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PETITIONER:

STATE OF SERAIKELLA

Vs.

RESPONDENT:

UNION OF INDIA AND ANOTHER(Suit No. 1 of 1950)STATE OF DHENK

DATE OF JUDGMENT:

06/04/1951

BENCH:

KANIA, HIRALAL J. (CJ)

BENCH:

KANIA, HIRALAL J. (CJ)

SASTRI, M. PATANJALI

MAHAJAN, MEHR CHAND

DAS, SUDHI RANJAN

BOSE, VIVIAN

CITATION:

1951 AIR 253 1951 SCR 474

CITATOR INFO :

R 1955 SC 540 (11)

RF 1957 SC 540 (79)

RF 1970 SC1446 (13)

RF 1971 SC 530 (232,317,364,367,370,373)

ACT:

Constitution of India, Arts. 363 (1), 374 (2)--Indian

States--Accession to India under Instruments of

Accession--Orders treating States as having merged in

India--Suit to declare orders ultra

475

vires and enforce rights under Instrument of

Accession--Suits filed in Federal Court before 26th January

1950--Jurisdiction of Supreme Court to try such suits--Scope

of Arts. 363 (1) and 374(2)

HEADNOTE:

Article 374 (2) of the Constitution of India provides

that all suits, appeals and proceedings pending in the

Federal Court at the commencement of this Constitution shall

stand removed to the Supreme Court and the Supreme Court

shall have jurisdiction to hear and determine the same.

Article 363 (1) provides that notwithstanding anything in

this Constitution, neither the Supreme Court nor any other

Court shall have jurisdiction in any dispute arising out of

any provision of a treaty, agreement or similar instrument

entered into or executed before the commencement of this

Constitution by any Ruler of an Indian State.

Certain States had acceded to the Dominion of India

under Instruments of Accession in August 1947. They were

treated as having merged in the Province of Bihar and were

administered as a part of that Province under Orders issued

under the Extra Provincial Jurisdiction Act, 1947, and s.

290-A of the Government of India Act, 1935 (as amended by

the Constituent Assembly Act of 1949). The States insti-

tuted suits in the Federal Court of India before the 26th

January, 1950, for a declaration that the various Orders

under which the States came to be administered as a part of

Bihar and the laws under which those Orders were made were

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ultra vires and void and the Province of Bihar had accord-

ingly no authority to carry on the administration of the

States. The suits stood transferred to the Supreme Court of

India under Art. 374 (2) of the new Constitution:

Held, per KANIA C.J., PATANJALI SASTRI J. and BOSE J.

(MAHAJAN J. dissenting).--That even though the suits were

instituted before the new Constitution came into force and

under Art. 374 (2) they stood removed to the Supreme Court,

nevertheless the jurisdiction of the Supreme Court under

Art. 874 (2) was controlled by Art. 363 (1) of the Constitu-

tion in view of the opening words of the latter namely,

"notwithstanding anything in this Constitution". As the

suits were really to enforce the plaintiff's rights under

their Instruments of Accession and the dispute between the

parties really arose out of those instruments, under Art.

363 (1) the Supreme Court bad no jurisdiction to hear the

suits. This view (lid not involve giving any retrospective

effect to Art. 361 (3). MAHAJAN J. (contra.)--Art. 363.

takes away the jurisdiction of the Supreme Court on the

subjects mentioned therein if suits about them were insti-

tuted after the 26th January, 1950, or disputes concerning

them arise alter that date, while Art. 874 (12) empowers the

Supreme Court to hear and determine suits which were pending

in the Federal Court on the 26th January, 1950, and which

that court was competent to hear and determine. There is no

conflict between

476

these articles, and the Supreme Court had jurisdiction to

hear the suit.

DAS J.--As the plaintiff States, by virtue of the States

Merger (Governor's Provinces) Order, 1949, were immediately

before the commencement of the new Constitution being admin-

istered as if they formed part of the Provinces of Bihar or

Orissa. the territories of Bihar and Orissa included the

territories of the plaintiff States under Art. 1 of the

Constitution read with the third paragraph of Part A of the

First Schedule. These States consequently ceased to be

States so far as the new Constitution is concerned, they had

no legal existence as acceding States, and could not there-

fore be recognised as such States by Courts, as Courts are

bound by the Constitution and cannot question the validity

of any of its provisions. The suits must therefore be

regarded as having abated.

JUDGMENT:

ORIGINAL JURISDICTION. Suits Nos. 1 to 7 of 1950.

The facts are stated in detail in the judgment of KANIA C.J.

N.C. Chatterjee (A. N. Roy Choudhury, with him) for the

plaintiffs in suits Nos. 1, 3, and 6.

Dr. N.C. Sen Gupta (A. N. Roy Choudhury, with him) for

the plaintiffs in suits Nos. 2, 4, 5, and 7.

M.C. Setalvad, Attorney-General for India (G. N. Joshi,

with him) for the defendants in all the suits.

1951. April 6. The following judgments were delivered

:--

KANIA C.J.--This is a suit filed on the 15th of January,

1950, under the Original Jurisdiction of the Federal Court

as it was functioning before the Constitution of India came

into force on the 26th January, 1950. The State of Serai-

kella was a State in Orissa and its Ruler was Raja Aditya

Pratap Singh Deo. On the 16th August, 1947, the plaintiff

State acceded to the Dominion of India by virtue of an

Instrument of Accession executed by its Ruler and accepted

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by the Governor-General of India under section 6 of the

Government of India Act, 1935. After reciting that under

the Indian Independence Act, 1947, the Dominion of India was

set up and that under the Government of India Act, 1935, as

adapted, it provided that an Indian State may accede to the

Dominion of India

477

by an Instrument of Accession, the Instrument stated that

the Raja acceded to the Dominion of India and that he ac-

cepted that the matters specified in the Schedule to the

Instrument were the matters with respect to which the Domin-

ion Legislature may make laws for the State. The three

principal heads mentioned in the Schedule to that Instru-

ment were Defence, External Affairs and Communications,

with 'partiCulars detailed under each of those heads. The

Instrument expressly provides that by executing the same the

Ruler shall not be deemed to be committed to the acceptance

of any future Constitution of India or to fetter his discre-

tion to enter into arrangements with the Government of India

under any such future Constitution. It further expressly

provides that nothing in the Instrument affects the continu-

ance of the sovereignty in and over the State, or save as

provided by or under the Instrument, the exercise of any

powers, authority and rights so far enjoyed by him as Ruler

of the State or the validity of any law then in force in the

State. It also provides that the terms of the Instrument of

Accession are not to be varied by any amendment of the

Government of India Act or of the Indian Independence Act,

1947, unless such amendment is accepted by the Ruler or by

an Instrument supplementary to the said Instrument. It was

denied in the plaint that any such supplementary instrument

was executed by the Ruler and no amendment of the aforesaid

Acts has been accepted by him or the plaintiff State. A

Standstill Agreement was also executed by the Ruler under

which it was agreed that matters of common concern and

specified in the Schedule to the Agreement would continue

between the Dominion of India and the said State until new

agreements were made in that behalf.

On the 15th December, 1947, an agreement is alleged to

have been entered into between the Governor General of India

and the Ruler of the plaintiff State. By that document the

Raja ceded to the Dominion Government full and exclusive

authority, jurisdiction and powers for and in relation to

the governance of

478

the State and agreed to transfer the administration of the

State to the Dominion Government on the 1st of January,

1948. Article 2 contained a provision for the Privy Purse of

the Raja and it is contended by the plaintiff that when the

Raja signed the document the figure in this clause had been

left blank. Under article 3 of that agreement, it was

provided that the Raja would be entitled to the full owner-

ship, use and enjoyment of all private properties belonging

to him on the date of the agreement and that by the 1st of

January, 1948, the Raja will furnish to the Dominion Govern-

ment an inventory of all immoveable properties, securities

and cash held by him as such private property. Under article

4, the personal privileges enjoyed by the Raja and the

members of his family mentioned therein had to continue.

On the 24th of December, 1947, an Act to provide for the

exercise of certain extra-provincial jurisdiction of the

Central Government (Act XLVII of 1947) was passed. Under

section 3 of that Act it was provided that it shall be

lawful for the Central Government to exercise extra-provin-

cial jurisdiction in such manner as it thinks fit and the

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Central Government may delegate any such jurisdiction as

aforesaid to any officer or authority in such manner and to

such extent as it thinks fit. Under section 4 it was pro-

vided that the Central Government may by notification in the

official Gazette make such orders as may seem to it expedi-

ent for the effective exercise of any extra-provincial

jurisdiction of the Central Government. A notification under

section 4 of that Act was thereafter issued by the Central

Government delegating, under section 3, the powers contained

in that Act to the Province of Orissa. On the 18th of May,

1948, that notification was cancelled and the powers in

respect of the two specified States including the plaintiff

State were delegated to the Province of Bihar. On the same

day the Government of Bihar passed an order called "The

Seraikella and Kharaswan States Order" providing for the

administration of the two States. On the 5th of January,

1949, the Legislative Assembly of India,

479

which was also functioning as the Constituent Assembly,

passed the Constituent Assembly Act I of 1949 and added

section 290-A to the Government of India Act, 1935. That

section runs as follows :--

"Administration of certain Acceding States as a Chief

Commissioner's Province or as part of a Governor's or Chief

Commissioner's Province'-

(1) Where full and exclusive authority, jurisdiction and

powers for and in relation to the Government of any Indian

State or of any group of such States are for the time being

exercisable by the Dominion Government, the Governor-General

may by Order direct

(a) that the State or the group of States shall be

administered in all respects as if the Stale or the group of

States were a Chief Commissioner's Province; or

(b) that the State or the group of States shall be

administered in all respects as if the State or the group of

States formed part of a Governor's or a Chief Commissioner's

Province specified in the Order:

Provided that if any Order made under clause (b) of this

sub-section affects a Governor's Province, the Governor-

General shall before making such Order, ascertain the views

of the Government of that Province both with respect to the

proposal to make the Order and with respect to the provi-

sions to be inserted therein.

(2) Upon the issue of an Order under clause (a) of sub-

section (1) of this section, all the provisions of this Act

applicable to the Chief Commissioner's Province of Delhi

shall apply to the State or the group of States in respect

of which the Order is made.

(3) The Governor-General may in making an Order under

sub-section (1) of this section give such supplemental,

incidental and consequential directions (including direc-

tions as_ to representation in the Legislature) as he may

deem necessary.

(4) In this section, reference to a State shall include

reference to a part of a State."

On the 27th of July, 1949, the Governor-General of India

promulgated an Order called the States Merger

480

(Governors' Provinces) Order of 1949. The result of that

was that the plaintiff State is claimed to have merged in

the Province of Bihar.

The plaintiff State contends that the Government of

Orissa wrongfully and illegally purported to administer the

plaintiff State by virtue of the Notification of the 23rd of

December, 1947, under Act XLVII of 1947. It is claimed that

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the Act was and is ultra vires and of no effect and not

binding on the plaintiff State. The alleged agreement of

the 15th of December, 1947, is contended to be void for want

of consideration and is inoperative. Indeed it is contended

that as the figure was left blank there was no agreement at

all. It is contended that on the 18th May, 1948, without

the consent and approval of the plaintiff State or its

Ruler, the Province of Bihar wrongfully and illegally took

over the administration of the State and passed the Serai-

kella and Kharsawan Administration Order, 1948. In paragraph

10 of the plaint it is contended that the Dominion of India

had no authority to go beyond the Instrument of Accession,

had no authority to delegate powers to the Province of Bihar

to administer the plaintiff State and the said Order, in any

event, is illegal and inoperative as it went beyond the

ambit of the Extra Provincial Jurisdiction Act, 1947. As

regards the Order issued by the Governor-General on the 27th

of July, 1949, it is contended that he had no authority or

power to promulgate the Order and the State Merger Order of

1949 purporting to be passed under section 290-A of the

Government of India Act, 1935, is also void. The enactment

of the Constituent Assembly Act I of 1949 is contended to be

ultra vires and illegal. That Act is further challenged on

the ground that it was enacted without the assent of the

Governor General of India. It is contended in the plaint

that the defendants, viz. the Union of India and the State

of Bihar, deny and are interested in denying the existence

or entity of the plaintiff State and in disputing the

rights, privileges, powers and prerogatives of its Ruler as

well as the right to the private properties as set out in

the annexure. The States Merger Order of

481

1949 is contended to be an abuse of power and authority and

a fraud on the Government of India Act, 1935, and the Indian

Independence Act, 1947. It is contended that the Government

of India or the Constituent Assembly had no authority to

pass any legislation on a matter not specified in the Sched-

ule to the Instrument of Accession. In paragraph 19 of the

plaint it is contended that the dispute between the parties

comprised and involved questions on which the existence or

extent of legal rights depends and the plaintiff State is a

party to the same. These disputes concern the interpretation

of the Government of India Act, 1935, and/or of an order

made thereunder and/or the interpretation of the Indian

Independence Act and/or an order made thereunder and/or the

extent of authority vested in the Dominion by virtue of the

Instrument of Accession of the plaintiff State. The prayers

are: (a)Interpretation of the relevant provisions of the

Government of India Act, 1935, the Indian Independence Act,

1047, and the States Merger Order, 1040. (b) For a declara-

tion that the Dominion Government had no authority to assume

any power or jurisdiction beyond the matters specified in

the Instrument of Accession and had no authority to delegate

any power in relation to the plaintiff State to the Provin-

cial Government of Bihar. (c) For a declaration that Act

XLVII of 1947, the Constituent Assembly Act I of 1949,

section 290-A of the Government of India Act, 1935, as

adapted, and the States Merger Order, 1949, are ultra vires,

illegal and inoperative in so far as they are made applica-

ble to the plaintiff State and Orders made thereunder as

also actions taken or purported to be taken thereunder; (d)

For a declaration that the Province of Bihar had no authori-

ty or jurisdiction to carry on the administration of the

plaintiff State and that the alleged merger was illegal and

unauthorized; (e) For a declaration as to the rights of the

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parties and as to the extent of the authority of the Domin-

ion of India over and in respect of the plaintiff State; (f)

For a declaration that the plaintiff State retained its

entity and territorial integrity, that its administration

should

482

in any event be carried on in the name of its Ruler and that

his rights and privileges as set out in annexure 'C' and his

private properties as set out in annexure 'D' remain unaf-

fected; and (g) For a declaration that the Province of Bihar

had no authority or jurisdiction over the plaintiff State

and that it should not interfere in any way with the State

or the sovereignty of its Ruler.

Six other suits by other States of the former Eastern

Agency were filed also before the Constitution of India came

into force on the 26th of January, 1950, on the same lines,

except that in four of them the agreement similar to the

agreement of the 15th December, 1947, is admitted to have

been executed by the Ruler and is admitted to be binding on

the plaintiff.

The material part of section 6 of the Government of

India Act, 1935, which provides for the accession of Indian

States, runs as follows :-

6. Accession of Indian States.--(1) An Indian State shall

be deemed to have acceded to the Dominion if the Governor-

General has signified his acceptance of an Instrument of

Accession executed by the Ruler thereof whereby the Ruler on

behalf of the State :--

(a) declares that he accedes to the Dominion with the

intent that the Governor-General, the Dominion Legislature,

the Federal Court and any other Dominion authority estab-

lished for the purposes of the Dominion shall, by virtue of

his Instrument of Accession, but, subject always to the

terms thereof, and for the purposes only of the Dominion,

exercise in relation to the State such functions as may be

vested in them by order under this Act; and

(b) assumes the obligation of ensuring that due effect

is given within the State to the provisions of this Act so

far as they are applicable therein by virtue of the Instru-

ment of Accession.

(2) An Instrument of Accession shall specify the matters

which the Ruler accepts as matters with respect to which the

Dominion Legislature may make laws for the State, and the

limitations, if any, to which the

483

power of the Dominion Legislature to make laws for the

State, and the exercise of the executive authority of the

Dominion in the State, are respectively to be subject.

(3) A Ruler may, by a supplementary Instrument executed

by him and accepted by the Governor-General, vary the In-

strument of Accession of his State by extending the func-

tions which by virtue of that Instrument are exercisable by

any Dominion authority in relation to his State.

* * *

(5) In this Act a State which has acceded to the Domin-

ion is referred to as an Acceding State and the Instrument

by virtue of which a State has so acceded, construed togeth-

er with any supplementary Instrument executed under this

section, is referred to as the Instrument of Accession of

that State ...... "

A supplementary Instrument executed under subsection (3)

by the Ruler and accepted by the Governor General is, by

virtue of sub-section (5), therefore to be considered a part

of the Instrument of Accession of that State. The supplemen-

tary Instruments signed by the four States only bring within

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the scope of discussion those supplementary Instruments on

the footing that they were a part of the Instrument of

Accession.

Written statements have been filed on behalf of the

defendants contesting the contentions raised in the plaint.

There are several contentions in respect of the jurisdiction

of the Court. Several contentions cover pure issues of law

and some raise issues of fact in respect of the document of

15th December, 1947. The parties agreed on the issues and

they have been filed in Court. It was further agreed between

the parties that issues 1, 3, 4, 5, 6 and 7 may be tried as

preliminary issues and we have heard counsel on those issues

fully. The first issue is in these terms:

"Whether, having regard to the subject-matter of the

suit and the provisions contained in article 363 (1) of the

Constitution of India, this Hon'ble Court has jurisdiction

to entertain the suit."

484

In the view I take of this issue I do not think it

necessary to discuss the other preliminary issues raised on

the question of jurisdiction. For determining this issue, it

may be noted that the Federal Court, prior to the 26th of

January, 1950, had original jurisdiction in respect of

matters covered by section 204 of the Government of India

Act. Under that section, that Court had jurisdiction in any

dispute between a State and the Dominion if and in so far as

the dispute involved any question (whether of law or fact)

on which existence or extent of a legal right depended,

provided that the said jurisdiction did not extend to a

dispute to which a State was a party unless the dispute was

covered by clause (a) (i) of the Proviso, which runs as

follows :--

"Provided that the said jurisdiction shall not extend

to-

(a) a dispute to which a State is a party, unless the

dispute-

(i) concerns the interpretation of this Act or of an

Order in Council made thereunder before the date of the

establishment of the Dominion, or of an order made thereun-

der on or after that date, or the interpretation of the

Indian Independence Act, 1947, or of any order made thereun-

der, or the extent of the legislative or executive authority

vested in the Dominion by virtue of the Instrument of Acces-

sion of that State; or..."

The rest of the section is not material. Section 204

(2) provided that the Federal Court in the exercise of its

original jurisdiction shall not pronounce any judgment other

than a declaratory judgment. The suit having been filed

prior to the 26th of January, 1950, the suit stood trans-

ferred to this Court under article 374 (2) of the Constitu-

tion of India. That article runs as follows:-

" 374. (2) All suits, appeals, and proceedings, civil or

criminal, pending in the Federal Court at the commencement

of this Constitution shall stand removed to the Supreme

Court, and the Supreme Court shall have jurisdiction to hear

and determine the same, and the

485

judgments and orders of the Federal Court delivered or made

before the commencement of this Constitution shall have the

same force and effect as if they had been delivered or made

by the Supreme Court."

Article 131 of the Constitution deals with the original

jurisdiction of the Supreme Court and its material portion

runs as follows :--

"Subject to the provisions of this Constitution, the Supreme

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Court shall ..... have original jurisdiction in any

dispute ......

(b) between the Government of India and any State or

States on one side and one or more other States on the

other ......

if and in so far as the dispute involves any question

(whether of law or fact) on which the existence of a legal

right depends:

Provided that the said jurisdiction shall not extend to

(i) a dispute to which a State specified in Part B of the

First Schedule is a party if the dispute arises out of any

provision of a treaty, agreement, covenant, engagement,

sanad or other similar instrument which was entered into or

executed before the commencement of this Constitution and

has or has been continued in operation after such commence-

ment."

The States specified in Part B of the First Schedule do

not mention any of the plaintiff States. Article 363 of the

Constitution of India runs as follows :--

"363. (1) Notwithstanding anything in this Constitution

but subject to the provisions of article 143, neither the

Supreme Court nor any other court shall have jurisdiction in

any dispute arising out of any provision of a treaty, agree-

ment, covenant, engagement, sanad or other similar instru-

ment which was entered into or executed before the commence-

ment of this Constitution by any Ruler of an Indian State

and to which the Government of the Dominion of India or any

of its predecessor Governments was a party and which has or

has been continued in operation after such commencement, or

in any dispute in respect of any right accruing under or any

liability or obligation

486

arising out of any of the provisions of this Constitution

relating to any such treaty, agreement, covenant, engage-

ment, sanad or other similar instrument. '

(2) In this article

(a) 'Indian State' means any territory recognised

before the commencement of this Constitution by His Majesty

or the Government of the Dominion of India as being such a

State; and

(b) 'Ruler' includes the Prince, Chief or other person

recognised before such commencement by His Majesty or the

Government of the Dominion of India as the Ruler of any

Indian State."

The first question arising for consideration is the true

interpretation of article 374 (2) of the Constitution of

India. It was argued that the Federal Court had jurisdic-

tion to try the suit as framed before the Constitution of

India came into operation. Under article 374 (2) that suit

stood removed to the Supreme Court and the question of

jurisdiction to try this suit at the present stage has to be

determined only having regard to the jurisdiction of the

Federal Court, because the trial of the suit was transferred

to the Supreme Court under this article. It was argued that

if there was any limitation on the jurisdiction of the

Supreme Court to hear such a suit, (if instituted in it

under its original jurisdiction), such limitation is not

relevant to be considered in respect of suits which stood

transferred to the Supreme Court under article 374 (2). In

other words, in respect of such suits the Supreme Court had

a wider jurisdiction as compared with the jurisdiction of

the Federal Court, if its jurisdiction is construed as

limited by virtue of the different articles of the Constitu-

tion. In this connection, some reliance was placed on the

use of the word 'jurisdiction ' as connected with the Su-

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preme Court in article 374 (2). In my opinion, this argument

is unsound. Article 374 is in the Part dealing with tempo-

rary and transitional provisions. In article 374 (1) it is

provided that the Judges of the Federal Court holding office

before the commencement of the Constitution, unless they

have

487

elected otherwise, become Judges of the Supreme Court.

Article 874 (2), in my opinion, similarly provides, firstly,

for the removal of all suits, appeals and proceedings, civil

or criminal, pending in the Federal Court to the Supreme

Court and, secondly, provides that the Supreme Court shall

have jurisdiction to hear and determine these matters. It

may be noticed that in this clause provision is made not

only in respect of suits but of civil and criminal appeals

and also of other pending proceedings. By providing only

for the removal of these matters to the Supreme Court,

there will remain a lacuna, if it was not further stated

that after such removal the Supreme Court shall have juris-

diction to try the matters. It is from that point of view

only that, in my opinion, the Constitution states that the

Supreme Court shall have jurisdiction to hear and determine

the same. I think it is not correct to read those words as

giving to the Supreme Court an extended jurisdiction in

these matters. Two stages have therefore to be considered

in determining the operation of this clause: (1) whether the

suits, appeals or proceedings, which were pending before the

Federal Court, were within the jurisdiction of the Federal

Court; and (2) whether on removal the Supreme Court has

jurisdiction to hear and determine the same having regard to

all the provisions of the Constitution relating to the

jurisdiction of the Supreme Court. It must be noticed that

the Supreme Court was a new Court established by the Consti-

tution of India. It had no existence before that. The juris-

diction of that Court has therefore to be ascertained by

considering all the relevant articles of the Constitution of

India. It is in that light that the provisions of article

363 have to be read and interpreted.

Before doing so I think it is essential to bear in mind

the political background. Prior to August, 1947, British

India, as it was then described, was governed under the

Government of India Act, 1935. Indian States, as they were

then described, were independent States not governed by the

Government of India. They were under the suzerainty of His

Majesty the King and their

488

administration was controlled under the advice of the Polit-

ical Department of the Government of India, on the footing

that the King was the Sovereign and had the right to exer-

cise suzerain powers over those States. On the passing of

the Indian Independence Act, 1947, from the 15th August,

1947, the British Parliament and the King ceased to have

power to make any laws for India or make any changes in its

Constitution. These were left to India. As regards the

Indian States, while provision continued in the Government

of India Act for the Rulers signing instruments of acces-

sion, no suzerain rights were given to the Dominion of India

by the Indian Independence Act. If, therefore, the Dominion

of India or any of these States committed acts of aggression

or territorial trespass, there was no law, the enforcement

of which could give either party a relief and there was no

court also which could give such a relief. Section 204 of

the Government of India Act also did not provide any relief

to any of these Indian States unless they signed an Instru-

ment of Accession. With the passing of the Constitution of

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India, India became a Sovereign Independent Republic. If

that Dominion or Republic committed any acts of aggression

towards a neighbouring Indian State (as it is convenient to

describe under the circumstances) the Supreme Court has no

jurisdiction to give relief to the Indian State. As noticed

above, its jurisdiction under article 131 is limited and

even in respect of a State specified in Part B of the First

Schedule if a dispute arises out of any provision of a

treaty, agreement, covenant, engagement, sanad or other

similar instrument, it will not be entertained by this Court

if the conditions of the proviso apply to the same. It is

with this background that we have to read article 363 of

the Constitution.

The opening words of that article in terms override all

provisions of the Constitution, but are made subject only to

the provisions of article 143 which enables the President to

consult the Supreme Court on matters referred to it. These

all embracing opening words of article 363 therefore clearly

override the operation of

439

article 374(2) also. The result is that article 363 is the

controlling article over article 374(2) also. The jurisdic-

tion of the Supreme Court having been stated in articles

131-1a6, article 363 provides that notwithstanding anything

contained in those articles and other articles of the Con-

stitution, neither the Supreme Court nor any other court

will have jurisdiction in any dispute arising out of any

provision of a treaty, agreement, covenant, engagement,

sanad or other similar instrument which was entered into or

executed before the 'commencement of this Constitution and

which has or has been continued in operation after such

commencement. If therefore the dispute arises in respect of

a document of that description and if such document had been

executed before the Constitution by a Ruler and which was or

had continued in operation after such commencement, this

Court has no jurisdiction to determine such issue. It was

argued that as the agreement had to be in operation after

the commencement of the Constitution, no dispute can arise

in respect of such document before the commencement of the

Constitution and therefore as the dispute in the present

case had arisen before the commencement of the Constitution,

article 363 had no operation. In my opinion, this is not a

correct reading of article 363 (1). The time factor is

related only to the document in question and not the dis-

pute. It is provided that such document should have been

executed before the Constitution came into force and has to

be in operation after the Constitution, but the dispute,

which is the subject-matter of the litigation, may arise

before or after.

It was argued that the article is prospective and not

retrospective. Therefore it only covers the cases which are

filed in the Supreme Court after the Constitution comes into

force and does not affect suits filed in the Federal Court

before the Constitution of India came into operation. In my

opinion this argument is based on a mistaken meaning given

to the words "prospective" and "retrospective ". It is not

disputed that the Constitution is prospective. The question

however

490

is that the Supreme Court having been created by the Consti-

tution itself, on the day the Court proceeds to determine

the matter, what, according to the Constitution of India, is

the jurisdiction of this Court. This approach does not make

the provision retrospective. In this connection, the simi-

larity in language of articles 368 (1) and 131 proviso (i)

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may be noted. Considered in that way, the only question

which remains for decision is whether on the structure of

the plaint, 'the dispute raised by the suit arises out of

the provision of a treaty, agreement, covenant, engagement,

sanad or any other similar instrument. I have already no-

ticed above that the dispute in respect of the agreement of

the 15th December, 1947, is immaterial for the present

discussion. If the plaintiff repudiates that agreement he is

seeking to enforce his rights after ignoring the same. If

the plaintiff (as noticed in four of the suits) relies on

this agreement, it becomes a part of the Instrument of

Accession under section 6 (5) of the Government of India

Act, 1935, and the dispute will still have to be considered

having regard to the terms of the two documents, viz., the

original Instrument of Accession and the supplementary

Instrument. The question thus resolves itself into an

analysis of the plaint and to find out what the plaintiff

seeks to get by his suit. Apart from the fact that in pray-

ers (f) and (g) of his plaint he seeks to enforce his rights

under the Agreement of the 15th December, 1947, it appears

clear that the whole ambit of the suit is to enforce his

Instrument of Accession. The plaintiff contends firstly that

it had signed the Instrument of Accession through its Ruler.

The State next complains that, acting beyond the powers

given over under the Instrument of Accession, the Dominion

of India and the State of Bihar are trespassing wrongfully

on its legislative and executive functions, that the Domin-

ion of India and the State of Bihar are making laws which

they have no power 'to make, having regard to the Instrument

of Accession, and are wrongfully interfering with the admin-

istration of the State beyond the rights given to them under

the Instrument of Accession. The whole plaint is

491

nothing else except the claim to enforce the plaintiff's

right under the Instrument of Accession. The dispute there-

fore in my opinion clearly is in respect of this Instrument

of Accession and is covered by article 363 (1) of the Con-

stitution of India. The question of the validity of the

different enactments and orders is also based on the rights

claimed under the Instrument of Accession so far as the

plaintiff is concerned. On the side of the defendants, the

position is that they admit the Instrument of Accession and

they do not claim that they are exercising the disputed

rights under that Instrument. Their contention is that the

Agreement of the 15th of December, 1947, was validly signed

and is binding and enforceable against the plaintiff. The

defendants contend that their action in passing the disput-

ed legislation and orders and the action in taking over the

administration are all based on that Agreement of 15th

December, 1947. If the plaintiff contends that Agreement

is not binding on it, it cannot enforce its rights under the

original jurisdiction of the Court. If the plaintiff has a

grievance and a right to a relief which the defendants

contend it has not, the forum to seek redress is not the

Supreme Court exercising its original jurisdiction on the

transfer of the suit from the Federal Court. According to

the defendants, the situation in those circumstances will be

of a Sovereign Independent State trespassing on the terri-

tories, powers and privileges of another neighbouring inde-

pendent State. To redress a grievance arising out of such

action on the part of the defendants, the Supreme Court is

not the forum to give relief. The issue is answered in the

negative, costs in the cause.

VIVIAN Bose J.--I agree.

PATANJALI SASTRI J.--This is a batch of suits brought by

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plaintiffs claiming to be Acceding States for certain de-

claratory reliefs in regard to the alleged wrongful merger

of their respective territories in the territories of the

adjoining Provinces of Bihar and Orissa. The Dominion of

India was impleaded as the

492

first defendant, and the Province of Bihar or the Province

of Orissa, as the case may be, as the second defendant.

The suits were instituted in the Federal Court of India

under section 204 of the Government of India Act, 1935,

shortly before the commencement of the new Constitution.

Apart from certain minor variations, the substance of the

plaintiff's case in each suit, shorn of verbiage, is that

the merger and the taking over of the administration of the

territory concerned, carried out in purported exercise of

powers conferred by the States Merger (Governors' Provinces)

Order, 1949, made by the Governor-General of India under

section 290-A of the Government of India Act, 1935, was a

breach of the terms of the Instrument of Accession executed

by the Ruler and accepted by the Governor General in August,

1947, which continued the sovereignty of the Ruler in and

over the State, and that all notifications, orders or enact-

ments issued or made in violation of the rights and obliga-

tions flowing out of that Instrument were ultra vires, void

and inoperative. In the plaints in Suits Nos. 1, 2 and 8

reference was made to an agreement entered into between the

Governor-General and the Ruler concerned in December, 1947,

and it was alleged that it was inoperative and void because

it was not a concluded agreement and, in any case, not

supported by consideration. In the other Suits Nos. 4, 5, 6

and 7 that agreement was fully admitted, but "in spite of

the agreement aforesaid" it was contended that "the actions

taken by the defendants including the promulgation of the

orders, notifications and legislation mentioned here in are

wrongful, illegal and ultra vires". The crucial prayer in

all the suits was "a declaration that the Dominion of India

has no authority vested in it to assume any power or juris-

diction beyond the matters specified in the Instrument of

Accession and had no authority to delegate any power or

powers in relation to the plaintiff State to the Provincial

Government" of Bihar or of Orissa, as the case may be. The

other reliefs asked for were merely ancillary and consequen-

tial.

493

The defence, in the main, was based on the aforesaid

agreement of December, 1947, under which, it was alleged,

the plaintiff in each case "ceded full and exclusive author-

ity, jurisdiction and powers for and in relation to the

governance of the plaintiff to the Government of India with

effect from 1st January, 1948". It was claimed that, from

that date and particularly from January 26, 1950, when the

Constitution of India came into force and made the territory

of the plaintiff an integral part of the territory of the

State of Bihar (or of Orissa, as the case may be), the

plaintiff ceased to be a distinct legal unit and had no

capacity to maintain the suit. The said agreement was a

political agreement and not a civil contract requiring

consideration for its effectiveness and, in any case, was a

concluded agreement supported by consideration. In view of

that agreement, all the actions, notifications and orders

referred to in the plaint proceeded "on the basis of the

supersession of the said Instrument of Accession by the

consent of the parties" and they were legal, valid and

operative to bind the plaintiff. In a supplementary written

statement the defendants raised the plea that "this Court

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had no jurisdiction to entertain the suit having regard to

the subject-matter of the suit and the provisions contained

in article 363 (1) of the Constitution of India".

On the 9th December, 1950, by consent of both sides, it

was ordered by the Judge in Chambers that the suit should be

heard on the preliminary issue, namely, "whether having

regard to the subject matter of the suit and the provisions

contained in article 363 (1)of the Constitution of India,

this Court has jurisdiction to entertain the suit". When

the matter was taken up for hearing on 5th March, 1951, it

was considered desirable that issues should be settled on

all matters in controversy in the suits, and all the issues

relating to the maintainability of the suits, including the

issue of jurisdiction, should be tried as preliminary

issues, and the suits were adjourned to the 7th March for

that purpose. The parties then filed seventeen agreed

issues as arising out of the

494

pleadings, and they further agreed that issues 1, 3, 4, 5, 6

and 7 might be tried first. These issues are as follows:

1. Whether having regard to the subject matter of the

suit and the provisions contained in article 363 (1) of the

Constitution of India, this Hon'ble Court has jurisdiction

to entertain the suit ?

3. Whether the Federal Court had jurisdiction to enter-

tain the suit under section 204 of the Government of India

Act, 1935, and particularly in regard to the questions as to

the existence and validity of the agreement of merger ?

4. Whether this Court has jurisdiction to entertain the

suit?

5. Whether the suit is maintainable in view of the

absence of the requisite notice to the defendants under

section 80 of the Civil Procedure Code ?

6. Whether having regard to the provisions of the Con-

stitution, the plaintiff has a legal capacity and is enti-

tled to maintain the suit ?

7. Whether this Court is competent to examine the valid-

ity of section 290-A of the Government of India Act, 1935,

enacted by the Constituent Assembly ?

As I am of opinion that issue No. 1 should be found for

the defendants and the suits must fail on that ground,

I do not propose to consider the other issues, although

arguments have been addressed to us on all of them. The

determination of issue No. 1 turns on the proper construc-

tion of articles 363 (1) and 374 (2) which read thus:

363(1) Notwithstanding anything in the constitution but

subject to the provisions of article 143, neither the Su-

preme Court nor any other Court shall have jurisdiction in

any dispute arising out of any provision of a treaty, agree-

ment, covenant, engagement, sanad or other similar instru-

ment which was entered into or executed before the commence-

ment of this Constitution by any Ruler of an Indian State

and to which the Government of the Dominion of India or any

of its predecessor Governments was a party and which has

498

or has been continued in operation after such commencement,

or in any dispute in respect of any right accruing under or

any liability or obligation arising out of any of the provi-

sions of this Constitution relating to any such treaty,

agreement, covenant, engagement, sanad or other similar

instrument."

"374. (2) All suits, appeals and proceedings, civil or

criminal, pending in the Federal Court at the commencement

of this Constitution shall stand removed to the Supreme

Court, and the Supreme Court shall have jurisdiction to hear

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and determine the same, and the judgments and orders of the

Federal Court delivered or made before the commencement of

this Constitution shall have the same force and effect as if

they had been delivered or made by the Supreme Court."

As already pointed out, the sheet anchor of the plain-

tiffs' case is the Instrument of Accession, which, according

to them, continues to operate in full force. They contend

that "the Dominion of India or the Constituent Assembly of

India has no authority or power under the Indian Independ-

ence Act or otherwise to enact section 6 of the Constituent

Assembly Act I of 1949 or to introduce section 290-A into

the Government of India Act, 1935, or to legislate for the

plaintiff State in any manner except with reference to the

matters specified in the Schedule to the said Instrument of

Accession" (paragraph 18 of the plaint in Suit No. 1 of

1950). They proceed to state that "the disputes between the

parties comprise and involve questions on which the extent

or existence of a legal right depends and such disputes, to

which the said Acceding State is a party, concern (among

other things) the extent of authority vested in the Dominion

by virtue of the Instrument of Accession of the plaintiff

State." And prayer (b), to which reference has been made

already, is for "a declaration that the Dominion Government

has no authority vested in it to assume any power or juris-

diction beyond the matters specified in the Instrument of

Accession" (paragraph 21). These passages are reproduced in

all the plaints. On the other hand, the mainstay of the

496

defence is the subsequent agreement of December 1947, and it

is claimed that the States Merger (Governors' Provinces)

Order, 1949, under which the impugned merger was effected,

was made "on the basis of the supersession of the said

Instrument of Accession by the consent of parties". (Vide

paragraph 21 of the written statement of the first defendant

which was adopted by the second defendant). And, although

the defendants proceeded to state, on the aforesaid basis,

that there was no dispute regarding the Instrument of Acces-

sion, inasmuch as that basis is repudiated in the plaints,

such repudiation obviously raises the dispute whether the

Instruments of Accession are still in force or have been

superseded. That dispute "arising", as it does, "out of' the

Instrument of Accession in each case falls within the pur-

view of article 363 (1).

It was said that the suits involved also certain other

disputes not falling within article 363 (1) such as, for

instance, those relating to the agreement of December, 1947,

and the validity of the Extra Provincial Jurisdiction Act,

1947, of section 290-A of the Government of India Act, 1935,

and of the States Merger (Governors' Provinces) Order, 1949,

etc. The controversies regarding these matters are but

contentions whereby the parties seek to establish, on the

one hand, that the Instrument of Accession still governs

their mutual rights and obligations and, on the other, that

that Instrument stands superseded and is no longer in force.

Issues have no doubt been framed in regard to these matters

but they cannot in my opinion, be considered to be disputes

for the purposes of article 131 or article 363 (1). These

articles deal with the jurisdiction of courts and they

envisage disputed claims to substantive legal rights. The

claims in these suits are undoubtedly based on the respec-

tive Instruments of Accession and they are repudiated

because those Instruments of Accession are said to have

'been superseded by reason of the alleged agreement of

December, 1947. These claims are disputes to which article

363 (1) clearly applies. The other so-called disputes are

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only incidental and ancillary controversies

497

raised with a view to support or overthrow the claims and

cannot, in my opinion, affect the operation of the bar

under that Article any more than, for instance, issue No. 5

relating to the necessity for notice to the defendants under

section 80 of the Civil Procedure Code.

Nevertheless, it is contended, the article has no appli-

cation here and it cannot operate retrospectively and ap-

plies only to disputes arising after the commencement of the

Constitution. I am unable to accept this restricted inter-

pretation of article 363 (1). While the Article undoubtedly

postulates the continued operation of the treaties, agree-

ments, etc., entered into or executed before the commence-

ment of the Constitution and giving rise to the disputes, it

does not require, as a condition of its application, that

such disputes should arise after the commencement of the

Constitution. I see no reason for importing a restriction

which a plain grammatical construction of the language

employed does not warrant. It is not correct to say that

the wider construction would make the operation of the

article retrospective, for the bar to interference by the

court operates only after the Constitution came into force

irrespective of the disputes concerned having arisen before

or after the commencement of the Constitution. It was said

that the article should not be construed so as to bar the

trial of pending suits or proceedings. But this is not a

case of a pending action in a court which continues to

function. The Federal Court, in which the suits were pend-

ing, and which had exclusive jurisdiction to deal with them,

was abolished and a new court, the Supreme Court of India,

was created with original jurisdiction strictly limited to

disputes relating to legal rights between States recognised

as such under the Constitution. But as the States specified

in Part B of the First Schedule had a semi-sovereign status

before the Constitution, agreements with them were in the

nature of international treaties and covenants, and disputes

arising out of them would not lie in municipal courts. That

principle is given effect to, so far as the Supreme Court's

498

original jurisdiction is concerned, by the proviso to arti-

cle 131 which defines such jurisdiction and, in regard to

all courts and in respect of all proceedings, by article 363

(1). The reason for applying that principle is greater, not

less, in regard to such disputes arising bfore the Constitu-

tion when these States, then known as Indian States, enjoyed

a higher degree of political freedom. Furthermore, the

construction contended for by the plaintiffs as applied to

article 131 would mean that the Court would, notwithstanding

the proviso, have jurisdiction in respect of such disputes,

provided they arose before the commencement of the Constitu-

tion. If that had been intended, one would expect that such

jurisdiction would have been conferred by positive enact-

ment, instead of being left to be derived by implication

from a proviso intended to delimit the jurisdiction con-

ferred by that article. It seems to me, therefore, that the

proviso to article 131 must be construed as applicable to

disputes of the kind mentioned arising both before and.

after the commencement of the Constitution. If so,

article 363 (1) must receive the same construction, the

language employed being essentially the same.

Even so, it is next contended, article 368, which enacts

a general rule of non-interference by courts in certain

classes of disputes, cannot control the operation of article

874 (2), which is a special provision providing that suits,

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appeals and proceedings pending in the Federal Court at the

commencement of the Constitution shall stand removed to the

Supreme Court and that the Supreme Court shall have juris-

diction to hear and determine the same. There would be

considerable force in this argument but for the opening

words of article 363 (1), namely, "notwithstanding anything

in :this Constitution." These words clearly indicate that

the bar to the exercise of jurisdiction enacted in article

363 controls the operation of article 374 (2)and excludes

the rule of construction invoked by the plaintiffs.

I find issue No. 1 for the defendants.

499

MAHAJAN J.--On the 16th January, 1950, ten days before

the inauguration of the Constitution of India, the State of

Seraikella (an Orissa State attached to the Eastern States

Agency) brought a suit in the Federal Court of India against

the Dominion of India and the Province of Bihar for the

following reliefs:

(a) Interpretation of the relevant provisions of the

Government of India Act, 1935, the Indian Independence Act,

1947, and of the States Merger (Governors' Provinces) Order,

1949;

(b) Declaration that the Dominion Government has no

authority vested in it to assume any power or jurisdiction

beyond the matters specified in the Instrument of Accession

and had no authority to delegate any power or powers in

relation to the plaintiff State on the Provincial Government

of Bihar or Orissa;

(c) Declaration that the Extra Provincial Jurisdiction

Act, XLVII of 1947, the Constituent Assembly Act, 1 of 1949,

section 290-A of the Government of India Act,. 1935, and the

States Merger (Governors' Provinces) Order, 1949, are ultra

vires, illegal and inoperative in so far as they are made

applicable to the plaintiff State and that all orders

made or purported to be made and/or all actions taken or

purported to be taken thereunder are also illegal and inop-

erative;

(d) Declaration that the Province of Bihar has no au-

thority or jurisdiction to carry on the administration of

the plaintiff State and that the alleged merger of the said

State in the Province of Bihar is illegal and unauthorized

and is not binding on the said State and its Ruler;

(e) Declaration as to the rights of the parties and as

to the extent of authority of the defendant Dominion of

India over and in respect of the plaintiff States;

(f) Declaration that the plaintiff State retains its

entity and territorial integrity that its administration

should in any event be carried on in the name of its Ruler

and that his rights and privileges as set out in

500

annexure "C" and his private properties as set out in annex-

ure ''D" remain unaffected;

(g) Declaration that the Province of Bihar has no au-

thority or jurisdiction over the plaintiff State and that it

should not interfere in any way with the said State or the

sovereignty of its Ruler."

All the different reliefs set out above in substance

converge on the relief stated in clause (f). The plaintiff

wants a declaration from this court to the effect that the

State of Seraikella retains its entity and territorial

integrity and has not integrated itself with the territo-

ries of the Indian Dominion.

This suit was pending in the Federal Court on the 26th

January, 1950, and under the provisions of article 374 (2)

of the Constitution it has to be heard and determined by

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this Court. The plaintiff claims the above reliefs on the

following allegations:

(1) That on the 16th August, 1947, the plaintiff State

acceded to the Dominion of India under the terms of an

Instrument of Accession (Exhibit A) executed by its Ruler

and accepted by the Governor-General of India, that the

said instrument could not be added to or amended unless

such addition or amendment was accepted by the Ruler by a

supplementary Instrument; that no such supplementary

Instrument was ever executed or accepted by the Ruler;

(2) That from 31st August, 1947, the Government of

Orissa wrongfully and illegally purported to administer

the plaintiff State by virtue of an alleged delegation of

authority by the Dominion Government by a notification dated

23rd December, 1947, issued under an Act called the Extra

Provincial Jurisdiction Act, XLVII of 1947, that the said

Act is ultra vires and of no effect and does not bind the

plaintiff and that the Act was not authorised by the Instru-

ment of Accession;

(3) That the defendant claims to rely for the validity

of its wrongful acts on an alleged agreement of 15th Decem-

ber, 1947, but the same is void and

501

inoperative and that it never became a concluded contract

between the parties;

(4) That on the 18th May, 1948, the Province of Bihar

wrongfully and illegally took over the administration of the

State and issued an administrative order under Act XLVII of

1947, that the Dominion of India had no authority beyond the

Instrument of Accession to delegate its power to the Prov-

ince of Bihar to administer the plaintiff State;

(5) That on the 26th July, 1949, the Governor General

wrongfully and illegally promulgated an order called the

States Merger Order of 1949, under which the State was

illegally merged in the Province of Bihar, that this order

was made under section 290-A of the Government of India Act

which section was introduced in that Act by section 6 of the

Constituent Assembly Act, I of 1949, which was ultra vires

and illegal, that the Dominion of India had no authority to

bring the plaintiff State within the provisions of section

290-A of the Government of India Act, that the Constituent

Assembly Act, I of 1949, was inoperative as it was enacted

without the consent of the Governor-General, that the Merger

Order prejudicially affects the existence and entity of the

State, its position and status and goes beyond the ambit of

section 290-A. Shorn of all its verbiage, the plaint in

substance denies the agreement of the 15th December, 1947,

on the foot of which the plaintiff State was integrated with

the territories of the Indian Dominion and on the basis of

which Act XLVII of 1947 was made applicable to it, and the

notifications mentioned in the plaint were issued. On the

basis of the same agreement section 290-A of the Government

of India Act was also made applicable to the plaintiff

State. By reason of the denial of the agreement of the 15th

December it is asserted by the plaintiff that the actions of

the Dominion Government in first merging the plaintiff State

with the Province of Orissa and subsequently merging it with

the State of Bihar is unlawful and illegal; in other words,

the plaintiff alleges that in the absence Of any supplemen-

tary agreement as contemplated by

502

section 6, sub-section (3), of the Government of India Act,

1935, the Dominion of India had no authority whatsoever to

bring the plaintiff State within the ambit of the different

statutes mentioned above and that all its acts in depriving

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the State of its legal entity are acts in excess of the

terms of the Instrument of Accession and amount to usurpa-

tion of the sovereignty of the plaintiff State which was

retained by it under that Instrument and that being so, the

plaintiff is entitled to a declaration from this Court to

the effect that the plaintiff State still retains its entity

and territorial integrity and that the various orders and

laws under which it has been integrated with the State of

Bihar are void and ultra vires and are acts of encroachment

on the sovereignty of the State. Shortly stated, the plain-

tiff seeks by this suit to specifically enforce the terms of

the Instrument of Accession by denying the existence of the

agreement of 15th December, 1947, or by pleading its inva-

lidity.

The suit brought against the Dominion of India and the

Province of Bihar has now to be continued and determined

against the Government of the Union of India and the State

of Bihar in view of the provisions of article 300 of the

Constitution. Both the defendants contested the suit on

similar grounds. The following agreed issues between the

parties bring out the points in dispute that arise out of

the pleadings:

1. Whether having regard to the subject matter of the

suit and the provisions contained in article 363 (1) of the

Constitution of India, this Hon'ble Court has jurisdiction

to entertain the suit ?

2. Whether I the plaintiff had ceased to be an acceding

State and a distinct legal entity at the date of the insti-

tution of the suit ?

3. Whether the Federal Court had jurisdiction to enter-

tain the suit under section 204 of the Government of India

Act, 1935, and particularly in regard to the questions as to

the existence and validity of the agreement of merger ?

503

4. Whether this Court has jurisdiction to entertain the

suit ?

5. Whether the suit is maintainable in view of the

absence of the requisite notice to the defendants under

section 80 of the Civil Procedure Code ?

6. Whether having regard to the provisions of the Con-

stitution, the plaintiff has a legal capacity and is enti-

tled to maintain the suit ?

7. Whether this Court is competent to examine the valid-

ity of section 290-A of the Government of India Act, 1935,

enacted by the Constituent Assembly?

8. Whether the States Merger (Governors' Provinces)

Order dated the 27th July, 1948, made by the Governor-Gener-

al under section 290-A of the Government of India Act, 1935,

is valid and competent ?

9. Whether the Extra Provincial Jurisdiction Act, 1047,

was ultra vires and invalid ?

10. Whether the delegation of authority by the Govern-

ment of India to the Government of Orissa was ultra vires

and illegal ?

11. Whether the Constituent Assembly was competent to

enact the Constituent Assembly Act I of 1949 under the

provisions of the Indian Independence Act ?

12. Whether the Seraikella and Kharsawan States (Amend-

ment Act) Order, 1948, is ultra vires and goes beyond the

ambit of the Extra Provincial Jurisdiction Act, 1947 ?

13. Whether the plaint discloses any cause of action ?

14. Whether the agreement dated 15th December, 1947, is a

concluded agreement between the parties ?

15. Whether the agreement dated 15th December, 1947, is

void and inoperative for want of consideration ?

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16. Whether the agreement dated I5th December, 1947, is a

political agreement and not a civil contract?

17. Whether the administration of the plaintiff was

handed over to the Government of Bihar under

65

504

Notification No. 217-P dated 18th May, 1948, in consultation

with the Ruler of the plaintiff State ?

With the consent of parties it was decided to hear

arguments on issues 1, 3, 5, 6 and 7 as they could be decid-

ed without taking any evidence.

Issue 1: As regards this issue, it was contended by the

learned Attorney-General that this Court has no jurisdiction

"to determine any dispute arising out of any provision of a

treaty, agreement, covenant, engagement, sanad or other

similar instrument which was entered into or executed before

the commencement of this Constitution by any Ruler of an

Indian State and to which the Government of the Dominion of

India... ...was a party and which has or has been continued

in operation after such commencement..., and that the

present suit relates to a dispute of this nature and though

the suit is removed to the records of this Court from the

Federal Court, this Court must decline to hear it. Article

363 on the basis of which this contention is raised provides

thus:

"Notwithstanding anything in this Constitution but

subject to the provisions of article 143, neither the Su-

preme Court nor any other court shall have jurisdiction in

any dispute arising out of any provision of a treaty, agree-

ment ......... which was entered into or executed before

the commencement of this Constitution by any Ruler of an

Indian State and to which the Government of the Dominion of

India or any of its predecessor Governments was a party and

which has or has been continued in operation after such

commencement ...... ''

The learned Attorney-General pointed out that particular

subjects were removed from the jurisdiction of this Court

and it had no power or authority to adjudicate on them

notwithstanding any other provision in the ConstitUtion to

the contrary. The learned counsel for the plaintiff contro-

verted this contention and urged that article 363 of the

Constitution had no retrospective effect and could not

affect Suits that were pending in the Federal Court and

505

which under the provisions of article 374 (2) were removed

to the Supreme Court and regarding which jurisdiction was

conferred on it under the provisions of that article. It was

said that article 363 could only have application to suits

or disputes brought or raised after the 26th January, 1950,

and not to suits that had already been brought before that

date. It was further contended that the plaintiff's suit did

not arise out of any treaty or agreement inasmuch as it

denied the very existence of such a treaty or agreement. It

was further pointed out that the suit did not relate to any

of the subjects that were within the scope of this article.

In order to appreciate these contentions it is necessary to

refer to article 374 (2), which provides as follows:--

''All suits, appeals and proceedings, civil or criminal,

pending in the Federal Court at the commencement of this

Constitution shall stand removed to the Supreme Court, and

the Supreme Court shall have jurisdiction to hear and deter-

mine the same..."

The question for decision under this issue concerns the

true scope of the provisions' of articles 363 and 374 (2) of

the Constitution. It is easy to frame difficult conundrums

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on the material offered by the two articles in question but

when one considers them without a desire for controversy,

they soon open to a clear and simple meaning. Article 363

takes away the jurisdiction of this Court on certain sub-

jects if suits about them are instituted after the 26th

January, 1950, or disputes concerning them arise after that

date, while article 374 (2) empowers this Court to hear and

to determine suits which were pending in the Federal Court

of India on the 26th January, 1950, and which that court was

competent to try and determine. There is, in my opinion, no

conflict between these two articles. They operate on two

different fields. The Federal Court of India had jurisdic-

tion by virtue of the provisions of section 204 of the

Government of India Act, 1935, to determine certain suits

between acceding States and the Government of India with

respect to certain subject matters and that jurisdiction was

continued for the time being and was conferred on this

506

Court. The original jurisdiction to the Supreme Court is

conferred by article 131 in respect of similar suits but '

it does not embrace all the subjects that were covered by

section 204 of the Government of India Act, 1935.

In Keshavan Madhava Menon v. The State of Bombay (1) it

was held by this Court that the Constitution of India has no

retrospective operation. This proposition was not disputed

by the learned Attorney-General. Article 363 of the Consti-

tution has therefore to be given a prospective operation and

as such it cannot affect suits pending before the 26th

January, 1950. It was contended by the learned Attorney-

General that though the article has no retrospective opera-

tion, yet the language employed in it affects the jurisdic-

tion of this court in respect of suits that were pending in

the Federal Court if they relate to subjects stated therein.

Emphasis was laid on the opening words of the article. In my

opinion, this contention is without force. The opening

words of the article do not make the article retrospective.

Once it is held that the whole article operates prospective-

ly on suits that are brought after the 26th January, 1950,

or on disputes that arise after that date, then the opening

words of the article cannot affect cases transferred to this

Court from the Federal Court under the provisions of article

374 (2)of the Constitution. It is a well known rule of

construction of statutes that no statute unless it be a

statute dealing with procedure only should be construed as

having retrospective effect, unless the statute expressly

makes its provisions retrospective or retrospective effect

must be given to it by necessary implication or intendment.

The law leans against giving retrospective effect to stat-

utes. Reference in this connection may be made to the deci-

sion of the Court of Exchequer in Moon v. Burden(2). There

the learned Barons of the Exchequer had to consider whether

section 18 of the Gaming Act, 8 and 9 Vict., Chapter 109,

was retrospective. The words of that section were as fol-

lows :--

"And be it enacted, that all contracts or agreements,

whether by oral or in writing by way of gaming or

(1) [1951] S.C.R. 228. (2) [1848] 2 Ex. 22.

507

wagering, shall be null and void; and that no suit shall be

brought or maintained in any court of law or equity

for recovering any sum of money or valuable thing alleged

to be won upon any wager, or which shall have been depos-

ited in the hands of any person to decide the event on

which any wager shall have been made."

Although the section provided that no suit should be

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brought or maintained in any court for the recovery of

any such sum, nevertheless the Court of Exchequer held that

section did not apply to suits which had been instituted

though not decided before the Act came into force. It was

observed by Baron Parke that the enactment "that all con-

tracts or agreements, by way of gaming or wagering shall be

null and void", if it stood by itself, ought most clearly

to be construed as applicable to future contracts and

agreements only, and that if the next part stood alone, it

would, though not so clearly, be construed to apply to

future actions only and it should be construed to mean, not

that an action already brought should not be maintained

but that no action should afterwards be brought, or, if

brought, maintained. In Beadling v. Coil (1), the Court of

Appeal in England held that the Gaming Act, 1922, which

provided that no action under section 2 of the Gaming Act,

1855, to recover back money paid in respect of gaming

debts "shall be entertained in any court", did not apply

to actions which had been commenced before the Gaming Act of

1922 came into force. In Henshall v. Porter (2), McCardie

J., went further and held that the Gaming Act, 1922, which

prohibited all courts from entertaining such suits, did not

apply to cases where the cause of action had arisen before

the passing of the Act, though no suit had been instituted

until the Act had been passed. The rule laid down in these

cases was expressly approved by the Federal Court of India

in The United Provinces v. Mst. Atiqa Begum(3) and the

learned Attorney-General frankly conceded that the rule laid

down therein was not contested. It seems to me that this

rule of construction

(1) [1922] 39 T.L.R. 128. (3) [1940] F.C.R. 110.

(2) [1923] 2 K.B. 193.

508

has apposite application to the construction of article 363

of the Constitution and the article has no retrospective

operation and only affects disputes that would arise after

the 26th January, 1950. As pointed out in Willis in his

Constitutional Law, the same principles govern the construc-

tion of constitutions and the construction of statutes, but

that the dominant force in the construction of constitution

is to construe one part in the light of the provisions in

the other part, as the constitution is a logical whole, each

provision of which is an integral part of itself. In the

majority judgment of this Court in Keshavan Madhava Menon v.

The State of Bombay (1) it was observed that the idea of the

preservation of past inchoate rights or liabilities and

pending proceedings to enforce the same is not foreign or

abhorrent to the Constitution of India and that idea can

be given effect to if article 363 (1)is construed as above.

Any other interpretation of article 363 would make the

provisions of article 374 (2) partially nugatory inasmuch as

certain suits pending in the Federal Court under section 204

of the Government of India Act, though removed to this Court

with a direction that they have to be determined by us,

could not be heard by this Court. Such a result is avoided

if article 363 is construed as suggested by me.

The contention raised by the learned counsel for the

plaintiff that this suit does not arise out of any agreement

as it questions its very existence does not seem sound

because the dispute in this case clearly arises out of the

provisions of the Instrument of Accession.

The next contention raised that the suit in so far as it

questions the validity of certain statutes by interpreting

the provisions of the Government of India Act and the Inde-

pendence Act has force as these subjects fall outside the

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scope of article 363. The question of jurisdiction has to

be determined on the allegations made in the plaint and

cannot be decided by considering the written statement and

the validity of the grounds alleged in the plaint.

(1) [1951] S.C.R. 228.

509

For the reasons given above I respectfully beg to differ

from the view of the majority of the Court on this issue and

hold that issue 1 should be decided in favour of the plain-

tiff.

Issue 3: Section 204 of the Government of India Act

provides as follows :--

"(1) Subject to the provisions of this Act, the Federal

Court shall, to the exclusion of any other court, have an

original jurisdiction in any dispute between any two or more

of the following parties, that is to say, the Dominion, any

of the Provinces or any of the Acceding States, if and in so

far as the dispute involves any question (whether of law or

fact) on which the existence or extent of a legal right

depends:

Provided that the said jurisdiction shall not extend to-

(a) a dispute to which a State is a party, unless the dis-

pute-

(i)concerns the interpretation of this Act or of an

Order in Council made thereunder before the date of the

establishment of the Dominion, or of an order made thereun-

der on or after that date, or the interpretation of the

Indian Independence Act, 1947, or of any order made thereun-

der, or the extent of the legislative or executive authority

vested in the Dominion by virtue of the Instrument of Acces-

sion of that State; or---"

Under this section the Federal Court was conferred

exclusive jurisdiction on disputes between the Dominion, any

of the Provinces or the Acceding States, provided that in

the case of the Acceding States the conditions laid down in

clause (a) cited above were fulfilled. It was contended by

the learned Attorney-General that the basic relief claimed

in the plaint is that the Instrument of Accession subsists

and that in substance the suit is to enforce the terms of

the Instrument of Accession on the allegation that these

have been contravened, but that the fact is that the

Instrument of Accession was superseded by the agreement of

the 15th December, 1949, and is no longer subsisting,

510

and that being so, the subject matter of this dispute is

outside the scope of the section. It was also argued that

unlawful acts by one sovereign State over the sovereignty of

another State would be in the nature of political acts (acts

of State) and that the municipal courts could have no juris-

diction to give relief concerning them. It was not disputed

that in those suits in which the execution of the supplemen-

tary agreement of the 15th December, 1949, was not denied

the controversy raised in the plaint would be within the

ambit of the section. In reply to these contentions the

following submissions were made on behalf of the plaintiffs

in this and in the connected suits:

(1) That the subject matter of the suit concerned the

construction of sections 6 and 101 of the Government of

India Act, 1935, and the point to be decided was whether on

the correct construction of these sections the Dominion of

India was competent to pass the Extra Territorial Jurisdic-

tion Act, XLVII of 1947, so as to affect the plaintiff's

rights, and could promulgate the various orders concerning

the merger of the plaintiff State;

(2) That on the allegations in the plaint, that a true

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construction of the provisions of section 6 (a? of the

Government of India Act, 1935, the alleged or admitted sup-

plementary instrument did not fall within its purview was a

matter within section 204 of that Act;

(3) That it having been alleged in the plaint that the

merger order in pursuance of which plaintiff State was

merged with the Province of Bihar was not within the ambit

of section 290-A, brought the suit within the provisions of

section 204 inasmuch as it was a question concerning the

interpretation of section 290-A of that Act;

(4) That on the allegations in the plaint that on a proper

construction of the Indian Independence Act, section 290-A

was not a valid piece of legislation the suit came again

within the ambit of the section;

(5) That the defendant not having raised the plea of act of

State to defend its various actions taken qua

511

the plaintiff State, the point could not be raised at this

stage, and that in any case when the defendant had pleaded

that its acts were done under the agreement of 15th Decem-

ber, 1949, it was not open to it to take that plea.

As already observed, the question of jurisdiction has to

be decided purely on the allegations made in the plaint and

it seems clear that on those allegations the suit is within

the ambit of section 204. It is, however, quite a different

matter that those allegations may not on further inquiry be

substantiated. Questions regarding the interpretation both

of the Government of India Act and of the Indian Independ-

ence Act have been canvassed in the plaint and it has also

been contended that on a true construction of the scope of

the Instrument of Accession which subsists none of the acts

of the defendant can be justified. The merger order, it has

been said, is in excess of the provisions of section 290-A

of the Government of India Act and this raises the question

of the true scope and intent of that section. The issue

therefore is decided in favour of the plaintiff.

Issue 6: The decision of the question raised by this

issue depends on the determination of the question whether

the plaintiff State has been validly integrated with the

Province of Bihar. If section 290-A of the Government of

India Act is not a valid piece of legislation or if the

merger order issued under that section is void, then it

cannot be said that the plaintiff State no longer exists and

has been merged in the Province of Bihar. The learned

Attorney-General made reference to article 1 of the Consti-

tution, which defines the territories of India and also

referred to the schedule in which it has been noted that the

territory of the State of Bihar includes those territories

which under the provisions of section 290-A have been inte-

grated with it. This statement in the schedule has to be

read subject to the contention raised above. It cannot be

denied that an Instrument of Accession was executed by the

plaintiff State in favour of the Dominion of

66

512

India and the plaintiff by this suit alleges that on the

true construction of that instrument the plaintiff State

retains its integrity. The plaintiff State denies the

execution of the supplementary instrument and also denies

that its merger is valid under its terms. Without determin-

ing the correctness of these allegations it is difficult to

hold that mere non-recognition of the State in the Constitu-

tion wipes out its existence and that the situation is

analogous to the case of death of a party in a suit. It may

be pointed out that under the terms of the Instrument of

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Accession the plaintiff was not bound either to accept the

future Constitution of India or to subscribe to its terms

and that being so, it would not be correct to find that by

the coming into force of the Constitution the plaintiff's

suit has abated. This Court has to decide the case in the

situation in which it was instituted in the Federal Court of

India and on the merits of the controversy it has to be

determined whether the State has been integrated validly

with the territories of the Dominion of India or not. In

these circumstances, in my opinion, the plea of abatement

raised has no validity. It was argued that this Court must

accept the Constitution and cannot go behind it, This is

unquestionably so, but in this case no question arises of

going behind the Constitution, when the court is only exer-

cising jurisdiction conferred on it by article 374 (2) of

the Constitution and deciding suits filed by Acceding States

before the Constitution came into force.

Issue 5:In my judgment, the plea raised under section

80 of the Code of Civil Procedure has no validity. The Code

of Civil Procedure has not been made applicable as in the

case of High Courts by section 117 to the Federal Court of

India. By section 204 of the Government of India Act,

exclusive original jurisdiction was conferred on the Federal

Court in respect of suits between States and States which

were outside the ken of the Code of Civil Procedure. By

section 214 of the Government of India Act, the Federal

Court was authorised to make its own rules of procedure.

The Code in section 4 has enacted that it does not affect

513

any special jurisdiction or special forms of procedure. Rule

5 of the Federal Court Rules framed under Section 214 of the

Government of India Act lays down in clear and unambiguous

language that none of the provisions of the Code of Civil

Procedure shall apply to any proceedings in the Federal

Court unless specifically incorporated in these rules. The

provisions of section 80 have not been incorporated in the

rules and that being so, section 80 cannot affect suits

instituted in the Federal Court under section 204 of the

Government of India Act, 1935. It was contended by the

learned Attorney-General that the condition precedent for

instituting a suit laid down in section 80 was not a matter

of procedure falling within the ambit of section 214 of the

Government of India Act and that the Federal Court could not

make rules eliminating the condition precedent laid down in

section 80 before a suit could be instituted against the

Government. In my judgment, this contention is not sound.

Section 214 lays down that the Federal Court may from time

to time with the approval of the Governor-General make rules

of court for regulating generally the practice and procedure

of the court. "Practice" in its larger sense like proce-

dure, denotes the mode of proceeding by which a legal right

is enforced, as distinguished from the law that gives and

defines the right. "Procedure" as defined in Wharton

means the mode in which successive steps in litigation are

taken. It seems to me that what is enacted in section 80 is

the first step in litigation 'between the parties when the

cause of action is complete. Section 80 in effect provides

that an advance copy of the plaint should be served on the

defendant and no suit should be instituted in court until

the expiry of two months after such service. Section 80

does not define the rights of parties or confer any rights

on the parties. It only provides a mode of procedure for

getting the relief in respect of a cause of action. It is a

part of the machinery for obtaining legal rights, i.e.,

machinery as distinguished from its products. [Vide Boyser

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v. Minors(1).]

(1) 50 L.J. Ex. 555.

514

Reference was made by the learned AttorneyGeneral to the

decision in Bhagchand Dagadusa v. Secretary of State for

India (1). At page 357 their Lordships of the Privy Council

examined the view that had been taken in some of the High

Courts in India on the applicability of section 80 to suits

for injunction and it was held that these had been decided

on an erroneous assumption that a statutory provision as to

procedure was subject to an exception in cases of hardship

or in cases where irremediable harm might be caused, if it

was strictly applied. It was pointed out that the Procedure

Code must be read in accordance with the natural meaning of

its words and that section 80 being explicit and mandatory,

it admitted of no implications or exceptions. Their Lord-

ships then made these observations:--

"To argue as the appellants did, that the plaintiffs had

a right urgently calling for a remedy, while section 80 is

mere procedure, is fallacious, for section 80 imposes a

statutory and unqualified obligation upon the Court."

The learned Attorney-General relying on those observations

contended that section 80 did not lay down any rule of

procedure but was a provision affecting substantive rights.

I am unable to accede to this contention. Their Lordships

did not decide, and it is not possible to think that they

would make any such decision, that section 80 did not lay

down a rule of procedure but was a piece of legislation

defining substantive rights. All that they said was that

section 80 was not mere procedure but was of a mandatory

character and more than this they did not say.

Further, it seems to me that suits between States and States

in respect of their political or public rights and which

were wholly outside the ambit of the Code of Civil Procedure

could not be governed by a rule like,this which aptly ap-

plies to cases of private persons seeking to enforce private

rights against Government. Parliament while conferring

original jurisdiction on

(1) L.R. 54 I.A. 338.

515

the Federal Court of India concerning these political rights

could not be intended to clog the enforcement of those

rights by the provisions of section 80 of the Code of Civil

Procedure. The only conditions precedent for the maintain-

ability of the suit are those laid down in section 204 and

the hearing of these suits has to be in accordance with the

rules of procedure prescribed by the Federal Court of India

under the provisions of section 214 of the Government of

India Act.

Issue 7: This issue was not very seriously argued by the

learned counsel for the plaintiff. The validity of section

290-A of the Government of India Act was disputed on the

ground that the assent of the Governor-General was not ob-

tained to the addition of this section in the Act. The

section was added to the Government of India Act by the

Constituent Assembly in its sovereign capacity and was

assented to by the President of the Assembly. The Govern-

ment of India Act, 1935, was the Constitution Act of the

Dominion of India and the Constituent Assembly was author-

ized by the Independence Act to amend or alter it till that

Assembly framed a permanent Constitution for India. The

provisions of sections 6 and 8 of the Independence Act fully

bear this out. In my opinion, there is no validity in the

contention raised on behalf of the plaintiff State that

section 290-A was not a valid piece of legislation and that

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it could not become law till the assent of the Governor-

General was obtained in respect of it. This Court has no

jurisdiction to examine the legislation passed by a sover-

eign body.

The result is that these suits, in my opinion, cannot be

disposed of on the preliminary issues and must proceed to

trial on the other issues. This order will also be treated

as an order in all the other connected suits.

DAS J.--I prefer to base my decision on issue No. 6 and

I express no opinion on the other preliminary issues argued

before us.

The seven suits which have been posted before us for

hearing on several preliminary issues came to be instituted

in the following circumstances:

516

On different dates hereinafter mentioned each of the

plaintiff States acceded to the Dominion of India by virtue

of Instruments of Accession executed by their respective

Rulers and accepted by the Governor-General of India. Each

of the said States also entered into standstill agreements

with the Dominion of India. Later on, each of the plaintiff

States entered into separate Articles of Agreement with the

GovernorGeneral of India. Instruments of Accession and

standstill agreements entered into by the State of Seraikel-

la (plaintiff in Suit No. 1 of 1950), the State of Dhenkanal

(plaintiff in Suit No. 2 of 1950), and the State of Baudh

(plaintiff in Suit No. 3 of 1950) were executed on or about

August 16, 1947, by the State of Tigiria (plaintiff in'Suit

No. 4 of '1950) and the State of Athgarh (plaintiff in Suit

No. 5 of 1950) on August 15, 1947, and by the State of

Baramba (plaintiff in Suit No. 6 of 1950) and the State of

Narsinghpur (plaintiff in Suit No. 7 of 1950) on July 18,

1947, and November 11, 1947, respectively. Articles of

Agreement were executed by the States of Seraikella, Dhen-

kanal and Baudh on December 15, 1947, and by the States of

Tigiria, Athgarh, Baramba and Narsinghpur on December 14,

1947.

By the Instruments of Accession, which were in the same

terms in all the cases, the respective Rulers of the plain-

tiff States acceded to the Dominion of India with the intent

that the Governor-General of India, the Dominion Legisla-

ture, the Federal Court and any other administrative author-

ity should, by virtue of the said Instruments but subject to

the terms thereof and for the purposes only of the Dominion,

exercise in relation to the State concerned such functions

as might be vested in them by or under the Government of

India Act, 1935, as in force in the Dominion of India on the

15th of August, 1947. By article 3 of the said Instrument

of Accession, the respective Rulers accepted the matters

specified in the Schedule as matters with respect to which

the Dominion Legislature might make laws for the respective

States. The matters specified in the Schedule comprised,

broadly speaking,

517

Defence, External Affairs and Communications. Article 5

provided that the terms of the Instrument of Accession

should not be varied by any amendment of the Government of

India Act or of the Indian Independence Act, 1947, unless

such amendment was accepted by the Ruler by an Instrument

supplementary to the Instrument of Accession. Article 7

provided that nothing in the Instrument of Accession should

be deemed to commit the Ruler of the State concerned in any

way to acceptance of any future Constitution of India or to

fetter his discretion to enter into arrangements with the

Government of India under any such future Constitution.

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Article 8 preserved the continuance of the Ruler's sover-

eignty in and over his State, and, save as provided by or

under the Instrument of Accession, the exercise of all

powers, authority and rights then enjoyed by him as Ruler of

the State.

By the standstill agreements, which were also in similar

terms, all agreements and administrative arrangements as to

matters of common concern then existing between the Crown

and any Indian State continued as between the Dominion of

India and the State.

By article 1 of the Agreements, the respective Rulers

ceded to the Dominion Government full and exclusive authori-

ty, jurisdiction and powers for and in relation to the

governance of the State and agreed to transfer the adminis-

tration of the State to the Dominion Government on the first

day of January, 1948, and the Dominion Government, as from

the last mentioned date, became competent to exercise the

ceded powers, authority and jurisdiction in such manner and

through such agency as it might think fit. Article 2 secured

to the respective Rulers their respective privy purse. It

may here be mentioned that the amount of the privy purse

payable to the Rulers of the States of Seraikella, Dhenkanal

and Baudh not having been agreed upon at the date of the

signing of the Articles of Agreements the space meant for

inserting the amount of privy purse was left blank in the

518

Agreements signed by the said Rulers. Article 3 preserved

the Ruler's full ownership, use and enjoyment of all his

private properties as distinct from State properties.

Article 4 saved all personal privileges enjoyed by the

Rulers whether within or outside the territories of the

States immediately before the 15th day of August, 1947.

Article 5 guaranteed the succession according to law and

custom to the Gaddi of the State and to the Ruler's personal

rights, privileges, dignities and titles.

On December 24, 1947, the Extra-Provincial Jurisdic-

tion Act, 1947 (Act XLVII of 1947) received the assent of

the Governor-General and came into force. The preamble of

the Act and the definition, in section 2 of 'extra-provin-

cial jurisdiction' made it quite clear that the Central

Government could, under this Act, exercise extra-provincial

jurisdiction over a State only if it had by treaty, agree-

ment etc. acquired full and exclusive authority, jurisdic-

tion and powers for and in relation to the governance of the

State. In the case of these seven States the Central Govern-

ment could exercise extra-provincial jurisdiction over them

only on the strength of the Articles of Agreement of Decem-

ber, 1947. It could not exercise extra-provincial jurisdic-

tion by reason of the Instrument of Accession.

On December 23, 1947, the Central Government issued a noti-

fication purporting to delegate its extra-provincial juris-

diction with respect to the plaintiff States under the

Extra-Provincial Jurisdiction Act, 1947 (No. XLVII of 1947)

to the Government of Orissa which at once began to

exercise extra-provincial jurisdiction over the seven

States. It is not quite clear how there could be a delega-

tion of jurisdiction before the Act came into force. Be

that as it may, on May 18, 1948, another notification was

issued by the Central Government under sections 3 and 4 of

the Extra-Provincial Jurisdiction Act, 1947, cancelling the

previous notification with respect only to the State of

Seraikella and the State of Kharsawsn and delegating its

jurisdiction in or in relation to those two States to the

Government of

519

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Bihar and on the same date the Government of Bihar after

promulgating the Seraikella and Kharsawan States Order

assumed jurisdiction over them. The other States continued

to be administered by the Government of Orissa. The Con-

stituent Assembly by the Government of India (Amendment)

Act, 1949 (No. 1 of 1949) which received the assent of the

President of the Constituent Assembly on January 10,

1949, amended the Government of India Act, 1935, by, inter

alia, inserting the following section as section 290-A:--

"Administration of certain acceding States as a Chief

Commissioner's Province or as part of a Governor's or Chief

Commissioner's Province.--(1) Where full and exclusive

authority, jurisdiction and powers for and in relation to

the governance of any Indian State or of any group of such

States are for the time being exercisable by the Dominion of

India, 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; or

(b) that the State or the group of States shall be

administered in all respects as if the States or the group

of States form part of a Governor's or a Chief Commission-

er's Province specified in the order:

Provided that if any order made under clause (b) of this

sub-section affects a Governor's Province, the Governor-

General shall before making such order ascertain the views

of the Government of that Province both with respect to the

proposal to make the order and with respect to the provi-

sions to be inserted therein"

It will be noticed that the Governor-General could act

under the new sect-ion only where full and exclusive author-

ity, jurisdiction and powers for and in relation to the

governance of any Indian State were for the time being

exercisable by the Dominion of India. It follows that the

Governor-General could, under this new section, make an

order of merger with respect to these seven States only on

the strength of the Articles

67

520

of Agreements of December 1947. He could not make any such

order by reason of the Instrument of Accession.

In exercise of the powers conferred on him by the new

section 290-A, the Governor-General, on July 27, 1949,

promulgated an Order called the States' Merger (Governors'

Provinces) Order, 1949. Section 3 of this Order provided as

follows :--

"As from the appointed day, the States specified in each

of the Schedules shall be administered in all respects as if

they formed part of the Province specified in the heading of

that Schedule; and accordingly, any reference to an acceding

State in the Government of India Act, 1935, or in any Act or

Ordinance made on or after the appointed day shall be con-

strued as not including a reference to any of the merged

States, and any reference in any such Act or Ordinance as

aforesaid to a Province specified in a Schedule to this

Order shall be construed as including the territories of all

the States specified in that Schedule."

Schedule III of the Order showed that the State of

Seraikella was one of the two States merged in the Province

of Bihar and Schedule IV showed that the other Orissa States

including the plaintiffs in Suits Nos. 2 to 7 of 1950 were

merged in the 'Province of Orissa.

Being aggrieved by the enactments, orders and notifica-

tions resulting in their merger with Bihar or Orissa the

plaintiff States filed the present suits in the Federal

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Court of India in its Original Jurisdiction. Suit No. 1 of

1950 was filed on or about January 15, 1950, and the other

six suits were filed on January 23, 1950. The defendants in

the suits are two in number. The first defendant in all the

suits is the Dominion of India and the second defendant in

Suit No. 1 iS the State of Bihar while the second defendant

in all the other suits is the State of Orissa. The main

written statements in all the suits are filed on behalf of

the first defendant and the second defendant, the State of

Bihar or the State of Orissa, as the case may be, has adopt-

ed

521

the contentions set forth in the written statements of the

first defendant. An additional written statement was filed

by the first defendant raising another preliminary issue of

law which has also been adopted by the second defendant.

The Constitution of India having come into force on

January 26, 1950, all these suits, by virtue of article 374

(2), stood removed to this Court which was created by the

Constitution. The learned Chamber Judge directed that the

issue of law raised in the additional written statement be

tried as a preliminary issue. When the suits were called on

for hearing on that preliminary issue, learned Attorney-

General handed in a list of 17 issues and it was agreed by

counsel on both sides that the following issues only should

be determined first as preliminary issues :--

1. Whether having regard to the subject-matter of the

suit and the provisions contained in article 363(1) of the

Constitution of India, this Hon'ble Court has jurisdiction

to entertain the suit ?

3. Whether the Federal Court had jurisdiction to enter-

tain the suit under section 204 of the Government of India

Act, 1935, and particularly in regard to the questions as to

the existence and validity of the agreement of merger ?

4. Whether this Court has jurisdiction to entertain the

suit ?

5. Whether the suit is maintainable in view of the

absence of the requisite notice to the defendants under

section 80 of the Civil Procedure Code ?

6. Whether having regard to the provisions of the Con-

stitution the plaintiff has a legal capacity and is entitled

to maintain the suit ?

7. Whether this Court is competent to examine the valid-

ity of section 290-A of the Government of India Act, 1935,

enacted by the Constituent assembly ?

Re Issue No. 6.--1 take up issue No. 6 which appears to

me to be decisive. Article 1 of the Constitution says that

India shall be a Union of States and that the States and

territories thereof shall be the States and

522

their territories specified in Parts A, B and C of the First

Schedule. The First Schedule to the Constitution in Parts A,

B and C sets out the names of the States and indicates what

the territories of the States shall be comprised of. The

third paragraph in Part A provides as follows :-

"The territory of each of the other States in this Part

shall comprise the territories which immediately before the

commencement of this Constitution were comprised in the

corresponding Province and the territories which, by virtue

of an order made under section 290-A of the Government of

India Act, 19.38, were immediately before such commencement

being administered as if they formed part of that Province.

The argument is that as the territories of the plaintiff

States., by virtue of the States' Merger (Governors' Prov-

inces) Order, 1949, made under section 290-A of the Govern-

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ment of India Act, 1935, were immediately before the

commencement of the Constitution being administered as if

they formed part of the Provinces of Bihar or Orissa,

the territories of the States of Bihar and Orissa there-

fore now comprise the territories of the plaintiff

States. The subjects of the plaintiff States have now become

the citizens of India, their territories have been merged in

the State of Bihar or Orissa, as the case may be. These

States are no longer recognised as States in Parts A, B or C

of the First Schedule to the Constitution. In short, they

have ceased to be States so far as our Constitution is

concerned and consequently they have no legal existence as

acceding States which this Court which is bound by the

Constitution may recognise. These States, in the circum-

stances, cannot come to this Court to enforce their politi-

cal rights and are no longer entitled to maintain the suits.

Learned counsel for the plaintiffs, however, contend that,

the order made under section 290-A of the Government of

India Act, being ultra vires and illegal, the territories of

the States were never lawfully administered as part of the

Provinces of Bihar or Orissa and, therefore, the territories

of the State of Bihar or Orissa cannot be

523

said to comprise the territories of the plaintiff States. It

seems to me that the contention of the learned counsel for

the plaintiffs is misconceived, for the part of the sentence

beginning with the words "which immediately before the

commencement" and ending with the words "formed part of that

Province" are but description of the territories which the

Constitution states are to be comprised in the territories

of the States of Bihar or Orissa. The validity or otherwise

of the order made under section 290-A of the Government of

India Act has no relevancy. The question is whether the

territories of the plaintiff States were in fact being

administered as if they formed part of the Provinces of

Bihar or Orissa and whether such territories were being so

administered by virtue of an order made under section 290-A

of the Government of India Act. There can be no doubt that

the answer must be in the affirmative. This Court is bound

by the Constitution and cannot question the validity of any

of its provisions. The Constitution says that the territo-

ries of Bihar and Orissa shall comprise the territories

specified in Part A and this Court must accept that posi-

tion. None of these States is included amongst the States

named in Parts A, B and C. Our Constitution does not recog-

nise any of these States as an acceding State. The Govern-

ment of India Act which recognised them as acceding States

has been repealed. Therefore, the plaintiff States have no

existence in the eye of the Constitution and cannot come to

this Court to enforce their political rights. It is not

necessary to consider whether in international law there may

be a State without any territory or without any subject such

as many of the States, which during the last war had been

overrun by the invaders and which functioned in foreign

countries claimed to be. The problem before us is quite

different. The States which are plaintiffs in suits Nos. 4,

5, 6 and 7 ceased to be acceding States by reason of the

Merger agreement of December 1947 admittedly concluded by

their respective Rulers. In any event, our Constitution has

quite clearly eliminated these States as such by absorbing

524

their territories with the States of Bihar or Orissa. As our

Constitution does not recognise these States as acceding

States or even as States, this Court cannot recognise these

States or their political rights. These cases may have been

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within the jurisdiction of the Federal Court when they were

instituted, but since then the Government of India Act has

been repealed and the new Constitution has come into force.

Under 'the Constitution, these States do not exist at all.

Assuming that these States are still in existence notional-

ly, they have, at any rate, ceased to be States of the kind

which could maintain a suit under section 204 of the Govern-

ment of India Act. After the repeal of the Government of

India Act and the commencement of the Constitution none of

these States is an acceding State which may continue a suit

filed under section 204. The suits must, therefore, be

regarded as having abated by reason of the elimination of

the plaintiff States as States or acceding States just as an

ordinary suit would abate on the death of a plaintiff. In

my judgment, these suits can no longer be continued in this

Court.

In view of my decision on issue No. 6, the other prelim-

inary issues need not be considered.

Suits dismissed.

Agent for the plaintiffs in Suits Nos. 1, 3 & 4: R.R.

Biswas.

Agent for the plaintiffs in Suits Nos. 2 & 5: P.K.

Chatterjee.

Agent for the plaintiffs in Suits Nos. 6 & 7: S.C.

Bannerjee.

Agent for the defendants: P.A. Mehta,

525