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PETITIONER:

RAJ RAJENDRA MALOJIRAO SHITOLE

Vs.

RESPONDENT:

THE STATE OF MADHYA BHARAT.RAJA BALBHADRA SINGHV.THE STATE O

DATE OF JUDGMENT:

02/02/1954

BENCH:

MAHAJAN, MEHAR CHAND (CJ)

BENCH:

MAHAJAN, MEHAR CHAND (CJ)

MUKHERJEA, B.K.

DAS, SUDHI RANJAN

BOSE, VIVIAN

HASAN, GHULAM

CITATION:

1954 AIR 259 1954 SCR 748

CITATOR INFO :

R 1955 SC 817 (16)

ACT:

Constitution of India, art. 385--Madhya Bharat Abolition

of Jagirs Act (XXVIII of 1951)--Whether void as not

passed by a validly constituted legislature.

HEADNOTE:

The decision of the Madhya Bharat High Court

declaring

section 4 (1) (g) and sub-cls. (iv) and (v) of cl. 4 of

Schedule I of Madhya Bharat Abolition of Jagirs Act

(XXVIII of 1951) as illegal and inoperative was not

questioned by either of the parties.

It was however, contended that the impugned Act

(XXVIII of 1951) was void as it was not passed by a

validly constituted legislature within the meaning of the

covenant entered into by the Rulers of Madhya Bharat as

the provisions of cl. 1(c) of Schedule IV of the covenant

for the election of 20 members were not complied with.

Held, that as the Madhya Bharat Legislative Assembly

actually functioning on the 26th January, 1950, the validity

of the Acts passed by it could not be questioned in view

of art. 385 of the Constitution irrespective of the fact

whether it had been proPerly constituted in accordance

with the terms of the covenant or not

Scope of articles 379, 382 and 385 discussed.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 4

and 6 of 1953.

Appeals under article 132(1) of the Constitution of

India from the judgment and Order dated the 4th December,

1952, of the High Court of Judicature of the State of Madhya

Bharat at Gwalior in Civil Miscellaneous Cases Nos. 614 of

1951 and 1 of 1952.

P.R. Das (B. Sen, with him) for the appellant in C.A.

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No. 4 of 1953.

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Rameshwar Nath for the appellant in C.A. No. 6 of 1953.

M.C. Setalvad, Attorney-General for India, and K. A.

Chitale, Advocate-General of Madhya Bharat (Shiv Dayal,

with them) for the respondent.

1954. February 2. The Judgment of the Court was

delivered by

MAHAJAN C.J.--These appeals preferred on behalf of three

zamindars of the State of Madhya Bharat against the

judgment of the High Court of Judicature of that State dated

the 4th December, 1952, raise common constitutional

questions and can be disposed of by one judgment. The

State also preferred cross appeals against the same

judgment. During the pendency of these appeals, two

petitions under article 32 of the Constitution of India

were also made to this court to obtain the same relief as

was claimed by the appellants in their respective

appeals. During the course of the arguments, the counsel

appearing for the appellant in Civil Appeal No. 5 of 1953

asked leave to withdraw the appeal. This was granted

and the appeal was dismissed as having been withdrawn.

Petitioner. Nos. 116 and 117 of 1953 preferred under

article 3 were also withdrawn and were accordingly

dismissed. Civil Appeals Nos. 4 and 6 of 1953 were argued

before us and this judgment concerns them alone.

The appellant in Civil Appeal No. 4 of 1953, Rajendra

Maloji Rao Shitole, is the proprietor of extensive landed

properties in the State of Madhya Bharat comprising 260

villages under different Sanads granted to his ancestors by

the Rulers of Gwalior from time to time. It was alleged by

him that his income from these properties was in the sum

of Rs. 2,61,637 and that the State of Madhya Bharat,

under purported exercise of its powers under section 3 of

the Madhya Bharat Abolition of Jagirs Act, was about to

issue a Notification for resumption of all his land. By a

petition dated the 7th December, 1951, preferred to the

High Court he asked for a mandamus to restrain the State

from issuing any Notification under section 3(1) of the

Act in respect of his properties and from

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interfering with rights in the said property. The appellant

in Civil Appeal No. 6 of 1953 is another Jagirdar of the

same State. He preferred a similar petition to the High

Court praying for the same relief. These two petitions,

along with a number of other petitions preferred under

article 226 of the Constitution challenging the validity

of the Madhya Bharat Abolition of Jagirs Act and praying

for the issue of a mandamus restraining the State from

issuing the Notification under section 3(1) of the said

Act, were heard by a Bench of three Judges of the High

Court of Madhya Bharat. The ,court, by a majority

judgment, declared that the Madhya Bharat Abolition of

Jagirs Act No. XXVIII of 1951 was valid except as

regards section 4(1)(g) and sub-clauses (iv) and (v) of

clause 4 of Schedule I which were held illegal and

inoperative. A writ of mandamus was directed to be issued

to the State Government directing it not to give effect to

the procisions of the impugned Act stated above. Leave

to appeal to the Supreme Court was granted to the paries

and in pursuance of the leave the appellants referred

the appeal above mentioned and the State referred the two

cross appeals. The cross appeals were not pressed by the

learned Attorney-General and nothing more need be said

about them. They are therefore dismissed with costs.

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As regards Civil Appeals . Nos. 4 and 6 of 1953, the

facts are: That in April, 1948, after the partition of

India, and the formation of two Dominions, India and

Pakistan, the Rulers of the States of Gwalior, Indore

and certain other States in Central India being

convinced that the welfare of the people of that region

could best be secured by the establishment of a State

comprising the territories of' their respective

States with a common Executive, Legislature and

Judiciary entered into an agreement for the

formation of a United State of Gwalior, Indore and Malwa

(Madhya Bharat). It was resolved by them to entrust to a

Constituent Assembly consisting of elected

representatives of the people the drawing up of a

democratic Constitution for the State within the framework

of the Constitution of India to which the Rulers of these

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States had acceded. The covenant entered into by these

Rulers was published on the 7th October, 1948. The Rulers

agreed, under article III of the covenant, to elect a

Rajpramukh of the United State, and by article VI the

Ruler of each Covenanting State agreed to make over

the administration of the State to the Rajpramukh not later

than the first day of July, 1948, and it was agreed that

thereupon all rights, authority and jurisdiction

belonging to the Ruler which appertain, or are incidental

to, the Government of the Covenanting States shall vest in

the United State and were thereafter to be exercisable

only as provided by the covenant or by the Constitution to

be framed thereunder. By article X it was agreed that

as soon as practicable a Constituent Assembly, for the

purpose of framing a Constitution for the United State

within the framework of the covenant and the Constitution

of India, was to be formed and clause (2) of the said

article provided:

"The Rajpramukh shall constitute not later than the

first day of August, 1948, an interim Legislative Assembly

for the United State in the manner indicated in Schedule

IV."

Schedule IV laid down the following procedure for the

constitution of the Legislative Assembly:

"1. The Legislative Assembly shall consist of--

(a) forty members elected by the members of the

Gwalior Legislative Assembly;

(b) fifteen members elected by the members of the

Indore Legislative Assembly; and

(c) twenty members elected by an electoral college

to be constituted by the Rajpramukh in consultation with

the Government of India to represent Covenanting States

other than Gwalior and Indore.

2. The election shall be by proportional representation

by means of the single transferable vote.

3. The Rajpramukh may make rules for carrying into

effect the foregoing provisions of this Schedule and

securing the due constitution of the interim Legislative

Assembly."

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In pursuance of this covenant the Rajpramukh took the

oath of office on the 28th of May, 1948. In the meantime

40 members representing the Indore group were elected to

the interim legislative-assembly on the 8th and 9th of

May, 1948, respectively. As regards the election of 20

members that had to be elected by an electoral college,

what happened was this. The Ministry of States,

Government of India, on the 5th July, 1948, informed the

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Rajpramukh that there were many practical difficulties in

setting up an electoral college consisting of elected

representatives of the various States, because in many

of the smaller States there were no elected bodies of any

kind. After considering the various difficulties it was

suggested to the Rajpramukh that the twenty seats may be

allocated between the different States in a certain manner

mentioned in the latter and out of these, fourteen may be

allotted to the nominees of the Praja Mandal and the

remaining six may be nominated by the Rajpramukh himself.

This suggestion was modified by a letter of the 19th of

November, 1948, and it was finally agreed upon that the

Madhya Bharat Provincial Congress Committee may be

asked to elect six persons 'to represent the smaller

States in the Madhya Bharat interim legislative assembly.

This suggestion was not exactly in accord with what had

been indicated in clause 1 (c) of Schedule IV. These

representatives were elected in the manner suggested in the

two letters, on the 19th October, 1948, and they were

declared to be validly elected in terms of the covenant.

On the 30th of October, 1948, the Rajpramukh promulgated

an Ordinance entitled "The Interim Legislative

Assembly Ordinance Samvat 2005", Ordinance No. 18

of 1948. In the preamble to the Ordinance it was

declared that in accordance with the provisions of the

covenant the legislative assembly had already been

duly constituted. The various sections of the Ordinance

provided for the working of the interim legislative

assembly, i.e., the manner in which it could be summoned

and dissolved or prorogued, how its President and Deputy

President were to be elected and how it was to exercise

the power of

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voting and what number of members would constitute the

quorum. On the 6th of December, 1948, the

Ordinance was repealed and Act XXIII of 1949 took

its place. The legislative assembly thus constituted

was actually functioning on the 26th of January, 1950,

when the Constitution of India: came into force. In the

meantime, by subsequent covenants, the Rulers of the

Covenanting States had agreed to accept the Constitution

of India as the Constitution of the United State of Madhya

Bharat and had abandoned their covenant of forming a

separate Constituent Assembly for framing a Constitution

for the United State of Madhya Bharat. After

the coming into force of the Constitution of India the

interim legislative assembly constituted by the

Rajpramukh and which was functioning on the 26th of

January, 1950, continued to function till some time in

the year 1952 when new elections took place and a

legislative assembly in conformity with the provisions of

the Constitution of India was duly constituted.

On the 30th of November, 1949, the Government of the

State of Madhya Bharat introduced a Bill entitled the

"Madhya Bharat Abolition of Jagirs Bill' before the

interim legislative assembly and the Bill was passed

into an Act on the 28th of August, 1951, and having been

reserved for the consideration of the President

received his assent on the 27th November, 1951. It was

published in the Madhya Bharat Gazette Extraordinary on

the 7th of December, 1951. The said Act, by section 3,

provided for a date to-be appointed by the Government by

notification for resumption of all jagir lands in the- State

and by section 4 it provided that as from such a date, the

right, title and interest of every jagirdar and of every

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other person claiming through him in his jagir lands

including forests, trees, fisheries, wells, tanks, ponds,

water-channels, ferries, pathways, village-sites, huts,

bazaars and mela grounds and mines and minerals whether

being worked or not, 'shall stand resumed to the State

free from all encumbrances. The Act also provided a

scheme for assessment of compensation m respect of

jagirs thus resumed.

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The appellants contested the validity of this law on a

number of grounds, and, inter alia, on the following

:--

(1) That the so-called legislature which passed the

Act was not a legislature within the meaning of the

covenant entered into by the Rulers of Gwalior, Indore

and certain other States in Central India for the

formation of the United State of Gwalior, Indore and

Malwa (Madhya Bharat) or_within the meaning of Schedule IV

of the said covenant.

(2) That the legislature of Madhya Bharat was, not

competent to enact the said Act and the said acquisition

or resumption of jagirs was not for a public. purpose and

there was no provision for payment of compensation as

understood in law, the compensation provided for being

wholly illusory and the Act was a fraud on the

Constitution.

Before the High Court, Mr. P.R. Das who appeared for

most of the petitioners, confined his arguments some of

the grounds mentioned in clause (2)above. His first

contention that the impugned Act was passed by a legislature

not validly constituted, he reserved for arguing before

this court as the Madhya Bharat High Court by a Full

Bench decision in Shree Ram Dubey v. The State of Madhya

Bharat(1), had already repelled that contention. The two

points argued by him before the High Court were:

(1) That there was no public purpose behind the

acquisition for the resumption of jagir lands and

therefore the Act was unconstitutional and illegal.

(2) That some of the provisions of the impugned Act were

ultra vires in so far as they constituted a fraud on the

Constitution. Both these points which, were urged

before the High Court were not argued before us by the

learned counsel. The point that there was no public

purpose behind the acquisition was abandoned because it

was concluded by the decision of this court in the Orissa

Zamindari appeals, K.C. Gajapati Narayan Deo and Others v.

The State of Orissa(2).

A.I.R. 1952 M.B. 57-178.

A.I.R. 1953 S.C. 375; [1954] S.C.R. 1.

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As regards the second point, as already indicated,

three provisions of the impugned Act had been declared void

by the High Court and Mr. Das contented himself by

accepting that decision. The 'State Government had

impugned the correctness of the decision of the High Court

declaring these three provisions of the Act to be void but

it also did not press that point. The result of these

concessions in this court is that the arguments in the

two appeals were limited to the first point urged in the

petition, namely, whether the impugned Act was passed by

a Legislature not validly constituted under the covenant

entered into by the Rulers of Madhya Bharat.

Mr. P.R. Das contended that as the Interim Legislative

Assembly was not constituted according to the provisions

of Schedule IV of the covenant it was a body of usurpers

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and therefore any laws made by it were wholly void and of

no effect whatsoever. It was urged that the two bodies,

viz. Praja Mandal and the Provincial Congress Committee

who, in two separate divisions, elected fourteen and six

members, did not constitute' an electoral college to fulfil

the requirement of clause 1 (c) of Schedule IV, and the

members elected could not be said to have been elected in

the manner prescribed by the Schedule and that the

Rajpramukh and the Government of India, in the absence of an

amending covenant, had no power to vary the provisions of

the Schedule. It was said that the object of clause 1

(c) of Schedule IV was that the election of 20 members

should be by an electoral college constituted by the

Rajpramukh in consultation with the Government of India to

represent the Covenanting States other than Gwalior and

Indore and that the election by the Praja Mandal and the

Congress Committee of 14 and 6 members was in clear breach

of the terms of the covenant and that in this manner no

representation was given to the minorities and full effect

was not given to the rule that the election should be by

proportional representation by means of single transferable

vote. The learned Attorney-General met these contentions by

urging, (1) that the question was not open having regard

to the provisions of article 385 of the Constitution of

India

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(2) that the election of 20 members representing the

eighteen States took place in literal compliance of the

covenant, (3) that in any event there was substantial

compliance with the covenant, and lastly (4) that the

declarations made in the Ordinance by the Rajpramukh and

the provisions contained in the Ordinance were conclusive

and were accepted by all the States concerned and could no

longer be challenged.

After a careful consideration of the respective

arguments addressed by Mr. P.R. Das and the learned

Attorney-General we have reached the conclusion that it

is not necessary to consider in detail all the points

discussed by the learned counsel, as in our judgment the

question seems to be concluded by the provisions of article

385 of the Constitution of India. There is no gainsaying the

fact that the election of 20 members to represent the 18

States was not made strictly in the manner indicated in

Schedule IV of the covenant, but it also cannot be

disputed, and in fact was not disputed before the High

Court, that the Legislative Assembly which passed the

impugned Act was on the 26th of January, 1950, in spite of

its defective constitution, in fact functioning as the

Legislature of the State of Madhya Bharat. It had been

declared to have come into existence by an Ordinance

promulgated by the Rajpramukh and its factual existence is

apparent from the laws that it made subsequent to its

formation.

Part XXI of the Constitution of India deals with

"Temporary and Transitional Provisions". About two dozen

articles in this Part concern themselves with the solution

of the problems of their interval in between the repeal of

the Government of India Act and the coming into being of

bodies and authorities formed by the Constitution. Until

the House or Houses of Legislature or bodies and

authorities formed by the Constitution could be duly formed

it was necessary to say with certain definiteness as to

what bodies or authorities would exercise and perform

the duties conferred by the different provisions of the

Constitution in the meantime. When a silent revolution

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was taking place and Princely kingdoms were fast

757

disappearing and a new democratic Constitution was being

set up and a provision had to be made for the interval

between the switch-over from one Constitution to

another, there was hardly any time to enquire and

consider whether the bodies or authorities or House or

Houses of Legislature formed under the old Constitutions

which were being scrapped had been formed in strict

compliance with the provisions of those Constitutions or

whether there were any defects in their formation. The

Constitution-makers therefore took notice of their

factual existence and gave them recognition under the

Constitution and invested the bodies that were actually

functioning as such, whether regularly or irregularly,

with the authority to exercise the powers and perform the

duties conferred by the provisions of the

Constitution. That is clearly the scheme of all the

articles mentioned in Part XXI of the Constitution.

Particular reference may be made to articles 379, 382 and

to article 385 which specifically governs the present case.

Article 379 is in these terms:

"(1) Until both Houses of Parliament have been duly

constituted and summoned to meet for the first session under

the provisions of this Constitution, the body

functioning as the Constituent Assembly of the Dominion of

India immediately before the commencement of this

Constitution shall be the provisional Parliament and

shall exercise all the powers and perform all the duties

conferred by the provisions of this Constitution on

Parliament.

Explanation.--For the purposes of this clause.

the Constituent Assembly of the Dominion of India

includes--

(i) the members chosen to represent any State or other

territory for which representation is provided under

clause (2), and

(ii) the members chosen to fill casual vacancies in the said

Assembly."

The provision made in this article in unambiguous terms

makes the body. functioning as the Constituent

Assembly, whether constituted perfectly or

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imperfectly and whatever its membership on the date

immediately before the commencement of the Constitution, as

the provisional Parliament and vests it with all the

functions and duties conferred by the provisions of

the Constitution on the Parliament. The President was

given power under the provisions of this article to add

members to this body to give representation to certain

States who were not previously represented, and it was

specifically prescribed that if there are any vacancies

then the vacancies could be filled up and the members

returned to fill these vacancies will be considered

members of the provisional Parliament. These specific

provisions are indicative of the fact that the

Constitution-makers, in enacting this article, took

notice of the factual existence of certain bodies without

concerning themselves with the question whether they

had been validly constituted under the Constitution that

brought them into being. Article 382 of the Constitution is

similarly worded. It provides that until the House or Houses

of the Legislature of each State specified in Part A of

the First Schedule has or have been duly constituted and

summoned to meet for the first session under the provisions

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of this Constitution, the House or Houses of the

Legislature of the corresponding Province functioning

immediately before the commencement of this Constitution

shall exercise the powers and perform the duties conferred

by the provisions of this Constitution on the House or

Houses of the Legislature of such State. Article 385 is in

exact conformity with the two earlier articles. It provides

that-

"Until the House or Houses of the Legislature of a

State specified in Part B of the First Schedule has or have

been duly constituted and summoned to meet for the first

session under the provisions of this Constitution, the body

or authority functioning immediately before the commencement

of this Constitution as the Legislature of the

corresponding Indian State shall exercise the powers and

perform the duties conferred by the provisions of this

Constitution on the House or Houses of the Legislature of

the State so specified."

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The whole intent and purpose of these articles was to

give recognition to those bodies or authorities or

House or Houses of Legislature which were actually

functioning before the 26th of January, 1950, and to

invest them with the powers conferred by the provisions of

this Constitution. The Constitution-makers wanted to

indicate the arrangements made by them for the interval

with certain amount of definiteness in order to avoid any

disputes during the interim period as to who the body or

authority was, to exercise the powers conferred by the

provisions of the Constitution. They therefore chose the

formula that whichever body or authority or House or Houses

of Legislature was actually functioning immediately

before the commencement of the Constitution would be the

body or authority or the House that would exercise the

powers and perform the duties conferred by the provisions

of this Constitution on the House, body or authority

specified in the Constitution. They did not take any

risk on this question and the bodies actually functioning

were, like persona designata, invested with powers

conferred by the Constitution. That being the scheme of this

Part and that being also the clear and unambiguous language

of article 385 it follows that the Madhya Bharat . Interim

Legislative Assembly that was actually functioning on

the 26h January, 1950, was invested by the Constitution of

India with powers conferred by the provisions of the

Constitution, irrespective of the fact whether it

had been properly constituted in accordance with

the terms of the covenant or not. The inquiry into this

question thus became barred by adopting this procedure.

Such a procedure was fully justified and was rounded

upon considerations of policy and necessity for, the

protection of the public and individuals whose interests

may be affected thereby. It is manifest that endless

confusion would have resulted if the Constitution had not

adopted that formula and had not barred an inquiry into all

questions as to the original formation of such bodies by

giving validity and recognition to those bodies or

authorities as were actually functioning on the 26th of

January, 1950. Not only did it give

760

validity and recognition to those bodies which were in fact

functioning. then but it also invested these designated

bodies and authorities with powers conferred by the

provisions of the Constitution itself. That being our view

as to the true meaning and 'intent of the language employed

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in article 385 of the Constitution it follows that the

contention raised by Mr. P.R. Das as to the defective

formation of the Interim Legislative Assembly of Madhya

Bharat has no validity. Even if that body was not formed

in strict compliance with the provisions indicated in

Schedule IV of the covenant its defective formation does

not affect the constitutionality of the impugned

statute. The impugned statute was passed in the year 1951

after the Constitution of India had given recognition to,

and conferred powers on, the Assembly under article 385 of

the Constitution. When it made this law it was exercising

its powers under the Constitution of India and not under the

covenant which brought it into existence. The result

therefore is that the only contention that Mr. P.R. Das

argued before us cannot be sustained and it must be held

that it is not well founded.

For the reasons given above we see no force in these two

appeals and they are therefore dismissed with costs.

Appeals dismissed.

Agent for the appellant in C.A. No. 4: 1. N. Shroff.

Agent for the appellant in C.A. No. 6 :Rajinder Narain.

Agent for the respondent: R.H.

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