below nor the Judicial Committee have the
means of forming, or the right of expressing, if they
had formed, any opinion. It may have been
just or
unjust, politic or impolitic
beneficial or injurious, taken
as a whole, to those whose interests are affected. These
are considerations into which their Lordships cannot
enter. It is sufficient to say that, even if a wrong has
(I) Exch. Rep. 167.
(4) 51 I.A. 357 at 36c.
(2) 7 M.I.A. 476 at 540.
(5) 68 I.A. 109 at 124.
(3) [1921] 2 A.C. 262 at 279.
(6) [1921] 2 A.C. 262 at 280.
...
,
'
-
S.C.R.
SUPREME COURT REPORTS
425
been done, it is a wrong for which no Municipal Court
.of justice can afford a remedy."
According to the Privy Council in Secretary of State
for India in Council
v.
Bai Rajbai ( 1 ) and also in
Vajesingji foravarsingji v. Secretary
of State for India
in Counci/(6), the burden of proving that the new
sovereign has recognised the old rights lies on the party
asserting it. The learned
Solicitor-General relies on
these cases.
At the other extreme is the view of Chief Jus::ice
John Marshall of the United States Supreme Court.
He said in the United States v. Percheman( 3 )
in the
year 1833:
"It may not be unworthy of remark that is
very
unusual, even in cases of conquest, for the conqueror
to do more than to displace the soverign and
assume
dominion over the country. The modern usage of
nations, which has become law, would be violated ;
that sense of justice and of right which is acknowledged and felt by the whole civilised world would be
outraged, if private property should
be
generally
confiscated, and private rights annulled. The people
change their allegiance ; their relation to their ancient
sovereign is dissolved ; but their relations to each
other, and their rights of property, remain undisturb-
·ed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an
amicable cession of territory ? ........ A cession of territory is never understood to be a cession of the property
belonging to its inhabitants. The king cede~ that only
which belonged to him. Lands he had previously
granted were not his to cede. Neither party could
so
understand the cession.
Neither party could
consider
itself as attempting a wrong to individuals, condemned
by the
practice of the whole
civilised world. The
cession of a territory by its name from one sovereign
to another, conveying the compound idea of surrendering at the same time the lands and the people who
inhabit them, would be necessarily understood to pass
(I) 42 I.A. 229 at 239.
(3) 32 U.S. 51 at 86,87.
(2) 51 I.A. 357 at 361.
Virentlra Sing.'1
and Others
v.
The Stale ef lJitar
Prad,,lt.
Bose].
IS54
Virmdra Sinp,h
and Others
v.
The State of Uttar
Pradesh.
Rose J426
SUPREME COURT REPORTS
[ 1955]
the sovereignty only, an<l not to interfere with private
property."
This view was followed by Cardozo J. in 1937 in
Shapleigh v. Mier(1 ). He said :-
"Sovereignty
was
thus
transferred,
but
private
ownership remained the same ................ To find the
the title to the land today we must know where title
stood while the land was yet in Mexico."
We gather from Hyde's International Law, Volume
I, second edition, page 433,
that the same
principle
was laid down by the Permanent Court of International
Justice. The learned author quotes the Court as saying in its Sixth Advisory Opinion of September 10,
1923, on certain questions
relating
to
settlers of
German origin in the territory ceded by Germany to
Polana-
"Private rights acquired under existing law do not
cease on a change of sovereignty. No one denies that
the German Civil Law, both substantive and adjective,
has continued without 'interruption to operate in the
territory in question. It can hardly be maintained that,
although
the
law
survives,
private
rights
acquired
under it have perished. Such a contention is bo<ed on
no principle and would be contrary to an almost
universal opinion and prectice .............. It suffices for
the purposes of the present opinion to say that even
those who contest the existence in international law of
a general principle of State succession do not go so far
as
to
maintain
that
private
rights
including those
acquired from the State as the owner of the property
are invalid as against a successor in sovereignty."
The learned counsel for the petitioners relies on this
class of case and derives this much support for it from
the Privy
Council in Mayor or Lyons v. East India
Campany( 2 ) where Lord Brougham said :-
"It is agreed, on all hands, that (when) a foreign
settlement (is)
obtained
in an inhabited country,
hy
conquest, or hy
cession' ........ the law of the country
continues until the Crown, or the Legislature, change it."
(1) 299 U.S. 468 at 470.
(2) 1 M.l.A. 175 at 270,271 .•
-
-
•
-
-
S;C.R;
SUPREME COURT REPORTS
427
It is right however to point out that Hyde places
limitations on the doctrine at page 432 and that the
learned authors of
Corpus Juris : International Law,
Volume 33, page 415, place the limitation that in the
absence of express
understanding a conqueror
assumes
no obligations of the conquered state. This distinction
was also drawn by Lord Alverstone C.J. in West Rand
Central Gold Mining Company v. Rex( 1 )
where, commenting on the American cases, he said that there is
a difference between the private rights of individuals in
private property
and
contractual
rights
which
are
sought to be enforced against the new sovereign. He
said:-
"It 'must not be forgotten that the
obligations of
conquering States with regard to private property of
private individuals, particularly land as to which the
title had already been perfected before the conquest or
annexation, are
altogether
different from the obligations
which arise
in respect
of personal rights by
contract. As is said in more cases than one, cession of
territory
does
not mean
the
confiscation of the
property of individuals in that territory. If a particular
piece of property
has
been
conveyed to a private
owner or has been pledged, or a lien has been cre~tecl
upon it, considerations arise which are different from
those which have to be consiclerecl when the question
is whether the contractual obligation of the conquered
State
towards individuals is to be undertaken by the
conquering State."
Lord
Alverstone also
pointed out that in the
Americ.1n cases, on which the international jurists have
based their views,
the treaties of cession as well as the
subsequent legislation of the United States protected the
rights of owners of private property as they existed at
the time of cession and so the only question for
decision in each of those
cases was wether any private
rights of property actually existed at the relevant date.
Now that is also the English law, for the Privy Council
and the House of Lords have also held that the new
sovereign can choose to waive his rights and recognise
titles and rights as they existed at the elate of cession.
(1) [1905] 2 K. B. 391at411.
9--87 S. C. India/59
V irendra Singh
and Otheis
v.
T ht State of Uttar
Praduh.
Bou J.
l!J54
Virtndra Si'ng~
iind Ot.i#s,
v •.
Tiu State of Uttar
Prade•h.
Bose].
428
SUPREME COURT REPORTS
[1955]
This recognition can
be given either
by legislation or
by proclamation and it can ·even be inferred from the
mode of dealing with the property after the cession :
Forester v. Secretary of State for India in Counci/(1 )
(legislation) ; Secretary of State v. Bai Rajbai(2 ) (agreement, legislation and mode of dealing) ; Mayor of Lyons
v. East India Company(') (waiver)
and at page 285
(relinquishment) ;
also
Vajesinghji
/oravarsinghji v.
Secretary of State for India(') and Secretary of State
v. Sardar Rustam Khan(').
In dealing with the views of international jurists,
Lord Halsbury insisted that they were . only enunciations of what in their opinion the law ought to be and
had no binding force. He said in the House of Lords
in Cook v. Sorigg(') :
~
"It is no answer to
say
that by the ordinary
principles of international
law
private · property is
respected by the sovereign which accepts the cession
and assumes the duties and legal obligations of the
former sovereign with respect to such private property
within the ceded territory. All that can be properly
meant by such a. proposition is that according to the
well-understood rules of international law a change of
sovereignty by cession ought not
to
affect private
property,
but no municipal
tribunal
has authority to
enforce such an obligation. And if there is either an
express or a well-understood
bargain
between the
ceding potentage and the Government to which the
cession is made that private property shall be respected, that is only a bargain which can be enforced by
sovereign against
sovereign in the ordinary course of
diplomatic pressure."
His view was endorsed by the Privy Council in
Secretary of State v. Sardar Rustam Khan(') and again
in the House of Lords in /ohnstone v. Pedlar( 7 ). Lord
Alverstone C. J.
analysed in detail how far international law can be accepted and applied in municipal
(IJ 1872-73 I.A. Supplt. to at 17)
(S) 68 I.A. 109 at 123.
(2) 42 I.A. 229 at 237.
(6) [18Bgl A.G. 572 at ;,7B.
"*
(3) 1 M.l.A. 175 at 281.
{7) (1921] 2 A.C. 262 at 281.
(4) 51 I. A. 357 at 361.
-
'
..
-
'
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S.C.R.
SUPREME COURT REPORTS
429
Courts of justice in West Rand Central Gold Mining
Company v. Rex( 1 )
and set out reasons for the above
conclusion.
The learned counsel for the petitioners also relies on
another limitation which the English Courts have placed
on an act of State. He says that even if the right to confiscate
be .conceded it must be taken to have been
waived if either the Crown or its officers purport to act
un<ler colour of a legal title and not arbitrarily. He
contended that arbitrariness was of the essence in an
act of State. He relied on Secretary of State in Council
of India v. Kamachee Boye Sehaba( 2 ), Forester v. Secretary of State for India in
Council(3) and Johnstone v.
Pedlar(4 ~. He pointed out that the affidavit of the
"
respondent shows tl1at Government decided to confirm
all grants except those which were mala fide. Therefore,
this was no arbitrary act of annexation but an attempt
to exercise what was thought to be a legal right.
We do not intend to discuss any of this because, in our
opinion, none of these decisions has any bearing on the
problem which confronts us,
namely, the impact of
the Constitution on the peoples and territories which
joined the Indian Union and brought the Constitution
into being. The flow of events up to the date of final
accession,
1st
January,
1950,
are only of
historical
interest in the present matter. The Rulers of Charkhari
and Sarila retained, at the moment of final cession,
whatever
measure
of
sovereignty
tliey
had
when
pararnountcy
lapsed,
less
the portion given
to the
Indian Dominion by their Instruments of Accession in
1947 ; they lost none of it during the interlude when they
""
toyed with the experiment of integration. There was
then redistribution of some of its aspects but the whole
of· whatever they
possessed
before
the integration
returned to each when the United State of Vindhya
Pr:idesh was brought to an end and ceased
to exist.
Thereafter each acceded to the Dominion of India in
bis own right.
Now it is undoubted that the accessions and the
,,_ :1cceptance of them by tl1e Dominion of India were
(1) [1.905] 2 K.~. 391 at 401-408.
(3) 1872-73 I.A. Supplt.10 at 17.
(2) 7 M.I.A. 476 at 531.
(4) [1921) 2 A.C. 262 at Q81.
1 ~54
Virendra Singh
and Others
...
The State ef Uttar
Praduh.
Bose].
Virtmfrn Singh
1<ni Otlur.s
...
Tfr Slule of LUttar
P1adesh.
B11seJ.
430
SUPREME COURT REPORTS
l 1955 r
acts of State into whose competency no municip;1l
Court could enquire ; nor can any Court in lndia, after
the
Constitution,
accept
jurisdiction
to
settle
any
dispute arising out of them because of article 363 and
the proviso to article 131 ; all they can do is to register
the fact of accession ; see section 6 of the Government
of India Act,
1935, relating to the Accession of States.
But what then ? Whether the Privy
Council view
is
correct or that put forward by Chief Justice Marshall
in its broadest outlines is more proper, all authorities
are agreed that it is within the competence of the new
sovereign to accord recognition to existing rights in the
conquered or ceded territories and, by
legislation or
otherwise, to apply its own laws to them ; and these
laws can, and indeed when the occasion arises must, be
examined and interpreted
by the municipal
Courts of
the absorbing State.
Now in the present case, what happened after the
final accession ? There was already in existence in 1949
section 290-A
of the Government of India Act,
1935,
which provided as follows :
"Administration of
certain
Acceding States
as a
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 by
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 ....... · .. .
(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 tlie Order is made."
The final Instrument of Accession complies with
sub-section
(1) above. The necessary Order was made
and
the Chief
Commissioner's Provin-ce of. Vindhya
. )-
-
;
-
-
S.C.R.
SUPREME COURT REPORTS
431
Pradesh, which at that date included the property in
dispute, came into being on 23rd January, 1950. Now
it is beyond dispute that there neither can, nor could,
be. confiscation of property as an act· of State in the
Chief Commissioner's Province of Delhi. It is difficult
to see how there could be in an area which was being
administered
by
the Dominion Government
in all
respects as a Chief Commissioner's Province even if the
person in possession was not, at the time, a national of
the country, an
assumption which is by no means
indisputable ; indeed that is the effect of the decision of
the Privy Council in Mayor of Lyons v. East India
Company( 1). There would appear to have been a clear
election by the sovereign authority expressed in its
own legislation to waive its rights of confiscation even
if they were there (a point we do not decide) ; and the
same consequences
followed when
the
properties -in
dispute were incorporated into the State of Uttar
Pradesh, two days later, on 25th January, 1950. The
Privy Council go even further in Mayor of Lyons v.
East India Company at page 285 and say that the
waiver or relinquishment can be established from the
treaty itself.
" .... it cannot be
denied
that the Crown may
relinquish its prerogative ; indeed, whenever the inhabitants of conquered provinces are held to obtain the
rights of subjects by treaty, (and even Sir F. Norton
has no doubt of this being possible) those who hold the
doctrine · the most vigorously must say that the treaty
is a voluntary abandonment of a right of the Crown.
It evidences the will of the sovereign to exempt the
conquered territory from this branch of his prerogative.
But the same will of the sovereign may be collected
from other circumstances, and the like abandonment
of the prerogative be thus evidenced."
But however that may be, the fact remains that the
titles of these petitioners to the disputed lands had not
been repudiated up to the 26th of January, 1950. It is
immaterial whether or not the right of the Dominion
Government
to do
so remained
in
abeyance till
exercised . despite
the
agreement
embodied
m
the
(1) M. I fl. 175 at 0.71 0 ~75·
V irendra Sing 11
iind Ot'zers
v.
T /ze State of Ut/ar
Pradesi1.
Bose J.
J1 fren Ira Singh
a11d Ot/au5.
v.
7" 1,,. State of lhfar
Pt(1d:sh.
Bose .7.
432
SUPREME COURT REPORTS
I 1955]
Instruments of Accession and
the
legislation
and
notification
quoted
above
because, in fact, it was not
exercised.
Now what was the effect of the non-exerci~e of those
rights ? Even on the English view, the person in de facto
possession is not without rights in the land, nor is he
altogether without remedy. It is just a question of the
means
of
redress.
In Johnstone v. Pedlar(') Lord
Atkinson, speaking in the House of Lords, said :-
"It is on the authorities quite dear that the injury
inflicted upon an individual by the act of State of a
sovereign authority does not by reason of the
nature
of the act by which the injury
is inflicted cease to be
a wrong. What these authorities do establish is that a
remedy for the ·wrong cannot be sought for in the
Courts of the sovereign authority which inflicts the
injury, and that the aggrieved party must depend for
redress upon the
diplomatic action of the
State, of
which he is a subject."
So also in Forester v. Secretary of State for India(•),
the Begum, whose estate Government sought to confiscate as an act of State, was only in de facto possession :
see page 16. The Privy Council held that the Government had purported to act under colour of a legal title,
so its attempt at resumption was not an act of State
and consequently could be reviewed in the Courts.
Their Lordships
thereupon
proceeded . to investigate
the Begum's title, not under the British Government,
but as derived from the sovereign power which preceded it (page 18). So also in Mayor of Lyons v. East
India Company('), the title of a foreign alien to land
was upheld, not under the English law (because if that
had applied there would have been an escheat), but
under the
law in India derived from non-British
sources, that is to say, under the laws of the land before
cession. It was held that those laws continued until
changed and for that reason a title which would have
been bad Uf!der the English law was upheld. At page
274 their Lordships say :-
(I) [1921]2 A.C. 262 at 278.
(3) 1M.I.A175 at 274-275.
(2) 1872-73 I.A. Supplt. 10.
-
)
•
'
S.C.R.
SUPREME COURT REPORTS
•133
"It follows from what has been observed, not only
that Calcutta was a district acquired in a country
peopled, and having a Government of its own, but that,
for a long course of tifi:\e no such law as that which incapacitates aliens, could be introduced, any more than
it could now be introduced into such part of the Asiatic
or Portuguese territory ....