STATE OF SERAIKELLA v. Union of India

On the 15th December, 1947, an agreement is alleged to have been the Governor entered into between General of India and the Ruler of the plaintiff State. 'By that document the Raja ceded to the Dominion jurisdiction Government full and exclusive authority, and powers for and in relation to the governance of 4-62 s. a. India/59. 1951 Stat• of S1rafk, lla and Others v. Union of l•di4 *1ld Anolillr. KaniaC.]. 478 SUPREME COURT REPORTS [1951] in this clause had been 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 Privy Purse of the Raja and it is contended by plaintiff that when the Raja signed the document the figure left -blank. Under article 3 of that agreement, it was provided that Raja would be entitled to the full ownership, use and enjoyment of all private properties belonging to him on the date of the agreement and that by the 1st of Janliaty, 1948, the Raja will furnish to the Dominion immovable propertieS; Government an inventory of all securities and cash held by him as such private pro perty. 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-provincial jurisdiction in such manner as it thinks fit and the Central Government may dele gate 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 provided Central Government may by notification in the official Gazette make such orders as may seem to it expedient for the effective exercise of any extra-provincial diction of the Central Government. A notification under' section 4 of that Act was thereafter issued by the Central Government delegating, under section 3, the power£ contained in that Act to the Province of Orissa. On the 18th of May, 1948, that notification was can celled 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 Govern ment of Bihar passed an order called "The Seraikella and Kharaswan States Order" providing administration of the States. On the 5th of January, India, l!m, the Legislative Assembly of s.c.l\. SUPREME COURT REPORTS which was also bly, passed the Constituent Assembly Act and added section 290-A to the Government of Act, 1935. That section runs as follows :- functioning as the Constituent Assem I of 1949 India "Administration of certain Acceding States as a Chief Commissioner's Province or as part of a Gover nor's or Chief Commissioner's Province- 1951 Stat1 of Seraikella and Others y, Uuion of India anti Ano th#. Kania C. J• (1) Where full and exclusive jurisdic tion 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 Govern ment, the Governor-General may be Order direct authority, (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 State or the group of States formed part of a Governor's or a Chief Com missioner's Province specified in the Order : Provided that if any Order made under clause (b) of this sub-section affects a Governor's Province, 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 inserted therein. the provisions to be (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 Pro vince 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, consequential directions (including directions as to representation in the Legis lature) as he may deem necessary. incidental and ( 4) In 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 1951 State of Seraikella a.1d Oiht1J ... Union oj"lndia and AMlh.,, Kania C. J. 480 SUPREME COURT REPORTS [1951} (Governors' Provinces) Order of 1949. The result of that was the plaintiff State is claimed to have merged in the Province of Bihar. Indeed it is contended that as the 15th of December, 1947, that on the 18th May, 1948, without The plaintiff State contends that the Government of to administer Orissa wrongfully and illegally purp9rted the plaintiff State by virtue of the .Notification of the 23rd of December, 1947, under Act XLVII of 1947. It is claimed that the Act was and is ultra vires and ot no effect and not binding on the plaintiff State. The alleged agreement of contended to be void for want of consideration and is inoperative. the figure was left blank there was no agreement at all. It is contended consent and approval of the plaintiff State or its .Ruler, illegally took the Province of Bihar wrongfully and the administration of the State and passed the Seraikella and Kharsawan Administration Order, 1948. the plaint it is contended that the In paragraph 10 of Dominion of India had no authority to go beyond the Instrument of Accession, had no authority to delegate powers plaintiff State and inoperative as it went beyond the ambit of illegal and . 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 authoritii 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, also void. The enactment of the Constituent Assembly Act I of 1949 is contended to be ultra vires and illegal. That Act is that it assent of the Governor was enacted without the General of India. the defendants, viz., the Union of India and the State of Bihar, deny and are interested in denying the exist ence or entity of the plaintiff State and in disputing rights, privileges, powers and prerogatives of its the private properties as Ruler as well as the right to set out in the annexure. The States Merger Order of to the Province of Bihar to administer further challenged on the ground the said Order, in any event, It is contended in the plaint 1951 State of ~ Seraike/la and Others v. Union of India mrd Another . Kania C.J. s.e.R. SlJPREME COU.RT REPORTS 481 Indian Interpretation of that the dispute between Independence Act, 1947, in the Dominion by virtue of the l949 is .contended to be an abuse -of power and autho.. India. Act, rity and a fraud on the Government of 1935, and the Indian It is India or the Consti contended that the Government. of tuent Assembly had no ~uthprity to pass any legisla . tion on ·a matter not specified in the Schedule to the In paragraph 19 of the plaint Instrument of Accession. the parties it is contended the exist comprised and involyed questions on which ence or extent of legal rights depends and the plaintiff the same. These disputes concern State is a party to the intc; rpretation of the Government of India Act, 1935, and/or of an order made thereunder J.nd/or the Independence · Act and/or interpretation of the .extent of. autho an order made thereunder and/or the Instru rity vested ment of Accession of the plaintiff .State. The prayers the relevant provisions of are: (a) the Government of India Act, 1935, the Indian Inde pendence Act, 1947, and the States Merger Order, 1949. (b) For a declaration that the Dominion Government jurisdiction had no authority to assume any power or beyond Instrument of specified in Accession and had no authority to delegate · any · power in relation to the plaintiff . State to the Provincial Government of Bihara ( c) For a declaration tha~ Act XL VII of 1947, the Constituent Assembly Act I .of 1949, India Act, 1935, section 290-A of the Government of as adapted, and the States Merger Order, 1949, are ultra vires, illegal and .inoperative in so far as they are made applicable to the plaintiff ~tate 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 authority or jurisdiction to carry on tlie administration ·of the plaintiff State and tMt. the alleged merger was illegal and unauthorized : ( e) For a declaration as to the rights of th.e parties and as to the extent of the authority of the Domini9n of India over and in respect of the plaintiff State; (f) For a declaration that· the. plaintiff State retained its entitv and territ6ri:il . integrify; that its administration' should the matters 482 SUPREME COURT REPORTS (1951} 1951 State of Seraiktlla muJ Others v. Union of India and Another. KaniaC.]. 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 unaffected ; 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 India Agency were filed also before the Constitution of came into force on the 26th of 1950, on the in four of them the agreement same lines, except 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. January, The material part of section 6 of the Government of the accession of India Act, 1935, which provides for Indian States, runs as follows :-

#6. Accession of Indian States.-(1) An Indian State to the Dominion .if shall be deemed to have acceded 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 established for the purposes of the Dominion shall, by virtue of his Instrument of Accession, but, subject always to the terms thereof, and for the pur poses 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 effect is given within the State to this Act so far as of the Instrument of Accession. the obligation of ensuring that due the provisions of they are applicable therein by virtue (!) An Instrument of Accession shall specify the matters which the Ruler accepts as matters with res pect to which the Dominion Legislature may make laws for the State, and the limitations, if any, to which the i95t S1a1; ef. Seraiklili& tiild Olhits v. Union of IlliiilJ iJlltl Anolfltf. KaniaC.j. SUPREME COURT REPORTS sm. power of the Dom.inion Legislature to ~e laws for the State, and the exercise of the cxecuttve authority to be of the subject. :Dominion in the State, are respectively 481 (3) A Ruler may, by a ,supplementary Instrument eYl"CUted by him and accepted by the Governor-General, Instrument of Accession of his State by Instru• extending the functions which by virtue of that ment are exercisable by any Dom.inion :relation to his State. • authority • • • (5) In this Act a State which has acceded to the Dominion is referred to as an Acceding State and the Instrument by virtue of which a State has so acceded Instru construed ment executed under this section, is referred to as the Instrument of Accession of that State .... " together with any supplementary A supplementary · Instrument executed under sub section (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 that State. The supplementary Instruments signed by the four States only bring within the scope of discus sion those supplementary Instruments on the. footing that they were a part of the Instrument of Accession. Instrument of Accession of 1 defendants contesting the contentions raised the Court. Several Written statements have been filed on behalf of the in the , plaint. There are several contentions in respect of the jurisdiction of contentions cover pure issues of law and some raise issues of fact in res the document of 15th December, 1947. The pect of parties agreed on the issues and they have been filed in Court. further agreed between the parties that issues 1, 3, 4, 5, 6 and 7 may be tried as prelimi nary issues and we have heard counsel on those issues fully. The-first issue is in these terms: It was "Whether, having subject-matter of the suit and the provisions contained in article 363 (1) the Constitution of India, this Hon'ble Court has jurisdiction to entertain the suit." regard to the 1951 Sime of Seraikella ...i 011im v. U~n oflndi• aad AnotM?.. .K4~UJ ~~.3. 484 StlJP.llEME COURT REOORTS [1'951] I do not January, 1950, had original In the view I take of this issue think it issues raised necessary to discuss the other preliminary jurisdiction. For determining this on the question of that the Federal Court, prior to issue, it may be noted jurisdiction the 26th of in respect of matters covered· by section 204 of section, that Gove.rnment of India Act. Under that Court had jurisdiction in any dispute between a State and the Dominion if and in so far as the dispute involv on which ed any question (whether of law or fact) right depended, provided existence or extent of a legal jurisdiction did not extend to a dispute .that the said 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 ex tend to- · ' (a) a dispute to which a State is a party, unless the dispute- (i) concerns th<" "interp.retation 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 that date, or the interpretation thereunder on or after Indepepdence Act, 1947, or of any order of ·the Indian legislative or made thereunder, or the extent of the in the Dominion by virtue executive authority vested of the Instrument of Accession 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. The suit than a declaratory ment other January, 1950, having been filed prior to the 26th of transferred to this Court under article the suit stOOd 374 (2) of the Constitution of India. That article. runs as follows i - "374. (2) All suits, appeals, and . proceedings, civil or criminal, pending in the Federal Court at the com mencement of this Constitution shall stand removed the Supreme Court shall have the Supreme Court, and same, and the jurisdiction to. hear and determine· the S.G.R. SUPREME COURT REPORTS. 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 ·d( livered or made by the Supreme Court." Article 131 of the Constitution deals with the origi nal jurisdiction of the Supreme Court and its material portion runs as follows :- 1951 State of Seraikel/a and Others v. Union of India and Another. Kania C.J "Subject to the provisions of ·this Constitution, the jurisdiction in original Supreme Court shall .... have :any dispute .... (b) between the Government of India :ind any State Qr States on one side arid 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 1egal 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 · treaty, agreement, covenant, -of any provision of a engagement, sanad or other similar instrumel).t which was entered into or executed before ·commencement -of·· this Constitution and has or has been continued in <Operation after such commencement." The, States specified in Part B of the First Schedule <lo not mention any ,of the plaintiff States. ..Article 363 of the Constjtution of India runs as follows :- to the provisions of article "363. (1) Notwithstanding anything in this Consti tution but subject 143 neither the Supreme Court nor any other court shall 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 Constitution by any Indian State and to India or which the Government of· the Dominion of 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 w:ruing under or any liability or obligation :Ruler of an - 1951 State ef Seraiktlla and OtlurJ v, Uniot• of India and Anot/rn. Kania C.J. SUPREME COURT REPORTS [1951J arising out of any of tion relating to any such engagement, sanad or other similar instrument. the provisions of this Constitu treaty, agreement, convenant, (2) In this article- ( a) 'Indian State' means any territory recognised before the commencement of this Constitution. by His India Majesty or the Government of the Dominion of as being such a State ; and (b) 'Ruler' includes the Prince, Chief or other person. recognised before· such commencement by His Majesty India as the or the Government of the Dominion of Indian State." Ruler of any The first question arising for to try the suit as India consideration is the. true interpretation of article 374 (2) of the Constitu tion of India. It was argued that the Federal Court had jurisdiction framed before the Constitution of into operation. Under article 347 (2) that suit stood removed to the Supreme· jurisdiction to try this suit Court and the question of 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 It was argued that if there this article. was any limitation on the jurisdiction of the SQpreme Court to hear such a suit, (if instituted in it under its original jurisdiction), such limitation is not relevant to respect of suits which stood trans be considered in ferred 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 Coutt, if its jurisdiction is construed as limited by virtue of the different article.~ of the Constitution. In this connection, some reliance the use of the word 'jurisdiction' . as; was placed on · connected with the Supreme Colll't in article 374 (2). In my opinion, this argument is unsound. Article 374 is in the Part dealing with transitional provmons. it is provided that the Judges of the Federal Court holding office ~ore tht! commencement of the . Constitution, unless they have In article 374 (1) temporary and 1951 State of Straikel/a and Others ·V. Union °of India. and Another. Kania C.J. S.C.R. SuPREMl!: COURT REPORTS 487 that, in my opinion, . elected otherwise, become Judges of the Supreme Court. in my opinion, Article 374 (2), similarly provides, firstly, for the removal .of all suits, appeals and pro ceedings, civil or criminal, pending in the Federal Court to the Supreme Court and, secondly, provides that the Supreme Court shall have jurisdiction to hear 'lt may be noticed that and determine these matters. in this clause provision is made not only in respect of suits but of civil and criminal appeals and also of other pending procee-Oings. By providing only removal of these matters to the Supreme Court, there lacuna, if it was not furth~r stated that will remain a after such removal the Supreme Court shall have juris the matters. It is from that point of diction to try the Constitution view only jurisdiction states that the Supreme Court shall have to hear and determine is not I think correct to read those words as giving to the Supreme jurisdiction in these matters. Two Court an extended considered in determin stages have ing 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 Fede-. ral Court ; and (2) whether on removal the Supreme jurisdiction to hear and determine the same Court has having regard to all the provisions of the Constitution relating to the jurisdiction of the Supreme Court. It must be n,,oticed that the Supreme Court was a new It had Court established by the Constitution of no existence before that. The jurisdiction of that Court considering all the relevant articles of the Constitution of India. It is in that the provisions of article 363 have to be that light read and interpreted. therefore to be ascertained by therefore to be the same. India. Before doing so I think it is essential to bear in mind the political ba~kground. 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 1951 Statt of Straik11lla and Olhers v Onion of India and Anothtr. .KaniaC.J. 488 SUPREME COURT REPORTS [1951] Indian Independence Act. administration was controlled under the advice of. the Political Department of the Government of India, on the footing that the King . was the Sovereign and had those States. the right to exercise suzerain powers over 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 changes in its Constitution. rnake any for India or These were left to India. As regards the Indian States, while provision continued in the Governm.ent of India instruments of accession, Act for the Rulers signing India no suzerain rights were given to the Dominion of If, therefore, the by the India or any of these States committed Dominion of 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 to any of these Act also did not provide any relief Instrument of Indian States unless Accession. With the passing of the Constitution of India, India became a Sovereign Independent Republic. If that Dominion or Republic committed any .acts of aggression towards a neighbouring Indian State (as is convenient to. describe under the circumstances) Supreme Court has no jurisdiction to give relief to Indian . State. A.s 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 instru ment, it w.ill not ·be .entertained by this Court if the conditions of the proviso apply to the same. It is with to read article 363 of this background the Constitution. that we have signed an The opening words of that article in terms override all provisions of the· Constitution, but are made subject only to the provisiQO.s of article 143 which enabks the President to consult · the Supreme Court on matters referred to it. These all embracing opening words of article .363 thcrefo~ clearly override the operation of 1951 Stale of Seraikella and Othns v. u .. ion of l1zdit& and Another. KaniaC.J. S.C.R. SUPREME COURT REPORTS 489 anything contained If . therefore covenant, engagement, continued in operation 131-136, article 363 provides article 374 (2) also. The result is that article 363 is the controlling .article over article · 374(2) also. The juris diction of the' Supreme Court having been stated in articles that notwith in . those articles and standing other articles of the Constitution, neither the Supreme Court nor any other court will have jurisdiction in any dispute arising out of any provision of a treaty, or other agreement, similar instrument which was entered into or executed commencement of this Constitution and before which has or has been such commencement. the dispute arises in respect of a document of that description and if such document had been executed Qefore the Constitution by a Ruler and which was or had continued in opera commencement, this Court has no tion after jurisdiction to determine such argued that as the agreement had to be in operation after commencement of the Constitution, no dispute can arise in respect of ·such document before the com mencemenr of the Constitution and therefore as the dispute in the present case had arisen before the com 363 had no the Constitution, article mencement . of operat~on. In my opinion, this is not a correct reading related only to of article 363 (1). The the document in question and not the dispute. It is provided that such. document should have been executed before the Constitution came into force and has to be in operation after the dispute, which is the subject-matter of the litigation, may arise before or. after. the Constitution, but time factor is It was issue. It was argued that the article is prospective and retrospective. Therefore it onlv covers the which are filed in the Supreme cOurt after the Consti tution comes into force and does not affect suits filed in the Federal Court before the Constitution of India came this argument is based into operation. to the words "prospec on a mistaken meaning given that the tive" and "retrospective". however Constitution It is· not disputed is prospective. The question In my opinion • 1951 'Stal< ef Setail¢Ua and Others v. Onion ef India and .Another. .KaniaC.J. SUPREME COURT REPORTS [1951] If the plaintiff is that the Supreme Court having been created by the Constitution itself, on the Court proceeds to the day determine the matter, what according to the Consti tution of India, is the jurisdiction of this Court. This approach doc~ not make the provision retrospective. In this connection, language of arti the similarity in cles 363 (1) and 131 proviso (i) may be noted. Con sidered 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, or any other similar instrument. I have already noticed the agreement of above that the dispute in respect of the 15th December, 1947, is immaterial for the present discussion. repudiates that agreement he is seeking to enforce his rights after ignoring the If the plaintiff (as noticed in four of the suits) same. relies on this agreement, it becomes a part of Instrument of. Accession under section 6 (5) of 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 Instrument. The Accession and question thus plaint and to find out what the plaintiff seeks . to get by his suit. Apart from the fact that in prayers (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 Instru ment of Accession. The plaintiff contends firstly that Instrument of Accession through its it had signed the Ruler. The State next complains that, acting beyond Instrument of Acces the powers given over under the sion, the Dominion of India and the State of Bihar are ;md executive trespassing wrongfully on its legislative functions, that the Dominion of India and the State of Bihar are making laws which they have no power to make having regard Instrument of Accession, and arc wrongfully interfering with the administration of the State beyond the rights given to them under Instrument of Accession. The whole plaint i$ into an analysis of supplementary resolves itself to the S.C.R. SUPREME COURT REPORTS 491 and is covered is in respect of The defendants contend nothing else except the claim to enforce the plaintiff's Instrument of Accession. The dispute .right uhder the therefore in my opinion clearly Instrument of Accession by article 363 (1) of the Constitution 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 Instrument of Accession and they do not admit the the disputed rights daim that exercising Instrument. Their contention under that is that the Agreement of the 15th of December, 1947, was validly signed and is binding and enforceable against the plaint action in iff. passing the disputed, and the legislation action in taking over the administration are all based If the plaintiff contends that that Agreement is not binding rights under on it, it cannot enforce its the original If the plaintiff has a griev jurisdiction of the Court. ance 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 the transfer of the suit from the Federal Court. Accord the defendants, the situation in those ing to circum Independent State stances will be of a Sovereign trespassing on privileges the territories, powers of another neighbouring independent State. To redress a grievance arising out of such action on the part of the defendants, the Supreme Court is not the forum to is answered in the negative ' ·costs costs m that Agreement of 15th December, 1947. relief. The . and orders jurisdiction e cause. VMAN BosE J.-1 agree. a batch of PATANJALI SASTRI J.-This brought by plaintiffs claiming to be Acceding States reliefs in regard to the allep; ed for certain declaratory wrongful merger of their in the territories of the adjoining Provinces of Bihar and India was impleaded as the Orissa. The Dominion of respective territories 1951 State of Seraikella and Others v, Union of India and Anot"'r. KaniaC. J. Pattm, iali Saslri J. 1951 State of Straiktlla anti Others v. Union of India and Another. Patarefali Sastri]. 492 SUPR£ME COURT REPORTS [1951} first · defendant, and the Province of Bihar or the Province of Orissa, as the case may be, as ·the second defendant. the Governor-General of the rights and obligations (Governors' Provinces) Order, The suits were instituted in the Federal Court of India under section 204 of the Government of India Act, 1935, shortly before the comm~ncement of the new certain minor variations, Constitution. Apart the substance of the plaintiff's case in each suit, shorn of verbiage, is that the merger and the taking over of territory concerned; carried the adminiscration of the out in purported exercise of powl:rs conferred by 1949, State Merger India under sec made by tion 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 sover eignty of the Ruler in .and over the State, and that all notifications, orders or enactments issued or made in flowing out of violation of that Instrument were ultra vires, void and inoperative. In the plaints in Suits Nos. 1, 2 and 3 reference · was into between the Governor-General and the Ruler concerned· in. Decem ber, 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 afore said" it was contended that "the actions taken by the defendants the orders, legislation mentioned herein are notifications wrongful, illegal and. ultra vird' The crucial prayer in all the suits was "a declaration the Dominion of India has no authority vested in it to assume any specified in power or jurisdiction beyond the matters 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 a:nd consequeritiaf. including the promulgation of agree1I1ent entered 1951 State of Seraikellti and Others v. Union of India and Another. Patanjali &istri ]. S.C.R. SUPREME COURT REPORTS 493 that, 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 ex clusive authority, jurisdiction and powers for and in relation to the governance of the plaintiff to the Govern ment of It India with effect from 1st January, 1948". was claimed particularly from that date and 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 consider ation for its effectiveness and, in any case, was a con cluded agreement supported by consideration. In view notifications and of that agreement, all orders referred to in the plaint proceeded "on the basis Instrument of Accession of the supersession of the said they were legal, by the consent of In a supple valid and operative to bind the plaintiff. mentary written statement the defendants plea that "this Court had no jurisdiction to entertain the subject-matter of the suit the suit having regard to and the provisions contained in article 363 (1) of the Constitution of Indja". the parties" actions, raised to entertain On the 9th December, 1950, by consent of both sides, it was ordered by the Judge in Chambers that preliminary issue, the suit should be heard on namely, "whether having regard to the subject matter of the suit and contained the provisions in article 363 (1) of the Constitution of India, this Court has jurisdiction the matter was taken up for hearing on 5th March, 1951, it was that 'issues should be settled on· considered desirable all matters in the suits, and all the suits, issues should be tried as including the issue of jurisdiction, preliminary issues, and the suits were adjourned the 7th March for that purpose. The parties then seventeen agreed issues as arising out of the, 5-62 S. C. India/59 relating to the maintainability of the suit". When in controversy 1951 State ef Seraikella and Others v. Union of India and Another. Patarefol_i Sastn J. 494 SUPREME COURT REPORTS [1951) pleading;, and they further agreed that issues 1, 3, 4, 5, 6 and 7 might be tried first. These issues are as follows:

#1. Wh~ther having regard to the subject matter of the suit and t_he 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 entertain the suit under section 204 of the Govern ment 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 the plaintiff has a legal capacity and Constitution, entitled to maintain the suit ?

#7. Whether this Court is competent to examine the India validity of section 290-A of the Government of Act, 1935, enacted by the Constituent Assembly ? As I am of opinion that issue No. 1 should be found for the suits must fail on that ground, consider the other issues, although the defendants and I do not propose to arguments have been addressed to us on all of them. The determination of issue No. 1 turns on the proper construction of articles 363 (1) and 374 (2) which read thus: treaty, "363. (1) Notwithstanding anything in tl1is Constitu tion 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 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 or any of its predecessor Governments was a party and which has agreement, covenant, engagement, 1951 State of Seraikella and Others v. Union oflndia and Another. Patanjali. Sastri J. :S.C.R. SUPREME COURT REPORTS 495 such com -0r has been continued in operation respect of any right mencement, or in any dispute in :accruing under or any liability or obligation -0ut of any of the provisions of this Constitution relating to any such treaty,· agreement, covenant, engagement, ~anad or other similar instrument." "374. (2) All suits, appeals and proceedings, civil or ·criminal, pending in the Federal Court at the com mencement of this Constitution shall removed to the Supreme Court, and the Supreme Court shall have jurisdiction to hear and determine the same, and the judgments and orders of the Federal Court delivered -0r made before the commencement of this Constitution shall have force and effect as if they had been delivered or made by the Supreme Court." sheet anchor of into the Government As already pointed out, the Instrument of Accession, which, plaintiffs' case is the full force. according to them, continues to operate in They contend that "the Dominion of India or the Con stituent Assembly of India has no authority or power under the Indian Independence Act or otherwise to enact section 6 of the Constituent Assembly Act I of 1949 or to introduce section 290-A India Act, 1935, or to legislate for the plaintiff State in any manner except with reference to the matters speci fied in the Schedule to the said Instrument of Accession" (paragraph 18 of the plaint in Suit No. 1 of 1950). They proceed to state parties comprise and involve questions on which the extent or ·existence of a legal right depends and disputes, to which the said Acceding State is a party, the extent of authority concern (among other things) Instrument of vested in the Dominion bv virtue of the Accession of the plaintiff ·State." And prayer (b), to which reference has been made already, is for "a decla ration· that the Dominion Government has no authoritv vested in it to assume any power or jurisdiction beyonri Instmment of Accession" the matters specified in reproduced in all (paragraph 21). These passages are the plaints. On the other hand, the mainstay of that "the disputes between 4% SUPREME COURT REPORTS [1951J 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 Instrument of Accession by supcrsession of the said (Vide paragraph 21 of the the consent of parties". written statement of the first defendant which was adopted by the second defendant). And, although the the aforesaid basis. defendants proceeded to state, on that there was no dispute regarding the Instrument of inasmuch as that basis is repudiated in the Accession, piaints, such repudiation obviously raises dispute whether the Instruments of Accession are still in force or have been superseded. That dispute "arising'', as it does, "out of" the. in each case falls within the purview of article 363 (1). Instrument of Accession still governs fo establish, on the one hand, It was said that ·the suits involved also certain other disputes not falling within article 363 (1) such as, for relating to the agreement of Dec em b~r, instance, those 1947, and the validity of the Extra Provincial Juris diction 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 regard ing these matters are but contentions whereby the parties seek that the Instrument of Accession their mutual rights and obligations and, on the other, that that Ins trument stands superseded and is no in force. Issues have no doubt been framed in matters but they cannot in my opinion, be considered 131 or arti to be disputes for the purposes of article jurisdiction cle 363 (1). These articles deal with the claims of courts and they envisage disputed rights. The claims in these stantive suits arc undoubtedly based on Instruments of the respective because repudiated Accession and Instrument of Accession to have been superseded by reason of agreement of alleged lJecember, 1947. These claims are disputes to which article 363 (1) clearly applies. The other s<><alled disputes are only incidental and ancillary controversies longer regard 1951 State ef Straiktlla and Others v. Union of India and Anot'Mr. Palmifali Saslri ... 1. / 1951 State of Seraikel/a and Others v. Union of India and Anothtr. Patanja/i Sostri ]. S.C.R. SUPREME COURT REPORTS 497 in my opinion, affect raised with a view to support or overthrow the claims and cannot, 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 CiYil ·Procedure Code. It is not correct to say Nevertheless, it is contended, the article has no :application here and it cannot operate retrospectively and applies only to disputes arising after the Com I am unable to accept mencement of the Constitution. interpretation of article 363 ( 1). While this restrktcd the Article undoubtedly postulates continued treaties, agreements, etc., entered into operation of or executed before the commencement of the Constitu tion 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 Constitu I sec no ·reason for importing a restriction which tion. the language em a plain grammatical construction of ployed does not warrant. the wider constmction would make the operation of the article retrospective, for the bar to interference by the court operates only after the Constitution force irrespective of having :arisen before or after the commencement of the Con stitution. not be It was said that the article should .to bar the trial of pending suits or construed so as 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 pending, and which had them, was abolish exclusive India, was ed and a new court, the Supreme Court of limited to created with original jurisdiction strictly disputes relating States recognised as such under the Constitution. But as the . States specified in Part B of the First Schedule had a the Constitution, agree semi-sov~reign status before ments with them were in · the nature of international disputes arising out of treaties and covenants, them would not lie in municipal courts. That prin ciples is given effect to, so far as the Supreme Court's jurisdiction to deal with the disputes concerned rights between 1951 StaJe of SeraikeUa and Others v. UnWn of India and Another. Patanjali Sastri J. 498 SUPREME COURT REPORTS [19511 reason applying jurisdiction jurisdicuon is concerned, by the proviso . ~o original and, m article 131 which defines regard to all courts and in respect of all proceedings,. by article 363 (1). The principle is greater, not less, in regard to such disputes arising before the Constitution when these States, then known as Indian States, enjoyed a• higher degree of construction con Furthermore, the political freedom. tended for by the plaintiffs as applied to article 131 that the Court would, notwithstanding would mean the proviso, have jurisdiction they arose before the commence disputes, ment of the Constitution. If that had been intended, one would expect that such jurisdiction would have heen conferred by positive enactment, instead of being left to be derived by from a .proviso intended to delimit the jurisdiction conferred by that article. article 131 must be construed as applicable to disputes of the kind mentioned arising both before and after If so, the commencement article 363 ( 1) must receive the same construction, language employed heing essentially the same. It seems to me, therefore, that the proviso the Constitution. respect . of implication provided Even so, it is next contended, article 363, which enacts a general rule of non-interference by courts certain classes of disputes, cannot control the operation of article 374 (2), which is a special provision pro viding that suits, appeals and proceedings pending the Federal Court at the commencement of the Con · Court stitution shall stand removed to the Supreme and that the Supreme Court shall have jurisdiction to the same. There would he con hear and determine siderable 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 the operation of article 374 (2) and excludes the rule of construction invoked by the plaintiffs. in article controls 363 I ·find issue No. 1 for the defendants~ 1951 State of Seraikella and Others v. Union of India and Another. Mahajan]. S.C.R. SUPREME COURT REPORTS 499 MAHAJAN J.-On before the inauguration of the Constitution of the State of Serailtella (an Orissa State the Eastern States Agency) brought Federal Court of India against the Dominion of and the Province ot Bihar for the following reliefs : the 16th January, 1950, ten days India, India attached .a suit in "(a) Interpretation of the Government of Independence Act, 1947, and (Governors' Provinces) Order, 1949; India Act, 1935, the relevant provisions Indian of. the States Merger specified no authority ( c) Declaration that the Extra Provincial the Dominion Government (b) Declaration that has no authority vested in it to assume any power or jurisdiction beyond .the the matters Instrument of Accession and had delegate any power or powers in relatioh to the plaintiff State on the Provincial Government of Bihar or Orissa ; Juris diction Act, XL VII of 1947, the Constituent Assembly Act, I of 1949, section 290-A of the Government of (Governors' India Act, 1935, and the States Merger vires, illegal and Provinces) Order, 1949, are ultra inoperative in so far as the· plaintiff State and purported to .be made and/or all actions taken or pur ported to be taken thereunder are inoperative ; they are made applicable that all orders made illegal ( d) Declaration that the Province of Bihar has no authority or jurisdiction to carry on the administra tion 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 the defendant Dominion of India over and in respect of the plaintiff States ; the extent of authority of (f) Declaration that the plaintiff State retains its entity arid 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 territorial 1951 State of Seraiktlla and Others v. Union of India and Another, Mahajan]. 500 SUPREME COURT REPORTS [1951] annexure "C" and his private properties as set out in aµnexure "D" remain ·unaffected ; (g) Declaration that the Province of Bihar has no the plaintiff State and the said jurisdiction over authority or that it should not interfere in any way with State or the sovereignty '?f its Ruler." All the different reliefs set out .above in substance converge on the reliefs stated in clause ( f). The plaintiff wants a declaration from this court to the effect that the State of Seraikella retains its entity ;rnd territorial integrity and has not integrated territories of the Indian Dominion. · itself with This suit was pending in the Federal Court on the 26th January, provisions of article 374 (2) of the Constitution it has to be heard this Court. The plaintiff claims and determined by the above reliefs on the following allegations : 1950, and under acceded its Ruler to the Dominion of (1) That on the 16th August, 1947, the plaintiff India under State Instnunent of Accession (Exhibit A) the terms of an executed by instru Governor-General of ment could not be added to or amended unless suc 1 1 addition or amendment was accepted by the Ruler by a supplementary Instrument was ever executed or accept ed by the Ruler ; accepted supplementary Instrument ; that no India, illegally purported (2) That from 31st August, 1947, the Government of Orissa wrongfully administer the plaintiff State by virtue of an alleged delegation of authority by the Dominion Government 1947, issued by a notification dated 23rd December, under an Act called the Extra Provincial Jurisdiction Act, XL VII of 1947, that the said Act is ultra vires and of no effect and does not bind tne plaintiff and that the Act was not authorised by the T nstrument of Accession; (3) That the defendant claims to rely for the valid ity of its wrongful acts on an agreement of 15th December, 1947, but the same is void and \llleged S.C.R. SUPREME COURT REPORTS 501 .inoperative and -contract between the parties ; it never became a concluded (4) That on the 18th May, 1948, the Province of 13ihar wrongfully and illegally took over the adminis tration of the State and issued an administrative order -under Act XL VII of 1947, that the Dominion of India had no authority beyond the Instrument of Accession to delegate its power to the Province of Bihar :administer the plaintiff State ; 1951 State of Seraikella and Otht.rs v. Union of India and Another. Mahajan]. illegal, 1949, was inoperative (5) That on the 26th July, 1949, the Governor General wrongfully and illegally promulgated an order. <:ailed the States Merger Order of 1949, unqer 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 the Dominion of India had no authority to bring the plaintiff State within the provisions of section 290-A <>f the Government of India Act, that the Constituent Assembly Act, I of as it was the consent of the Governor-General enacted without that the Merger Order prejudicially affects the exist ence and entity of the State, its position and status the ambit of section 290-A. Shorn :and goes beyond 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 tories of the Indian Dominion and on the basis of which Act XL VII of 1947 was made applicable to it, · and the notifications mentioned issued. On the basis of the 290-A of the Government of India Act was also made · applicable to the plaintiff State. By reason of the denial <>f the agreement of the 15th December it is asserted the Dominion by the plaintiff that the Government in first merging the plaintiff State with the Province of Orissa and subsequently meming it with the Stat.'! of · Bihar is unlawful and ille; al ; in the absence other words; the plaintiff alleges that in of any supplementary agreement as contemplate.cl by the plaint were section same agreement actions 1951 State of SeraikeUa and Otlv.rs v. Union of India and Another. Mahajan]. 502 SUPREME COURT REPORTS [1951) in depriving the State of its section 6, sub-section (3), of the Government of India Act, 1935, the Dominion of India had no authority whatsoeyer to bring the plaintiff State within the the different statutes mentioned above and ambit of that all its entity are acts in excess of the terms of the Instm ment of Accession and amount to usurpation of the· sovereignty of the plaintiff State which was retained· by it under the· plaintiff is entitled to a declaration from this Court to· the effect that the plaintiff State still retains its entity and · that the various orders and territorial integrated with the and laws under which it has been State of Bihar are void and ultra vires and are acts of encroachment on the sovereignty of the State• Shortly specifically stated, Instrument of Accession by· enforce the terms of the denying the existence of the agreement of. 15th Decem ber, 1947, or by pleading its invalidity. Instrument and that being so, the plaintiff seeks by this suit integrity 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 36J ( 1) of the Constitution of India, this Hon'ble Court has jurisdiction to entertain the suit ?

#2. Whether the plaintiff acceding State· and a distinct of the institution of the suit ? had ceased to be an legal entity at the date·

#3. \Vhether the Federal Court had jurisdiction to entertain the suit under section 204 of the Government· of India Act, 1935, and particularly in regard to thc the agree questions as to the existence and validity of ment of merger ? 1951 State of Seraikella and OtMrs v. Union of lrul/o: and Another. Mahajan S.C.R. SUPREME COURT REPORTS 503

#4. Whether this Court has jurisdiction to entertain the suit?

#5. Whether the suit is maintainable the absence of the requisite notice to the under section 80 of the Civil Procedure Code ? in view of defendants

#6. Whether having regard to the provisions of the Constit1ftion, the plaintiff has a legal capacity and · is entitled to maintain the sµit ? 7. Whether this Court is to examine 290-A of the Government of the validity of section India Act, 1935, enacted by the Constituent Assembly ? (Governor's Pro vinces) Order dated the 27th July, 1948, made by Governor-General under section 290-A of the Govern ment of India Act, 1935, is valid and competent ? ·

#8. Whether the States Merger competent

#9. Whether the Ex:tra Provincial Jurisdiction Act, 1947, was ultra vires and invalid ? 10. Whether the delegation Government of India to the Government of Orissa was ultra vires and illegal ? · of authority

#11. Whether the Constituent Assembly was com petent to enact the Constituent Assembly Act I of 1949 under the provisions of the Indian Independence Act ?

#12. Whether the Seraikella and Kharsawan States (Amendment Act) Order, 1948, is ultra vires and goes beyond the ambit of the Extra Provincial Jurisdiction Acr. 1947?

#13. Whether the plaint discloses action ? any cause

#14. Whether the agreement dated 15th December, 1947, is a concluded agreement between the parties ?

#15. Whether the agreement dated 15th December, inoperative for want of considera 1947, is void and tion ?

#16. Whether the agreement dated 15th December, 1947, is a political agreement and not a civil contract ? the plaintiff the administration was handed over to the Government of Bihar under

#17. Whether 1951 State of Seraikella and Others v • .Vnion of India and Anoth~. Mahaja11]. 504 SUPREME COURT REPORTS [1951] Notification No. 217-P dated 18th May, 1948, m con sultation with the Ruler of the plaintiff State ? With the consent of parties it was decided to hear arguments on issues I, 3, 5, 6 and 7 as they could be decided without taking any evidence. Issue I : As regards this issue, it was contended by has no the learned Attorney-General that this Court jurisdiction "to determine any dispute arising out of any provisio11 of a treaty, agreement, covenant, engage instrument which was ment, sanad or other similar commencement of entered into or executed before the this Constitution by any Ruler of an Indian State and to which .the Government of the Dominion of India .. . . was a party and· \vhich· has or has been continued in operation after such commencement .... ," and that the this nature and present suit relates though the suit is removed to the records oi the Court from ~he Federal Court, this Court must decline to hear it. Article 363 on the basis of which this contcro tion is raised provides thus : a dispute of the provisions of "Notwithstanding anything in this Constitution but article 143, neither the subject to Supreme Court nor any other court shall have juris diction in any dispute arising out of any provision of a treaty, agreement ...... which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which the Govem; nent of the Dominion of India ot anv of its predecessor Governments was a party and whi~h has or has been continued in ·operation such com mencement ... . " removed from adjudicate on them nqtwithstancling The learned Attorney-General pointed out that particular subjects were jurisd.ic tion of this Court and it had no power or authority any other provision in the Constitution the contrary. The the plaintiff learned counsel that article 363 of the Consti contention and urged could not affect tution had no retrospective effect and the Federal Court and suits that were pending · in tontroverted 1951 Stale of Seraik•lla and Others v. Union of India and Another. Mahqjan J. S.C.R. SUPREME COURT REPORTS 505 (2) · were which uncle( the provisions of article 374 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 aircady .been brought before 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 refer to article 374 (2), which provides as follows :- that date. "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 O>Urt, and the Supreme Court shall have jurisdiction to hear and determine the same .. " The question for decision under this issue concerns true scope of the provisions of articles 363 and 374 (2) of the Constitution. It is easy to frame difficult conundrums 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 jurisdic tion of this Court on certain subjects if suits about them are instituted 1950, or ~fter the 26th January, that date, while disputes concerning them arise after article 374 (2) empowers this Court to hear and determine suits which were pending 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 Feder11l India had jurisdiction by virtue of the provi Court of sions of section 204 of the Government of India Act . , suits between acceding 1935, States and the Government of respect to that jurisdiction was con certain subject matters and conferred on this tinued for the time being and was to· determine India with certain . ' 1951 Siok ef SnaikeUa -end Othtrs v . .(JnWn of India and Another. Mahajan]. 506 SUPREME COURT REPORTS [1951] Court. The original jurisdiction to the Supreme Court is conferred by article 131 in respect of similar suits bur it does not embrace all the subjects that were covered by section 204 of the Government of India Act, 1935. therefore operation and as the learned Atton1ey-General In Keshavan Madhava Menon v. The State of Bom bay ( 1 ) it was held by this Court that the Constitution of India has no retrospective operation. This proposi tion was not disputed by the learned Attorney-General. Article 363 of the Constitution has to be such it cannot given a prospective affect suits pending before the 26th January, 1950. It was contended by though the article has no retrospective operation, yet the language employed in it affects jurisdiction 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 prospectively 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 effect must be given to it by necessary implicatioµ or intend ment. The law leans against giving retrospective effect to statutes. Reference in this connection may be made to the decision of the Court of Exchequer in Moon v. Burden(•). Ther~ the learned Barons of the Exchequer had to consider whether section 18 of the Gaming Act, ~ and 9 Viet., Chapter 109, was retrospective. The words of that section Were as follows :- retrospective retrospective "And be it enacted, that all contracts or agreements, in writing by way o~ gaming or, whether by oral or (r) [1951] S. C.R. 228. (2) [1884] 2 Ex. 22. S.C.R. SUPREME COURT REPORTS 507 wagering, shall be null and void ; and that no suit sh~ll in any court of law or equity he brought or maintained for recovering any sum of money or valuable thing .alleged to be won upon any wager, or which shall have been deposited in Mie hands of any person to decide the event on which ~ny wager shall have' been made." 1951 State of Seraiktlla and Others v. Union of India and Another. Mll/i4ian ]. In Beadling v. Coll( 1 Although the section provided that no suit should be brought or maintained in any court for the recovery of any such sum, nevertheless the Court of Exchequer held that that section did not apply to suits which had been instituted though not decided before . the Act It was observed by Baron Parke that came into force. the enactment "that all contracts or agreements, 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, brought, maintained. ), the Court of Appeal in England held that the Gaming Act, 1922, which provided that no action under section 2 of Gaming Act, 1855, to paid in recover back money respect of gaming debts "shall be entertained in any court", did not apply to actions which had been com menced before the Gaming Act of 1922 came into force. ), McCardie J., went further In Henshall v. Porter ( 2 and held that the Gaming Act, 1922, which prohibited . all courts from entertaining such suits, did not apply cause of action had arisen before to cases Where the 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( 8 ) and the learned Attorney-General frankly conceded that the rule laid down therein was not con this rule of construction tested. (3) [1940] F. C.R. 110. It seems (1) P922]39 T. L. R. 128. (~) [1923] 2 K. B. 193. to me that or, 1951 ;)'fate of Seraiktlla and Others v. Union of India and Another. Mahajan]. 508 SUPREME COURT REPORTS [1951] has apposite application to the construction of article 363 of the Constitution and the article has no retros that would pective operation and only affects disputes arise after the 26th January, 1950. As pointed out in Willis in his Constitutional Law, the same principle~ govern the con the construction of constitutions and struction 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 In the majority judgment is an integral part of itself. of this Court in Keshavan Madhava Menon v. The State of Bombay(') it was observed that the idea of the pre servation of past liabilities and inchoate rights pending ·proceedings to enforce the same is not foreign or abhorrent 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) par tially nugatory suits pending in the Federal Court under section 204 of the Govern ment of India Act, though removed to this Court with that they have to be determined by us, a direction could not be heard by this Court. Such a result avoided if article 363 is construed as suggested by me. the Constitution of inasmuch as certain India the learned The contention raised by the plaintiff that this suit does not agreement as it questions its very existence seem sound because the dispute in arises out of the provisions of Accession. counsel for arise out of any this case clearly Instrument of The next contention raised that the suit in so far as statutes by . inter it questions the validity of certain preting the provisions of the Government of India Act and the Independence Act has force as these subjects fall outside the scope of article 363. The question of jurisdiction has to. be determined on the allegations cannot be decided by con made in the plaint and the validity of the sidering the written statement and grounds alleged in the plaint. (1) [1951] S. C.R. 228. 1951 State 'ef Seraiketla 'and Others v. Union of India and Another._ Mahqjan J S.C.R. SUPREME COURT REPORTS 500 For the reasons given above I respectfully beg to differ from the view of the majority of the Court on l should be decided in this issue and hold that issue favour of the plaintiff. Issue 3: Section 204 of Act provides as follows :- · the Government ·of India this Act, jurisdiction in "(l) Subject to the provisions of Federal Court shall, to the exclusion of any other court, have an original any disp?te between any two or more of parties, that is to say, the Dominion, any of the Provinces or any of the Acceding States, if and in so far as the dis pute 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 the foliowing to- (a) a dispute to which a State is a party, unless the dispute- (i) concerns the interpretation of this Act or of an 'before the date of Order in Council made thereunder the establishment of the Dominion, or of an order made thereunder on or after that date, or the interpre tation of the Independence Act, 1947, or of any thereunder, or the extent of the legislative order made or .executive authority vested in the Dominion by vir tue of Instrument of Accession of that State ; or .... ''. Indian It was contended by laid down in clause (a) cited Under this section the Federal Court was· conferred exclusive jurisdiction on disputes between the Domi nion, any of the Provinces or the Acceding States, provided that in the case of the Acceding· States the conditions above were fulfilled. the learned Attomey General that the basic relief claimed in the plaint is that in that the Instrument of Accession subsists and Instru substance the suit is to enforce the terms of the ment of Accession on the allegation these have been contravened, but that the fact is that the Instru ment of Accession was superseded by the agreement of subsisting, the 15th December, 1949, and is no longer M5SCI 6-62 S. C. India/59 1951 Stale of &raiklUa and Otklr} v. Unioa qf India and Anotlrlr. Malrqjon J. 510 SUPREME COURT REPOR'.fS [1951] and that beillg 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 natw;'e of politi~al acts (acts of State) and that the municipal jurisdiction to give relief concern courts could have no ing them. those suits in which the execution of the supplementary agreement of the contro the 15th December, 1949, was not derlied versy raised in the plaint would be within the ambit of the section. In reply to these contentions the follow ing submissions were made on behalf of the plaintiffs in this and in the connected suits : It was not disputed that in ( 1) That the subject matter of the suit concerned the construction of sections 6 and 101 of the Govern ment of India Act, 1935, and the point to be decided was whether on the correct construction of these sec tions the Dominion of India was competent to pass the Extra Territorial Jurisdiction Act, XL VII of 1947, so as to affect the plaintiff's rights, and could promulgate the various orders concerning the merger of the plaint iff State; (2) That on the allegations in the plaint, that on a true construction of the provisions of stction 6( 3) of. the Government of India Act, 1935, the alleged or admitted supplementary instrUlllent did not fall within iis purview was a matter within section 204 of: that Act ; (3) That it having been alleged in the plaint tha~ the merger order in pursuance of. which pbintiff Stare was merged with the Province of Bihar was not within section 290-A, brought the suit within the ambit of the provisions of section 204 inasmuch as it was a the interpretation of section roA question concerning . of that Act ; (4) That on the allegations in the plaint Indian a proper construction of: the section 290-A was not a valid piece. of legislation suit came again within the ambit of the section ; (5) That the defendant not having raised the ple:i of act of: State ·to defend its various ~Ctions taken qua that on Independence Act, 1951 Stall of Seraiiulla and Othm v. Union of India and Anot/ter. Mahajan J. S:C.R. SUPREME COURT REPORTS 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 agree ment of 15th ·December, 1949, it was not open to it to take that plea. · inquiry 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 suit is within the ambit of section 204. It is, however, quite a different matter ·that those allegations may substantiated. Questions not on further the Government regarding the interpretation both of of India Act and of the Indian Independence Act have been canvassed in the plaint and it has also been con tended that on a true construction of the scope of the Instrument of Accession which subsists none 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 (he 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 legisla tion or if the merger order issued under that section void, 'then it cannot be said that the plaintiff State no longer exists and . has been merged in the . .Province of reference Bihar. The learned to article 1 of. the Constitution, which defines the terri tories -of India and also referred to the which .. it has been· noted that the territory of the State of Bihar includes those territories which under provisions of section 290-A have been integrated with it. This statement in the schedule has to be read to the con~ntion raised above. subject It cannot be Instrument of Accession was executed denied that ;m by the plaintiff State in favour of the Dominion of ~ttorney-General made schedule 1951 Stau of &..WU a and Oilurs v. Union of lnt!ia and Another. Mahajan J. 512 SUPREME COURT REPOR'J;'S [1951] supplementary integrity. The this suit alleges that on the India and the plaintiff by true construction of that instrument the plaintiff State plaintiff State denies the retains instrument and also execution of the denies that its merger is valid under its terms. With out determining the correctness of these allegations it is difficult to hold that mere non-recognition of the State in the Constitution wipes out its existence and the case of death of that the situation is analogous to It may be pointed out that under a party in a suit. the terms of the Instrument of 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 plaintiffs 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 controversy it .has to be been integrated determined whether validly with the territories of the Dominion of India or not; these circumstances, plea of abatement It was argu ed th~t 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 Consti tution, when the court is only jurisdiction conferred on it by article 374 (2) of the Constitution and deciding suits filed by Acce<ling States before the Constitution came into force. raised has no validity. in my opinion, the State has exercising In the plea raised Issue 5 : In my judgment, section 80 of the Code of Civil Procedure has no valid ity. 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 Indi~ By section 204 of the India Act, exclusive original jurisdic Government of tion 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 F edcral Court was rules of procedure. The authorised. to make its own that it does not affect Code in section 4 has enacted 1951 State of S.raike11a and Others v. Union of India and 1lnoth1r. Mahajan J. S.C.R. SUPREME COURT REPORTS 513 suits instituted ' language incorporated in India Act,· 1935. any special jurisdiction or special forms of procedure. Rule 5 of the Federal Court Rules framed under Sec tion 214 of the Government of India Act lays down in that none. of .clear and unambiguous provisions of the Code of Civil Procedure shall apply to any proceedings in the Federal Court unless specifi these rules. The provisions of section 80 have not been incorporated in the rules and that being so, section 80 cannot affect in the Federal Court under section. 204 of the Govern It was contended by the ment of learned Attorney-General that the condition precedent for instituting a suit laid down in section 80 was not a qiatter of procedure falling within 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 the Government. instituted against In my judgment, this contention is not sound. Section 214 lays down that the Federal Court may from time the approval of the Governor-General regulating generally the prac make rules of court for tice and procedure of the wurt. "Practice" larger sense like procedure, denotes the mode of pro enforced, ceeding by which and defines distinguished from in Whar right. ton means the mode in which successive steps in litiga It seems to me that what is enacted in tion . are taken. section 80 is the first step in parties when the cause of. action Sec tion 80 in effect provides ·that an · advance copy of the plaint should be served on the defendant and no suit should be 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 rights, i.e., machinery the machinery for obtaining legal [Vide Boyser v. as distinguished · Minors(').] right is that gives defined from its products litigation between a the law in court until is complete. "Procedure" time with instituted (') 50 L. J. F..x. 555. 1951 S1au of Ser.WI/a ... 111111 Othm u.; •• of India nd Anot/rlr, Mahajan J. 514 SUPREME COURT REPORTS [1951] lndia ( 1 ). At page 357 Reference was made by taken in some of the . High Courts the applicability of section 80 to suits learned Attorney the decision in Bhagchand Dagadusa v. General to St:crt:tary of State the view · Lordships of the Privy Council examined that had been India on 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 <;ases where irremediable harm might be caused, if it was strictly applied. It was pointed out that the Procedure Code must be read in accord ance with the natural meaning of its words and section 80 being explicit and mandatory, it admitted of no implications or exceptions. Their · Lordships then made these observations :- "To argue as the appellants did, that the plaintiffs had a right urgently calling for a remedy, while sec tion 80 is mere procedure, is fallacious, for section 80 imposes a statutory and unqualified obligation upon the Court.'' The learned Attorney:.Gcneral relying on section 80 did not lay observations contended down any role of procedure hut was a provision affect I . am unable ~o accede to this ing substantive rights. contention. Their Lordships did not decide, and it 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 sub stantive rights. All that they said was was not mere procedure character and more than this they did not say. that section 80 · but was of a mandatory to me Further, ·it seems that suits between States in respect of their political or public rights and States and which were wholly outside the ambit of the Code of Civil Procedure could not be governed by a rule like this which aptly applies to cases of private persons seeking to enforce private rights against Government. jurisdiction on Parliament while conferring original ( 1) L. R. 54 I. A. 338. S.C.lt • SUPREME COURT REPORTS 515 . the Federal Court of . India concerning these political rights could not be intended, to clog the enforcement rights by · the provisions of section 80 of the of those Code of Civil Procedure. The only conditions precedent for the maintainability of the suit arc those laid. down in section 204 and the hearing of these suits has to be m accordance with the rules of procedure prescribed by the Federal Court of India under the provisions of s¢ction 214 of the Gqvernmcnt of India Act. 19;;1 ·s""' of Seraikell4 and Otlilrs v. Union of India tlllll A.not/aw. Mahajan]. · of section 290-A of the Government of Issue 7 : This issue was not very seriously argued by the learned counsel for · the plaintiff. The validity India Act was disputed on the ground that the assent of the Governor Gencral was not obtained to the addition· of this sec tion in the Act. ·The section was added to the Govern ment of India Act by the Constituent Assembly in its sovereign capacity and was assented to President of the Assembly. The Government of India Act, 1935, was the Constitution Act of· the Dominion of India and the Constituent As5cmbly was authorized 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 In my opinion, there is no Act fully bear this out. raised on behalf of the validity in the plaintiff State that a valid piece of legislation and that 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 sovereign body. section 290-A was not contention by. The result is that these suits, in my opinion, cannot and must be disposed of ·on the preliminary proceed to trial on the other issues. This order will al so be treated as an order in all the other connected suits. issues DAs J.-1 prefer to base my decision on issue No. 6. 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 : Das J. 1951 State of Seraiktlla 6114 Othm '" Onion of India nnd Another. Das]. 516 SUPREME COURT REPORTS [195J] India. the plaintiff State,s entered On different dates hereinafter mentioned caeh .of the plaintiff States ·acceded to the Dominion of India by virtue of Instruments of Accession executed by their the Governor and accepted respective Rulers India. Each of the said States also entered General of the Dominion of India. into standstill agreements with Later on, each of the Governor separate Articles of Agreement with General of Instruments of Accession and stand still agreements entered into by the State of Seraikella (plaintiff m 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. Article& of Agreemenr were exe cuted by the States of Seraikella, D henkanal and Baudh on December 15, 1947, and by the States of Tigiria, · Athgarh, Baramba and N arsinghpur on December 14, 1947. the cases, By the Instruments of Accession, which were in the same terms in all the respective Rulers of the plaintiff States acceded to the Dominion of India with the intent that the Governor-General of India, the Dominion Legislature, the Federal Court and any other administrative authority should, by virtue of the said Instruments but subject to the terms thereof and for the purposes pnly 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 accept ed the matters specified in the Schedule as matters with respect to which the Dominion Legislature: might for · the respective States. The matters make: specified in the Schedule comprised, broadly speaking, 19Sl Sl4t1 •f Slftlikell• And Others v. Uni•n of Indio ""4 .Another. Das]. S.C.R. SUP.REME COURT ~R.TS 517 Affairs External Instrument and Communications. Defence, Article 5 provided that the terms of the Instrument of Accession ·should not be varied by any amendment of Indian In the Government of India Act or of the amendment was dependence Act, 1947, unless such accepted by the supple Ruler by Instrument ·Of Accession. Article 7 mentary provided that nothing 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 India under any such future Constitution. Article 8 preserv ed the continuance of the Ruler's sovereignty in and over his State, and, save as provided by or under Instrument of Accession, the exercise of all powers, authority and rights then enjoyed by him as Ruler of the State. the Governme.nt of in the terms, By the standstill agreements, which were also in administrative agreements similar arrangements as to matters of common concern then Indian State existing between the Crown and continued as between the Dominion of India and the State. jurisdiction By article 1 of the Agreements, the administration of the State respective full and Rulers ceded to the Dominion Government for and exclusive authority, and powers to the governance of the . State and agreed in relation to .the transfer Dominion. Government on the first day of January, 1948, and the Dominion Government, as from the. last mentioned date, became competent to exercise ceded powers, authority manner and through such agency as it might think fit. Article 2 secured to· the respective Rulers theii: respect ive privy purse. the Rulers of amount of the privy purse payable the States of Seraikella, Dhenkanal and Baudh not having been agreed upon at the date of the signing of the Art~cles of Agreements the space meant for . insert ing the amount of privy purse was left blank in the It may here be mentioned jurisdiction :].nd 1951 Sidi< of Stmik<l/a aM Others v. Union "! llltiit1 mid Another. Das]. 518 SUPREME COURT REPORTS [1951} signed by said Rulers. Article J. Agreements preserved the Rulers full ownership, use and enjoy ment of all his private properties as distinct from State saved all personal privileges. properties. Article 4 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 succes sion according to law and custom to the Gaddi _ of the State and to the Ruler's personal rights, privileges, dignities and titles. 'extra-provincial jurisdiction' made it quite (Act XL VII of 1947) received On December 24, 1947, the Extra-Provincial Juris diction Act, 1947 assent of the Governor-General and came into force. The preamble of the Act and the definition, in section 2 that the Central Government could, under this Act, exercise extra-provincial jurisdiction over a · State only if it had by treaty, agreement etc. acquired · full and for and exclusive jurisdiction and powers in relation to the governance of the State. In the case of these seven States the Central Government could exercise extra-provincial jurisdiction over them only on the strength of the Articles of Agtcement of ~mbcr, 1947. tion by reason of the Instrument of Accession. It could not exercise extra-provincial jurisdic ·authority, respect jurisdiction with the Extra-Provincial On December 23, 1947, the Central Government issued a notification purporting to delegate its cxtra to the plaintiff provincial States under Jurisdiction Act, to the · Government of 1947 (No. XL VII of 1947) Orissa which at once began exercise It provincial jurisdiction there could be a delegation is not quite clear ·how jurisdiction before 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· Juris: diction Act, 1947, cancelling the previous notification with respect only to the State of Scraikella ·and · the State of Kharsawan and delegating its jurisdiction or in relation to those two States to the Goverrurient of the seven the Act came States. 1951 StllU •f &nrikeU. Oflll 01Mr$ v. Uniorc qf lrulils _, Anollrer. Das]. S.C..R. SUPRE~ COURT REPORTS 519 jurisdiction Ord~r asslimcd Bihar and on the same date the Government of Bihar the. . Scraikclla and . Kharsawan after promulgating States over them. The other States continued to · be administered by the Government of Orissa. The Constituent Assembly by the Government of India (Amendment) Ac~ 1949 (No. I of 1949) which received the assent of the President of 10, 1)149, amended the Government of India Act, 1935, by, inter alia inserting the following section as section 290-A :- Constituent Assembly on January . "Administration of certain acceding States as a Cliief 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 arc for the time being .exer cisable 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 Com missioner's Province specified in the order : Provided that if any order made under . <:lausc (b) of affects a Governor's shall before making ·of the Government of that Province to make. the order be inserted sub-section Governor-General ascertain the views both with and with respect · to therein". respect to the proposal PrQVincc, the provisions It will be noticed that the Governor-General could act under the new scctiOn only where full and · exclusive authority, jurisdiction and .. powers for and. in relation tO the govcrnan~ of any .Indian State were for the· time J>cing . cxCic:isablc by the P.omioion of India.. It follows that . the Governor..GcQeral could, under this new section, make an. or.der of !llergcr. with respect tbC5C seven States only on the strength of the .Articles 1951 S..Uqf &raikella """ o,,,,,., r, lfltMn of-lttdia -anti .Anot/Nr. DasJ. 520 SUPREME COURT REPORTS [1951] of Agreements of December 1947. He could not make any such order by reason of the Instrument of Acces sion. 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 :- the Schedules "A.s from the appointed day, the States specified in shall be administered in all each of 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 the appointed day shall be construed as not or after including a reference to any of the merged States, and any reference in any such Act or Ordinance as afore said to a Province specified in a Schedule to this Order shall be construed as including the territories of all the States specified in chat Schedule." Schedule III of the Order showed that the State of Seraikella was one of .the two States merged Province of Bihar and Schedule other Orissa States the plaintiffs in Suits Nos. 2 to 7 of 1950 were merged in the Province of Orissa. IV showed including Being aggrieved by enactments, orders and notifications resulting in their merger with Bihar or Orissa the plaintiff States filed the present suits in the Jurisdiction. India in its Original Federal Coun of Suit No. 1 of 1950 was filed on or about January 15, 1950, and the other six suits were fikd 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. l .is the State of Bihar while the second defendant in all the other stiits is. the State of Orissa. The main written statements in all the suits arc 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 adopted S.C.R. SUPREME COURT REPORTS 521 in the written statements of the contentions set forth the first defendant. An additional written statement was filed by the first defendant raising another preli minary issue of law ~hich 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 issue of law raised in the additional written statement be issue. When 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 deter mined first as preliminary issues :- the suits were called on for hearing on tried as a preliminary 1951 State qf Siraik•Ila and Others v. Union of lndU. and Another. Das]. . L Whether having subject-matter regard of thr suit and the provisions contained in article 363(1) the Constitution of India. this Hon'ble Court has jurisdiction to entertain the suit ? to the

#3. Whether the Federal Court had jurisdiction entertain the suit under section ment of India Act, 1935, and particularly in regard the questions as the agreement of merger ? 204 of the Govern and validity of existence

#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 se.ction 80 of the Civil Procedure Code ?

#6. Whether having regard to the provisions of the Constitution the plaintiff has a legal capacity and · entitled to maintain the suit ?

#7. Whether this Court is competent to examine the India validity of section 290-A of the Government of Act, 1935, enacted by the Constituent assembly ? Re-Issue No. 6.-I 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 thereof shall be the States and States and territories 1951 Siok of Snoik#l/o .,,, 011 ... , v. u,.;,,. ef r.m. and .11 .. 1111 •• D.,]. 522 SUPREME COURT·REPORTS [1951] 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 the States shall and indicates what the be comprised of. The third paragraph in Part A pro- vides as follows :- territories of · "The territory of each of the other States in this the territories which immediately Part shall comprise before the commencement of this Constitution were comprised in tl'ic territories which, by virtue of an order made under section 29Q.A of the Government of India Act, 1935, . being administered as if they formed part of that Province." co~rcsponding Province and immediately before such commencement territories of commencement therefore plaintiff of Bihar or Orissa, States of Bihar and Orissa The argument is that as the territories of the plaintiff States, by virtue of the States' Merger (Governors' Pro vinces) Order, 1949, made under section 29Q.A of the India Act, 1935, were immediately Government of before Constitution part of being administered as if they formed territories of Provinces comprise 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 arc no longer recognised as States in Parts A, B or C of the First Schedule to die Constitu tion. they have ceased . to be States so far as our Constitution is concerned and consequently they have no legal existence .as acceding States which thi:s Court ~hich is bound by the Constitution may recognise. These States, in circumstances, cannot come to this Court to enforce their political rights and arc no longer entitled the suits. Learned howeve~, contend that the counsel for the plaintiffs, order made under section 290-A of the Government of India Act, bejng ultra vires and illegal, the territories of the States were never lawfully administered as part of the Provinces of Bihar or Orissa and, therefore, territories of the State of Bihar or Orissa cannot be to maintain In short, 1951 ., Stau.t Straih/la ad Others um.n of 11111ia on4 .f ulhn. Das]. S.C.R. SUPREME COURT REPORTS 523 that the contention of territories of the plaintiff States. said to comprise the It seems to me learned counsel for the plaintiffs is misconceived, for the part of the sentence beginning with the words "which commencement" and ending immediately before with the words "formed part of that Province" but description of the territories which the Constitu tion states are to be comprised in the territories of States of Bihar or Orissa. The validity or otherwise of the order made under section 290-A of the Govern ment of India Ac~ has no relevancy. The question 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 terri tories 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 affifD)ative. This Court is bound by the Consti tution and cannot question the validity of any of provisions. The Constitution says that the territories territories of Bihar and Orissa specified in Part A and this Court must accept position. None of included amongst these States is the States named in Parts A, B and C. Our Constitu tion docs not recognise any of these States . as an acceding State. The Government of India Act which recognised them as acceding States has been repealed. Therefore, the plaintiff States have no existence in eye of the Constitution and cannot come to this Court to enforce their political rights. It is not necessary consider whether in international law there may be a territory or .·. without any subject State without such as many of the States, which during the last war had been overrun by the invaders and which functioned countries, in foreign to be. The problem claimed before us is quite different. The States which are in suits Nos. 4, 5, 6 and 7 ceased to be plaintiffs acceding States by reason of the Merger agreement of December 1947 admittedly concluded by their respec In any event, our Constitution has quite tive Rulers. such by absorbing clearly eliminated these States as shall comprise 1951 The Si.te of SeraikeUa and OtMrs v. Union Qf India and ..fnotf!Lr. DasJ. 524 SUPREME COURT REPORTS [1951] their territories with the States of Bihar or Orissa. As our Constitution does not recognise these States as acced ing States or even as States, this Court cannot recognise these States or their political rights. These cases may have been within the jurisdiction of the Federal Court _when they were instituted, but since then the Govern ment of India Act has been repealed and the new Constitution has come into force. Under the Consti tution, these States do not exist at all. Assuming that these States are still in existence notionally, they have, at any rate, ceased to be States of the kind which could maintain a suit under section 204 of the Government 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 filed under 204. The continue a suit as having abated by regarded must, the plaintiff States as reason of the elimination of an ordinary suit States or acceding States In my judg would abate on the death of a plaintiff. ment, these suits can no longer be continued in this Court. therefore, be just as section In view of my decision on issue No. 6, the other preliminary issues need not be considered. Suits dismissed. the plaintiffs in Suits Nos. 1, 3 & 4 : Agent for 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.