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If on the other hand they were deemed not to have been parties to the same they would not be the contracting parties and would certainly not be able to enforce these obligations. PRE |
It was therefore urged on behalf of the Petitioners that the dispute between the parties did not arise out of the provisions of the agreements of merger and the letters of guarantee which were entered into or executed by the Rulers of the respective States and to which the Government of the Dominion of India was a part... |
According to the Petitioners they merely challenged the vires of the impugned Act and relied upon clause 5 of the letters of guarantee in order to establish the position that the State Legislature had no legislative competence to legislate on the subject of the abolition of jagirs. Ratio |
That was, it was submitted, not a dispute arising out of the agreements of merger and letters of guarantee but arose out of the act of the State Legislature in enacting the impugned Act in direct contravention of the guarantee incorporated in clause 5 of the letters of guarantee. Ratio |
This argument however would not avail the Petitioners, because if one looked into the averments contained in their petitions it was clear that the whole ambit of the petitions was to enforce clause 5 of the letters of guarantee. Ratio |
The Petitioners relied upon clause 5 of the letters of guarantee which had been obtained by the Rulers of the erstwhile State from the Dominion Government and complained that the State Legislature had enacted the impugned Act which it had no power to enact having regard to clause 5 of the said letters of guarantee and ... |
The whole of the petitions were nothing else except the 177 claim to enforce the Petitioners ' rights under the letters of guarantee, and the disputes therefore were clearly in respect of the agreements of merger and the letters of guarantee and were covered by article 363 (1) of the Constitution. Ratio |
A similar contention had been raised on behalf of the plaintiffs in State of Seraikella and Others vs Union of India and Another(1) and was repelled by Kania, C.J. at page 490 as under: "The plaintiff contends firstly that it had signed the Instrument of Accession through its Ruler. Ratio |
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 Dominion of India and the State of Bihar are making laws which they have no power to make, ha... |
The whole plaint is nothing else except the claim to enforce the plaintiff 's right under the Instrument of Accession. Ratio |
The dispute therefore in my opinion clearly is in respect of this Instrument of Accession and is covered by Article 363(1) of the Constitution of India. Ratio |
The question of the validity of the different enactments and orders is also based on the rights claimed under the Instru ment of Accession so far as the plaintiff is concerned". Ratio |
It could not therefore be urged that what the Petitioners were doing was not to enforce the obligations undertaken by the Dominion Government under the agreements of merger and the letters of guarantee, or that the disputes between the parties did not arise out of the provisions of the agreements of merger and the lett... |
(1) ; 23 178 If that was the position the jurisdiction of this Court was ousted and this Court could not interfere in those disputes. Ratio |
Assuming however that the Petitioners were entitled to enforce the obligation and guarantee incorporated in clause 5 of the letters of s guarantee the further difficulty in the way of the Petitioners is that the State Legislature was fully competent to enact the impugned Act notwithstanding the terms of the guarantee. ... |
The legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation ... |
It was conceded on behalf of the Petitioners that the topic of legislation which was covered by the impugned Act was well within List II of the said Schedule and the vires of the impugned Act could not be challenged on that ground. Ratio |
The ground of attack was that the Dominion Government and therefore the State Government bad waived its right to legislate on the topic of the abolition of jagirs or had in any event put a fetter or limitation on their power to issue any legislation in that behalf by the terms of the guarantee contained in clause 5 of ... |
It was contended that under the terms of clause 5 an absolute guarantee had been given by the Dominion Government in regard to the enjoyment of the ownership of jagirs and that the Dominion Government and therefore the State of Bombay were precluded from enacting any legislation which had the effect of destroying that ... |
This contention however could not be supported by the terms of clause 5 which embodied in the first part thereof the terms of the guarantee, and went on to provide in the second part that this guarantee was without prejudice to the right of the Government of Bombay to issue any legislation which did not discriminate ag... |
It was therefore not an absolute guarantee but was circumscribed or cut down by the reservation of the power to make law with respect to jagirs provided such law did not discriminate against the States and their subjects. Ratio |
The right of the Government of Bombay which was thus reserved covered the whole of the guarantee embodied in the first part of the clause and there was nothing in these terms which would go to show that the ownership of the jagirs could not be touched and the legislation, if any, was to be enacted in regard to certain ... |
The right of the Government of Bombay to issue any legislation with regard to the enjoyment of the ownership of jagir lands was expressly reserved and this right covered also legislation in regard to the abolition of the jagirs and the Government of Bombay was therefore entitled under the terms of this clause 5 to issu... |
That was the only fetter or limitation, imposed upon the right of the Government of Bombay to issue any legislation in regard to the enjoyment of the ownership of jagir lands and if that fetter or limitation could also be imposed on the State Legislature the Petitioners would have had a right to challenge the impugned ... |
The fetter or limitation upon the legislative power of the State Legislature which had plenary powers of legislation within the ambit of the legislative heads specified in the Lists II & III of the Seventh Schedule to the Constitution could only be imposed by the Constitution itself and not by any obligation which bad ... |
Under Article 246 the State Legislature was invested with the power to legislate on the topics enumerated in Lists II & III of the Seventh Schedule to the Constitution and this power was by virtue of article 245(1) subject to the provisions of the Constitution. Ratio |
The Constitution itself laid down the fetters 180 or limitations on this power, e.g., in article 303 or article 286(2). PRE |
But unless and until the Court came to the conclusion that the Constitution itself had expressly prohibited legislation on the subject either absolutely or conditionally the power of the State Legislature to enact legislation within its legislative competence was plenary. Ratio |
Once the topic of legislation was comprised within any of the entries in the Lists II & III of the Seventh Schedule to the Constitution the fetter or limitation on such legislative power had to be found within the Constitution itself and if there was no such fetter or limitation to be found there the State Legislature ... |
The Petitioners would have a legitimate grievance in the matter of the deprivation of their rights of ownership of the jagir lands in so far as the States and their subjects were discriminated against, but they would not be able to have their grievance redressed by this Court for the simple reason that the State Legisl... |
The provisions of article 294(b) of the Constitution which is said to have transferred the obligations of the Government of the Province to the State of Bombay would not by involving the transference of the obligation undertaken by the Dominion Government in clause 5 of the letters of guarantee to the State Government ... |
The remedy of the Petitioners would be else where and not in this forum. Ratio |
The learned Judges of the Federal Court gave an answer to a similar complaint of the Taluqdars of Oudh made by them against the United Provinces Tenancy Act XVII of 1939 in Thakur 181 Jagannath Baksh Singh vs The United Provinces(1) at page 87: "We desire, however, to point out that what they are now claiming is that n... |
We hope that no responsible Legislature or Government would ever treat as of no account solemn pledges given by their predecessors; but the readjustment of rights and duties is an inevitable process, and one of the functions of the Legislature in a modern State is to effect that readjustment, where circumstances have m... |
It is however, not for this 'Court to pronounce upon the wisdom or the justice, in the broader sense, of legislative acts; it can only say whether they were validly enacted. . . . . . . " These observations were quoted with approval by Their Lordships of the Privy Council in Thakur Jagannath Baksh Singh vs The United P... |
No argument has been advanced before us which would enable us to hold that the impugned Act was ultra vires the State Legislature, the only ground of attack being that it was in contravention of the guarantee given in clause 5 of the letters of guarantee. Ratio |
But that position is of no avail to the Petitioners. Ratio |
Considerable argument was addressed before us based on the comparison of the provisions of the various Acts of the Bombay State Legislature enacted during the years 1949 to 1953 in regard to the abolition of the various tenures obtaining within the State of Bombay with the provisions of the impugned Act, with a view to... |
182 and their subjects within the meaning of clause 5 of the letters of guarantee. Ratio |
We have not thought it necessary to refer to the same in view of the conclusion which we have reached above that the impugned Act was intra vires the powers of the State Legislature and the State Legislature was quite competent to enact the same. Ratio |
Even if it could be demonstrated that the provisions of the impugned Act were confiscatory as well as discriminatory in the manner suggested, the jagirs of the Petitioners (except in the case of the Petitioner in Petition No. 364 of 1954) were all estates within the meaning of the term as defined in Article 31 A(2)(a) ... |
Any challenge therefore on the ground of the impugned Act violating the fundamental rights of the Petitioners under article 14 or article 19(1)(f) or article 31(2) of the Constitution was not available to the Petitioners. Ratio |
On the other hand if the grievance was that the impugned Act had brought about dis crimination in breach of clause 5 of the letters of gua rantee then the dispute clearly arose out of the letters of guarantee and would by article 363 be placed beyond the jurisdiction of this Court. Ratio |
The Petitions of the Petitioners except Petition No. 364 of 1954 which would be dealt with immediately hereafter therefore fail and are liable to be dismissed. RPC |
Petition No. 364 of 1954 In addition to the grounds common to all the Petitions which we have already dealt with above the Petitioner in Petition No. 364 of 1954 claims that he is the owner of the 60 villages in the Putta or territory of Moti Moree comprised in the erstwhile State of Idar as the Bhumia or underlord and... |
In support of his contention he has traced the history of Moti Moree since 1250 A.D. and in any event since 1800 A.D when the then Chieftain of Moti Moree entered into a treaty with the Maharaja Zalimsinh of Modasa whereby in consideration of payment of Rs. 361 annually the said Zalimsinh agreed to protect Moti Moree a... |
He has pointed out that thereafter Modasa was absorbed into the Taluka of Amnagar in 1821 and subsequently in about 1849 it reverted to Idar State and continued with the Idar State until the latter merged into the Province of Bombay in 1948. ARG |
He contends that he and his predecessors were enjoying and exercising full sovereign rights over Moti Moree ever since the said treaty of 1800 and their position had remained unchanged, their only liability being to pay Rs. 361 annually for protection. ARG |
He further contends that they were enjoying the rights of excise and customs and revenue, that they did not pay any revenue to the State of Idar and enjoyed and continued to enjoy rights over all lands, forests, minerals, river beds, village sites, etc. ARG |
and that when the Ruler of Idar wanted that there should be uniform customs levy throughout the State, the said Ruler had to give compensation to the Petitioner and had also similarly negotiated with them and had to pay compensation to them in respect of salt, opium, excise etc. ARG |
He has pointed out that Rs. 457 for customs ' Rs. 40 for opium and Rs. 7 for salt were being paid annually by the erstwhile State of Idar and thereafter by the Government of State of Bombay to him by way of compensation for these sovereign rights of his, which amounts were set off against Rs. 361 being the annual payme... |
These rights of his recognised by the erstwhile State of Idar and also by the State of Bombay constituted him a Thakur or underlord of Moti Moree and he contends that his estate of Moti Moree is not a jagir within the definition of the term given in the impugned Act. Ratio |
Our attention has also been drawn in this behalf to 184 Bombay Gazetteer, Vol. 5 (1880), page 398, where Mori (Meghraj) is described as the estate of the original landlords Bhumias otherwise described as petty chiefs and underlords and to page 409 where the underlords (Bhumias) are stated to be the early chiefs who set... |
The State of Bombay on the other hand has denied the several allegations contained in the petition and contends that in the year 1891 the erstwhile State of Idar had conferred upon the Thakore of Moti Moree the powers of a Third Class Magistrate as an act of "grace", that in 1902 the management of the estate was taken ... |
It therefore contends that the Thakore of Moti Moree, the Petitioner is a jagirdar and Moti Moree is a jagir within the meaning of the definition thereof given in the impugned Act. Ratio |
These allegations and counter allegations do not however carry the matter any further. Ratio |
In order to exclude Moti Moree and the Petitioner from the operation of the impugned Act it will be necessary for the Petitioner to establish satisfactorily that Moti Moree is, not a jagir within the definition thereof given in the impugned Act. Ratio |
Even though the allegations of the Petitioner go far enough to make it probable that Moti Moree was neither held by the Petitioner and his ancestors under a grant or was not recognised as a grant by the Ruler of the erstwhile State of Idar, that would not be enough to enable us to grant him the relief prayed for by him... |
The question requires to be completely thrashed out and adjudicated upon by a Court of law after going into the evidence 185 adduced before it by both the parties. Ratio |
The learned Attorney General appearing for the State of Bombay has therefore submitted that this question should be enquired into by a proper tribunal and the Petitioner should be referred to a civil suit in order to establish his rights. Ratio |
We accordingly feel that the Petition No. 364 of 1954 should be adjourned till after the disposal of a civil suit to be filed by the Petitioner in the proper Court for a declaration that Moti Moree is not a jagir within the definition of the term as given in the impugned Act and for consequential reliefs. RPC |
The learned Counsel for the Petitioner has given us to understand that a formal notice under Section 80 of the Civil Procedure Code in this behalf has already been served by the Petitioner on the State of Bombay. Ratio |
We therefore order that the Petitioner do file the necessary suit within 3 months from this date and this petition do stand adjourned till after the hearing and final disposal of that suit. RPC |
The stay granted by this Court in this petition will continue in the meanwhile. RPC |
We may record here that the learned Attorney General on behalf of the State of Bombay has also given his undertaking not to take any steps against the Petitioner in the meanwhile. RPC |
Petitions Nos.337 to 349, 365, 366, 481 and 690 of 1954 will therefore stand dismissed. RPC |
Petition No. 364 of 1954 will stand adjourned sine die till after the disposal of the civil suit to be filed by the Petitioner as above indicated. RPC |
If no such suit is filed within the aforesaid period this petition will also stand dismissed. RPC |
Each party will bear and pay the respective costs of the petitions. RPC |
ivil Appeal No. 158 of 1954. FAC |
Veda Vyas, (section K. Kapur and Ganpat Rai, with him), for the appellants. FAC |
M. C. Setalvad, Attorney General for India (.ill. FAC |
N. Phadke and Naunit Lal, with him), for respondent No. 1. 1955. FAC |
May 2. FAC |
The Judgment of the Court was delivered by JAGANNADHADAS J. FAC |
This is an appeal by special leave against the Judgment and order of the Election Tribunal, Akola, Madhya Pradesh, dated the 1st May, 1953, dismissing the election petition filed by the appellants. Ratio |
It relates to the election for the Akola Constituency of the State Assembly of Madhya Pradesh which was held on the 13th December, 1951, and the result of which was notified in the Gazette on the 4th April, 1952. FAC |
The two appellants are the electors of the said constituency. FAC |
The first respondent was the successful candidate at the election. FAC |
Respondents, Nos. 2, 3 and 4 were the other three candidates who, having been validly nominated went to the polls but were defeated. FAC |
The appellants filed the election Petition under section 80 of the Representation of the People Act, 1951 (Act XLIII of 1951) (hereinafter referred to as the Act ' for setting aside the election on various allegations. STA |
The Election Commission admitted the petition after condoning the delay under the proviso to section 85 of the Act and thereupon constituted a Tribunal for the trial of the petition at Akola by notifications dated the 30th July, 1952, and 22nd September 1952. FAC |
In due course respondent No. I appeared and filed his written statement on the 6th October, 1952, and the petitioners filed their reply thereto on the 16th October, 1952. FAC |
With reference to these pleadings, the Tribunal was of the opinion that it was advisable to frame certain preliminary issues and to dispose of the same before entering on the 431 trial of the case on its merits. FAC |
Accordingly, nine pre liminary issues were framed. Ratio |
(2) Whether there was sufficient cause for presentation of the petition one day out of time. Ratio |
(3) Whether the petition was defective for non joinder of certain parties as respondents. Ratio |
(4) Whether the petition is defective for want of proper verification. Ratio |
(5) Whether the petition was defective for vagueness of the particulars relating to the corrupt practices set out in Schedule A thereto. Ratio |
The Tribunal found only the first of the above points in favour of the petitioners by a majority. Ratio |
But in respect of the other four points, it held against the petitioners unanimously. Ratio |
It is against this dismissal that the appellants have now come up to this Court on obtaining special leave. Ratio |
Before dealing with the merits of the appeal, it may be mentioned that at an early stage of these proceedings before the Tribunal, an objection was taken to the composition of the Tribunal on the allegation that one of the Members, Shri A. section Athalye was not competent to be a Member thereof on account of his alleg... |
The bias was sought to be made out by showing that shortly before the election, Shri Athalye had written a letter to the 1st respondent offering to assist him in his election campaign. Ratio |
On objection being taken, the Tribunal stayed its hands for a preliminary decision of that question. Ratio |
Meanwhile, the petitioners took proceedings in the High Court for the quashing of the constitution of the Tribunal on the above ground by means of an application under article 226 of the Constitution. Ratio |
That application was dismissed after hearing both sides. Ratio |
Thereupon the petitioners moved this Court for special leave against the order of the High Court. Ratio |
But this Court declined to grant leave. Ratio |
But this having been already determined against the petitioners in the previous proceedings, we declined to allow the matter to be reopened. Ratio |
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