S.C.R. SUPREME COURT REPORTS 537

within the decisions of this Court in the earlier cases

referred

to above.

In the light of the above discussion it follows,

there­

fore, that the answer to the referred question should

by in the negative. The result, therefore, is that this

appeal is allowed,

the answer given by the

High Court

to the question is set asicfo aDd the question is answer­

ed in the negative. The appelli1nt must get the costs

of the reference in the High Court and in this Court.

A ppe,al allowed.

THE STATE O:F SAURASHTRA

v.

MEMON HAJI ISMAIL HAJl

(S. R. DAs, C.J., N. H. BHAGWATI and

M. HIDAYATULLAH, JJ.)

Act of State-Taking over of administration of Junagadh Staie

by Domi;, o"on of India-Resumption of property by Administi;ator

before completion of such act-If an act of State not justiciable in

municipal Co14Tts.

The suit, out of which the present appeal arose, was one

originally brought by the respondent against the State of

Junagadh, later

on substituted by the State of

Saurathtra, for a

declaration

that the Administrator's order dated

October r, 1948,

resuming the immQveable property in suit was illegal, unjust and

against all canons

of natural justice. The.suit was decreed by

the

Civil Judge and the decree was affirmed by the High Court

in appeal. The only point for determination in this appeal was

whether the act

of resumption by the Administrator was an act

of State performed on behalf

of the Government of India and

involved

an alien outside the State and was not, therefore,

justiciable in the municipal

Courts. With the passing of the

Indian Independence Act 1947, and lapse of paramountcy by

reason

of s. 7 thereof, the Nawab of Junagadh became sovereign,

but instead of acceding to the new Dominion he left for Pakistan.

It appeared from the White

Paper on Indian States that the

Government of India took over the administration of the State

on November 9, 1947• at the request of the Nawab's Council, but

did not formally annex it till January 20, 1949• and during that

period the Administrator maintained law and order and carried

on the administration.

Held, that there could be no doubt thaf the act of the

Dominion of India in assuming the administration

of Junagadh

State was an act

of State pure and simple and the resumption in

I959

Godrej &Co

v.

Commissioner of

I n&ome-tax

Das C.J.

I959

August 4.

z959

TheStato of

Saurashlra

v.

Menum Haji

Ismail Haji

Hidayalullo J.

538 SUPREME COURT REPORTS [1960(1}]

question having been made by the Administrator before that act

was completed

and at a time when the people of Junagadh,

including the respondent, were aliens outside the State,

the act

of resumption, however arbitrary, was an

act of

State on behalf

of the Government

of India and was not, therefore, justiciable in

the municipal Courts.

The test in such cases must be whether the

State or its

agents purported to act "catastrophically " or subject to the

ordinary course of law.

Salaman v. Secretary of State for India,

(1906) l K.B. 613,

Johnstone v. Pedlar, (1921) 2 A.C. 262, Secretary of State in Council

for India v. Kamachec Boye Sahaba, (1859) 13 Moore P.C. 22, Vaje

Singh

Ji Joravar Singh

0-Ors. v. Secretary of State for India,

(1924) L.R. 51 I.A. 357, Dalmia Dadri Cement Co. v. Commissioner

of Income-tax, [1959] S.C.R. 729, relied on.

Forester and Others v. Secretary of State for India, 18 W.R.

349 P.C., considered.

The essence

of an act of

State was the arbitrary exercise of

sovereign power, on principles other than or paramount to the

municipal law. Although the sovereign might allow the inhabit­

ants to retain their old laws and customs, it could not itself be

bound by them until

it purported to act within them, thus

bringing to an end the act of

State.

Campbell v. Hall, l Comp. 204; 98 E.R. 1045, Ruding v.

Smith, 2 Hag. Con. 384; 161 E.R. 774 and E.I. Co. v. Syed Ali,

7 M.I.A. 555, referred to.

CIVIL• APPELLATE JURISDICTION: Civil Appeal

No. 185

of 1955.

Appeal from

the judgment and decree dated the

February 19, 1953, of the former

Saurashtra High

Court in Civil First Appeal No. 16 of 1952, arising out

of the judgment and decree dated December 15, 1951,

of the Civil Judge, Senior Division, Junagadh in Civil

Suit No. 470 of 1950.

G. !(. Daphtary, Solicitor-General of India, R. Gana-

pathy Iyer and D. Gupta for the appellant.

I. N. Shroff, for the respondent.

H.J. Umrigar and K. L._ Hathi, for the lnterveners.

1959. August 4.

The Judgment of the

Court was

delivered

by liIDAYATULLAH J.-This appeal with a certificate

from

the former High

Court of Saura11htra under

Art.133 of the Constitution read with Ss. 109 and 110 of

S.C.R. SUPREME COURT REPORTS 539

the Code of Civil Procedure, has been brought against

the judgment of that Court dated February 19, 1953, in

Civil First Appeal No. 16 of 1952.

The appellant is the State of Saurashtra, which

stood substituted for

the

State of Junagadh,. against

which the snit was originally

filed. The respondent,

Memon Haji Ismail Haji Valimahomed

of Junagadh,

(hereinafter referred to as the respondent), brought

this

suit originally against two defendants, the State of

Junagadh and one Jamadar Abu

Umar Bin Abdulla

Abu

Panch (hereafter referred to as Abu Panch), for a

declaration

that the

Secretariat Order No. 2/3289 dated

October

1, 1948, was

"illegal, unjust and against all

canons

of natural justice

". He also asked for an

alternative relief that the second defendant do return

to him a sum

of Rs.

30,000 plus Rs. 541-2-0, being the

consideration and expenses of a transfer of immovable

property resumed under

the said

Order. The suit was

decreed

by the

Civil Judge, to whom after integration

the case was transferred, and the decree was confirmed

by the High Court by the judgment under appeal. It

may be pointed out that during the course. of this suit,

a. third defendant, namely, the Mamlatdar, Viswadar

was also impleaded, because the property

of Abu

Panch

had passed into the management of the Saurashtra

Government under what is described in the case as the

Gharkhod Ordinance. It may further be pointed out

that the two defendants other than the State of Sau­

rashtra were discharged from the suit, and it proceed­

ed only against the State of Saurashtra for the relief

of declaration above described.

The facts of the case are as follows : One Ameer

Ismail Khokhar Ka.yam Khokhar purchased a plot of

land in Junagadh town from the State of Junagadh,

and built a house on it. A Rukka was issued to him

on December

2, 1939, which is plaintiff's Exhibit

No.

34. In the year 1941, the Nawab of Junagadh

purchased the property from Khokhar, though the

document by

whfoh this purchase took place has not

been produced in the case. On November 17, 1941, the

Nawab gave this property by gift to Abu Panch. Abu

1959

The Slate of

Saurashlra

v.

MemonHaji

Ismail Haji

Hidayalullah J.

I959

The State of

Saurashlra

v.

Mtmon Haji

Ismail Haji

Hidayatullah J.

540 SUPREME COURT REPORTS [1960(1)]

Panch in his turn sold on November 24, 1943 the pro­

perty to the respondent for Rs. 30,000. In the original

gift deed (described

in plaintiff's Exhibit dated May 18,

1942)

there does not appear to have been any mention

of a power to transfer the property. Indeed, in the

said document of May 18, 1942, it was stated that the

house was given

for the " use and enjoyment " of Abu

Panch. Subsequently, on February 12, 1944, the

Nawab ordered certain amendments in the Palace

Order

by making it possible for Abu

Panch to sell the

house. It was stated as follows :

" .. . you are hereby granted from the date of gift

i.e. 17-11-41 the title to sell the house as defined in

this Rukka and as per directions received."

It appears that this additional Shera was issued to

validate the sale which had been effected by Abu Panch

earlier. However, t·he matters stood thus when after

Independence the affairs of Junagadh State fell into a

chaos,

and at the invitation of the State

Council the

the

Government of India ordered the Regional

Com­

missioner, Western India and Gujerat States Region to

assume charge of the administration of the State on

behalf of the Government of India. The Regional

Commissioner on November 9, 1947, issued a Procla­

mation which was published in the Destural Amal

Sarkar Junagadh of November 10, 1947, stating that

he had assumed charge of the administration of the

Junagadh State at 18·00 hours under the orders of the

Government of India. The Proclamation which is

brief,

may be quoted here : "I, N. M. Buch, Barrister-at-law O.B.E., I.C.S.,

Regional Commissioner, Western India &-Gujarat

States Region, have this day assumed charge of the

administration of the Junagadh State at 18·00 Hours

under the orders of the Government of India, at the

request of the Junagadh State Council supported by

the people of Junagadh in view of the complete

breakdown

of administration resulting in chaotic

condition

in the State. The first task of myself and

my officers will be to ensure complete peace and

order throughout Junagadh State territory, and to

give even justice to all communities. The majority

S.O.R. SUPREME COURT REPORTS 541

community of the State has a special responsibility

for

the protection of the minorities. All the

Junagadh

State Officials and subjects are, therefore,

invited to offer unconditional

and loyal support and

cooperation to the new Administration. Any a.ct of

non.cooperation and disloyalty must in the interest

of the people and for the preservation of

" peace and

order " be dealt with and shall be dealt with firmly.

J unaga.dh, NIM. Buch,

9th November, 1947, Regional Commissioner,

Western India. & Gujarat

States Region."

On November 14, 1947, the Regional Commissioner

by a Notification (No. 6 of 1947), appointed Shri S. W.

Shiveshwa.rka.r as Administrator of Juna.gadh State.

That N otifica.tion was as follows :

"Mr. S. W. Shiveshwa.rka.r M.B.E., I.C.S. on being

relieved as Secretary to the Regional Commissioner,

Western India. and Gujarat States Region, is appoint­

ed Administrator of the Junaga.dh State vice Rao

Sa.heh T. L. Shah, B.A. Under my genera.I guidance

and supervision the Administrator will have full

authority to pass all orders and to take all action

necessary to carry on

the affairs of the J una.ga.dh State.

* * *

J unaga.dh, N. M. Buch,

14th November,

1947. Regional

Commissioner,

Western India. & Gujarat

States Region."

On October 13, 1948, Shri Shiveshwarkar passed

Secretariat Order No. R/3289of1948, which was im­

pugned in the suit. It reads :

"Land measuring Sq. Yds. 1,846-9-12 with the

building thereon, situated outside Ma.jevdi Gate

opposite workshop was given as a gift by way of

Inam to Abu U mar Bin Abdulla Abu Panch '::.f

Junagadh under Private Secretary's Office No. Pl58

dated 17th November, 1941. The donee had no right

to sell the said land and building under Rulli

No. 32/98 and the vendor Sheth Haji Ismail Haji

6Q

z959

Thi Slate of

S aurashlra

v.

Memon Haji

Ismail Haji

Hidayatullah

J.

I9$9

The State of

Saurashtra

v.

Memon·Haji

Ismail Haji

Hidayatullah ].

542 SUPREME COURT REPORTS [1960(1)]

Valimahomed had purchased the same with the full

knowledge

of the contents hereof.

The

grant being a wanton and unauthorised gift

of Public property the above-said order is hereby

cancelled and'

as the subsequent purchaser does not

get any .right, title or interest higher than that

possessed by the donee, Mr. Abu Panch, it is ordered

that the said land with the superstructures thereon

should be

resumed forthwith by the State as State

property.

Sd.

S. W. Shiveshwarkar

Administrator

President's Executive

Council,

Junagadh

State_"

It appears that immediately afterwards the Admini­

strator took this property in his possession, and the

plaintiff-respondent after serving a notice under s. 423

of the Junagadh State Civil Procedure Code (corres­

ponding

to s. 80 of the

Civil Procedure Code, 1908) filed

the suit for the above declaration in the High Court of

the State. As pointed out above, the suit was trans­

ferred subsequently to the Civil Judge, Senior Division,

Junagadh, who decreed it granting the declaration on

December 15, 1951. He held that the Administrator's

order was illegal and inoperative and also against " all

canons

of natural

justice." An appeal was filed by the

State of Saurashtra pleading, as was done in the suit

itself, that the action of Shri Shiveshwarkar who was

a delegate

of the Government of India appointed under

s. 3(2)

of the

Extra.Provincial Jurisdiction Act, was

not justiciable being an act of State, that the Civil

Court's jurisdiction was barred under s. 5 of the Extra.­

Provincial Jurisdiction Act and s. 4(2) of Ordinance

No. 72

of 1949 and that the grant was always

resum­

able by the Ruler and Shri Shiveshwarka.r as the

successor could also resume the same.

The High Court of Saurashtra referred in detail

to a minute prepared by Sir Raymond West in

Col. Webb's Political Practice, wherein the author had

stated what the rights of Rulers were to resume grants

ma.de by them and stated that such resumption was

not possible by the Rulers. The High Court also

S.C.R. SUPREME COURT REPORTS 543

stated that this action could not be regarded as an act

of State and further that the jurisdiction of the Courts

was neither barred by s. 5 of the Extra-Provip.cia.l

Jurisdiction Act nor by s. 4(2) of Ordinance No. 72

of 1949.

In this appeal, the learned Solicitor-General on

behalf of the State of Saurashtra abandoned three of

the contentions which were raised in the Courts below.

He said that the State was not relying upon the power

of Shri Shiveshwarkar as successor to the Ruler of

Junagadh to resume this property, and no reference

to Sir Raymond West's minute was therefore neces­

sary.

He also said that the

State Government did not

seek to justify the resumption nor question the juris­

diction of the Court under the Extra-Provincial Juris­

diction Act and the above-mentioned Ordinance. He

pleaded that the action of Shri Shiveshwarkar was an

act of State performed on behalf of the Government of

India, and was therefore not justiciable in Municipal

Courts.

The term 'act of State' has many uses and meanin,gs.

In France and some Continental countries the acts of

the State and its officers acting in their official capacity

are

not cognizable by the ordinary courts nor are they

subject to the ordinary law of the land. The reason

of the rule is stated to be that the

State as the fount

of all law cannot be subordinate to it. In our system

of law which is inherited from English Jurisprudence

this is

not accepted and save some acts of

a special

kind, all

other official acts must be justified as having

a legal foundation. In this sense 'act of

State' means

not all governmental acts as it does in the French and

Continental Systems but only some of them. The

term is next used to designate immunities and prohibi­

tions sometimes created by statutes. The term is also

extended

to include certain prerogativ.es and special

immunities enjoyed

by the sovereign and its a.gents in

the business of internal government. The term is

even used

to indicate all acts into which, by reason

that they are official in character, the

Courts may not

inquire, or in respect of which an official declaration

is binding on

the

Courts.

I959

The Slate of

Saurashlra

v.

MemonHaji

Ismail

Haji

H idayatullah J.

r959

TM State of

Saurashtra

v.

Memon Haji

Ismail Haji

Hidayalullali J.

544 SUPREME COURT REPORTS (1960(1))

We are not concerned with these and such other

meanings. The defence is founded on an act of State

involving an alien outside the State. Such an act of

State was described in elegant phrase by Fletcher­

Moulton, L. J., in Salaman v. Secretary of State for

India(') as 'a catastrophic change constituting a new

departure.'

It

·is a sovereign act which is neither

grounded

in law nor does it pretend to be so.

Exam­

ples of such 'catastrophic changes' are to be found in

declarations of war, treaties, dealings with foreign

countries

and

aliens outside the State. On the desir­

ability or the justice of such actions the Municipal

Courts cannot form

any judgment. In Civil

commo­

tion, or even in war or peace, the State cannot act

'catastrophically' outside the ordinary law and there

is legal remedy for its wrongful acts against its own

subjects

or even a friendly alien within the State.

See

Johnstone v. Pedlar (

2

). But there is immunity from

courts' interference in respect

of acts done by the State against an alien outside the State.

The question thus is always: Did the State or its

agents purport to act 'catastrophically' or subject to

the ordinary course of the law? This question was

posed

in Secretary of State

in Council for India v.

Kamachee Boye Sahaba (

8

)

by Lord Kingsdown in these

words:-

" What was the real character of the act done in

this case? Was it a seizure by arbitrary power on

behalf of the Crown of Great Britain, of the domi­

nions and property of a neighbouring State, an act

not affecting to justify itself on grounds of Municipal

Law ? Or was it, in whole or in part, a possession

taken by the Crown under colour of legal title of the

property of the late Raja of Tanjore, in trust for

those who,

by law, might be entitled to it on the

death of the last possessor? If it were the latter,

the defence set up, of course, has no foundation.''

In that case the

Supreme Court of Madras was

moved

by

a bill to claim certain properties seized on

the death of Raja Sivaji of Tanjore without heirs. The

(1) (1go6) 1 K.B. 613 at 6to. (2) (1921) 2 A.C. 262.

(5) (1859) 13 Moore P.C. 22.

S.C.R. SUPREME COURT REPORTS 545

claim was accepted by the Supreme Court of Madras

but was rejected by the Privy Council. Lord Kingsdown

ob-served in the case :-

"The general principle of law could not, with any

colour of reason, be disputed. The transactions of

independent States between each other are governed

by other laws than those which Municipal Courts

administer. Such Courts have neither the means of

deciding

what is right nor the power of enforcing

any decision which they

make."

After deciding that there was a.n act of State, Lord

Kingsdown

further observed: " of the propriety or justice of that act, neither

the Court below nor the Judicial Committee have

the means of forming, 01· the right of expressing if

they had formed, any opinion. It may have been

just

or unjust, politic or impolitic, beneficial or

in­

jurious, taken as a whole, to those whose interests

a.re affected. These are considerations into which

their Lordships cannot enter.

It is sufficient to say

that, even if a. wrong has been done, it is a. wrong

for which no Municipal

Court of justice can afford

a. remedy."

Similar view was expressed also in Raja of Ooorg v.

East India Company (1), Raja Saligram v. Secretary of

State for India in Council (

2

); and Sardar Bhagwan

Singh v. Secretary of State (

3

), and Secretary of State v.

Sardar Rustam Khan (

4

). The principJe of these cases

has been extended to all new territories whether

acquired

by conquest, or annexation or cession or

otherwise and also to rights, contracts, concessions,

immunities

and privileges erected by the previous

para.mount power. These are held

to be not binding

on

the succeeding power even though before

annexa­

tion it was a.greed between the two powers, that they

would be respected. Lord Dunedin in Vaje Singh Ji

Joravar Singh & {)thers v. Secretary of State for India (

5

)

summed up the law in these words:-

"When a territory is acquired by a. sovereign

State for the first time that is a.n act of State. It

(1) (186o) 29 Beav. 300.

(2) (1872) L.R. Ind. App.

Suppl. Vol. n9.

(3) (1874) L.R. 2 A.I. Ca.s. 38.

(4) (1941) L.R. 68 I.A. 109.

(S) (1924) L.R. 51 I.A. 357, ~6o.

I959

The State of

Saurashtra

v.

Memon Haji

Ismail

Haji

H idayatullah J.

1959

The State of

Saurashtra

v.

1lfemon Haji

lsinail Huji

Jlidayatull(l.h J.

546 SUPREME COURT REPORTS [1960(1)]

matters not how the acquisition has been brought

about. It may be by conquest, it may be by cession

following

on treaty, it may be by occupation

·of

territory hitherto unoccupied by a recognized ruler.

In all cases the result is the same. Any inhabitant

of the territory can make good in municipal courts

established by the new sovereign any such rights, as

that sovereign has, through his officers, recognized.

Such rights as he had under the rule of predecessors

avail him nothing. May more, even if in a treaty

of cession it is stipulated that certain inhabitants

should enjoy certain rights, that does not give a

title

to those inhabitants to enfore these stipulations

in the municipal

Courts. The right to enforce

remains only with the high contracting parties."

These cases and others like Cook v. Sprigg('), Hoani

Te H~uheu Tukino v. Aotea District Maori Land

Board(') were approved and applied by this Court in

Dalrnia Dadri Cernent Co. v. Comrnissioner of Incorne­

tax (") in which an agreement with the ex-Ruler of

Jhind for tax concessions was held not binding upon

the Income-tax authorities after the merger of the

State with the Union of India and the defence of an

act of State was upheld. Venkatarama Aiyar, J., then

observed:-

" When the sovereign of a State-meaning by that

expression, the authority in which the sovereignty

of the State is vested, enacts a law which creates,

declares or recognizes

rights in the subjects, any

infraction of those rights would be actionable in the

courts of that

State even when the infraction is by

the State acting through its officers. It would be

no defeuce

to that action that the act complained

of is an act of

State, because as between the sove­

reign and his subjects there is no such thing as an

act of State, and it is incumbent on his officers to

show that their action which is under challenge is

within the authority conferred ou them by law.

Altogether different considerations arise

when the

act of

the sovereign has reference not to the rights

(1) (1899) A.C. 572. (2) (1941) A.C. 308.

(3) [1959] S.C.R. 729, 740-<11.

-

S.C.R. SUPREME COURT REPOR'fS 547

of his subjects but to acquisition of territories

belonging

to another sovereign. That is a matter

between independent sovereigns, and any dispute

arising therefrom

must be settled by recourse not to

municipal law of either

State but to diplomatic

action,

and that failing, to force. That is an act of State pure and simple, and that is its character until

the process of acquisition is completed by oonquest

or cession. Now, the status of the residents of the

territories which are thus acq'uired is that until

acquisition is completed as aforesaid they are the

subjects of the ex-sovereign of those territories and

thereafter they become the subjects of the new sove­

reign.

It is

also well established that in the new

set

up these residents do not carry with them the

rights which they possessed as subjects of the ex­

sovereign,

and that as subjects of the new sovereign,

they have only such rights as are granted or recog­

nized

by him; vide Secreta,ry of State for

India

v. Bai Rajbai (1), Vajesingji Joravar Singhji and

Others v. Secretary of State (

2

), Secretary of State v.

Sardar Rustam Khan (

3

)

and Asrar Ahmed v. Durgah

Committee,

Ajmer

(

4

). In law, therefore, the process

of acquisition of new territories is one continuous

act of State terminating on the assumption of sove­

reign powers

de jure over them by the new sovereign

and it is only thereafter that rights accrue to the

residents of those territories as subjects of that

sove­

reign. In other words, as regards the residents of

territories which come under the dominion of a new

sovereign,

the right of citizenship commences when

the act of

State terminates and the two, therefore,

cannot co-exist.

It follows from this that no act

done or declaration

made

by the new sovereign prior to his assumption

of sovereign

powers over acquired territories can

quoad

the residents of those territories be regarded

as having

the character of a law conferring on them

rights such as could be agitated in his

courts."

(1) L.R. 42 I.A. 229. (3) (1941) L.R 68 I.A. 109.

(2) (1924) L.R. 51 I.A. 357, 360. (4) (1947) A.I.R. 1947 P.C. 1.

1959

Tlze Stale of

Saurashtra

v.

Memon Haji

Ismail Haji

Hidayatullah ],

I959

The State of

Saurashtra

v.

Memon Haji

Ismail Haji

Hidayatullah ].

548 SUPREME COURT REPORTS [1960(1)]

It is, however, otherwise if the act of the new sove­

reign is meant to be within the law and is not a

concomitant

of an act of State.

One such case was

Forester and Others v. Secretary of State for India (

1

). In

that case one of the questions was whether there was

an act of State at all,-a question which the Courts

can legitimately consider.

It was held thatthe Begum,

whose estate was seized

by the East India Company

after

her death, wa.s not a sovereign princess but

a

mere Jaidadar and th,e resumption of her jagir upon

her

death was not an act of

State but an act done under

a legal title.

It was observed :-" The act of Government in this case was not the

seizure by arbitrary power of territories which upto

that time had belonged to another sovereign State ;

it was the resumption of lands previously held from

the government under a particular tenure, upon

the

alleged determination of that tenure. The possession

was

taken under colour of legal title, that title being

the undoubted right of the sovereign power to

resume, and retain. or assess to the public revenue,

all lands within its territories tipon

the determination

of the tenure, under which they may have been

exceptionally held

rent free. If by means of the

continuance of the tenure or for other cause,

a right

be claimed in derogation of this title of the govern­

ment, that claim, like any other arising between

the government

and its subjects would

prima facie

be cognizable by the Municipal Courts of India."

From these cases it is manifest that an act of State

is an exercise of sovereign power against an a.lien and

neither intended nor purporting to be legally founded.

A defence

of this kind

ooes not seek to justify the

action with reference to the' law but questions the very

jurisdiction of the Courts to pronounce upon the lega­

lity or justice of the action.

We

have now to consider whether the necessary

facts

to support the plea in defence existed in this

case. We must determine what was the status of the

respondent on the date the impugned

Order was passed

against him. The position of the ex-Rulers of the

former Indian States has, on more than one occasion,

(1) 18 W.R. 3'19 P.C,

S.C.R. SUPREME COURT REPORTS 549

been analysed

by this

Court and need not detain us for

long. After

the lapse of paramountcy by reason of s. 7

of the Indian Independence Act 1947, the

Nawa.b of

J unagadh became a sovereign but he did not accede to

the new Dominion by executing an Instrument of

Accession as did the other Rulers in Saurashtra. He

left the country. The position of Junagadh w~s thus

unique and what subsequently happened is describ.ed

in the White Paper on Indian States which it has

become customary to rely upon as a constitutional

document, without proof.

"Mter the Nawab of Junagadh had left the State

for Pakistan, the administration of this State was

taken over by the Government of India on Novem­

ber 9, 1947 at the request of the Nawab's Council.

Obviously, the action taken by the Government of

India. had the fullest approval of the people of Juna­

gadh in that the results of the referendum held in

Junagadh and the adjoining smaller States in

February 1948, showed that voting in favour of

accession to India was. virtually unanimous. During

the period the Government of India. held charge of

the State, an Administrator appointed by the

Government of India assisted by three popular re­

presentatives conducted the administration, of the

State. In December 1948, the elected representatives

of the people of Junagadh resolved that the adminis­

tration of the State be made over ~o the Government

of Saurashtra and that the representatives of

Junagadh be enabled to participate in the Consti­

tuent Assembly of Saurashtra State with a. view to

framing a common Constitution for Sa.urashtra and

theJunagadh State. Similar resolutions were adopted

by the representatives of Manavadar, Mangrol,

Bantwa, Babariawad and Sardargarh. Accordingly, a

Supplementary Covenant (Appendix XXXVI) was

executed by the Rulers of Kathiawar States with a

view to giving effect to the aforementioned resolu­

tions. The administration of Junagadh was taken

over

by the

Saurashtra Government on January 20,

1949,..... . Accordingly the Constitution treats

Juna.gadh and these States as part of Sa.ura.sht:ra,"

70

I959

Th• State of

Saurashtra

v.

MemonHaji

Ismail Haji

Hidayatullah ].

c959

The State of

Saurashlra

v.

Memon Haji

I stnail H aji

Hidayatulldh ].

550 , SUPREME COURT REPORTS (1960(1)]

It would appear from this .that between Novem­

ber 9, 1947 and January 20, 1949, there was no forinal

annexation

of

the· State by the Dominion of India,

though the Central Govtirnment through its Regional

Commissioner, Western

India and Gujrat

States Region

was maintaining law

and order and carrying on the

administration.

On November 16, 1947, the following

Notification was issued

by the Administrator:-

"NOTIF'ICATION

No. 9 of 1947.

It is hereby ordered that the J unagadh State

Order No. 568 of 1944 is cancelled. The ·State

Council created by the said order is hereby dissolved.

Any reference required by any Enactment, Rules,

Orders, Convention, Usage etc. to be made to the

Council shall henceforth be made to the Administra­

tor, Junagadh State, in whom all the powers so far

exercised by the Council and its Members shall

henceforth vest.

Junagadh,

16th November, 1947

.

S. W. Shiveshwarkar,

Administrator, J unagadh

State."

From that date the administration of the Junagadh

State was centered in the Administrator as the agent

of the Dominion of India. The people of Junagadh

did not, strictly speaking, become the citizens of the

Dominion till much later. During the interval they

were aliens even though they desired union with India

and had expressed themselves almost unanimously in

the Referendum.

The

act of the Dominion in thus assuming the

administration of the J unagadh

State was an act of

State pure and simple and the action of the Adminis­

trator was taken before the act of State was over.

The respondent contended before us that the theory

of an act of State did not apply to this case. According

to him

the

State Council was in existence and had

invited the Dominion of India to step in and all the

local laws were still applicable. He pointed out that

the Saurashtra Civil Procedure Code was a.mended by

a notification on 7th July, 1948, and that also proved

-

S.C.:R. SUPREME COURT REPORTS 551

that the local laws were in force and the Administra­

tor was subject to them in his dealings with private

property, under the general superintendence .of the

Regional Commissioner. All this is beside the point

and does not truly interpret the act of State which had

taken place. The essence of an act of State is the

exercise of sovereign power and that is done arbi­

trarily, on principles either outside or paramount to

the municipal law. The fact that the sovereign allows

the inhabitants to retain their old laws and customs

does

not make the sovereign subject to them and all

rights under those laws are held

at the pleasure of the

sovereign. It is only when the sovereign can be said

to

have purported to act within the laws that the act

of State ceases to afford a plea in defence. Before that

stage is reached, government may be influenced by the

existing laws and rights and obligations but is not

governed or bound by them. See Campbell v. Hall (

1

),

Ruding v. Smith (

2

)

two cases of conquest and E. I.

Co.

v. Syed Ali (

3

). See also Mayne Criminal Law of India

(4th Edition) II pp. 119, 120 where the law is

summarised. There is nothing

to prove that the

Dominion had expressly or even tacitly recognized the

old rights, the .burden of proving which lay upon the

respondent Secretary of State for India v. Bai Rajbai

(

4

)

and Vaje.singh's case (

5

) (op. cit.).

In this view. of the matter it is not necessary to

determine whether the Na.wab could or did confer title

on

the donee in respect of this property. Equally

fruitless will be

an inquiry into the powers of the

Na.wab to resume or derogate from, his grants and

whether similar or identical powers were inherited by

the Dominion Government or its a.gents. The action

of the Dominion Government being

a.n act of State, the

act of the Administrator, however arbitrary, was not

justiciable in the municipal courts and the suit was

not well founded.

The appeal is, ther~fore, allowed. The respondent's

suit shall be dismissed with costs. throughout.

Appeal allowed.

(l) l Comp. ~04; 98 E.R. 104.5· (3) 7 M.I.A. 555 at 578.

(2) 2 Hag. Con. 3g4; 161 E.R. 774. 14}L.R. 4z I.A. :z29.

(5) (1924) L.R. 51 J.A. 357, 36o.

I959

The State of

Saurashtra

v.

l'.f emon H aji

Ismail Haji

Hidayatullah ].