M. Ahmed Ali Khan J.
1. This is an appeal filed by defendant I against the judgment and decree of the Civil Judge, Senior Division Belgaum, dated 31st December 1951 in O. S. No. 47 of 1950 decreeing the plaintiffs' suit which was for declaration that the decisions given by the Revenue Courts in respect of the suit lands were ultra vires, without jurisdiction void and illegal and that the defendants have no right to increase the rent or to seize possession of the suit lands granted hy the ancestors nf defendant 1 to the ancestors of plaintiffs, and also for the recovery of the amount spent over improving the lands, etc., and for mesne profits.
2. The subject matter of this litigation relates to Survey Nos. 162 and 163 situated at Nasalapur in Raibagh Mahal of former Kolhapur State. The old Survey Number of S. Nos. 162 and 163 was 143. The old S. No. 143 belongs to the family of defendant 1. These suit lands are Beshgat Watan Lands. The plaintiffs' case was that the grandfather of defendant 1 granted 12 Bigas in the suit lands to the ancestors of plaintiffs' family hy Miras Patra in 1882 (Exhibit 36). In 1894, the same person granted 18 Bigas out of the same old S. No. 143 to the ancestors of plaintiffs' family by Miras Patra (Exhibit 37).
The family of plaintiffs was to enjoy these Bigas permanently on payment of rent to the defendants' family. In 1906, it was decided by the Kolhapur State that these lands should continue on payment of rent of Rs. 157-12-0 per annum to the family of defendant 1. It is said that in 1920, defendant 1 started proceedings under Section 9 of the Watan Act before the Collector of Kolhapur State for the recovery of possession of the lands on the ground that the alienations made by the Miras Pat-ras. Exhibits 36 and 37, were void under Section 9 of the Watan Act after the death of the grantor, but his application was rejected by the Collector.
Defendant I preferred an appeal to the Revenue Diwan of Kolhapur State who referred the matter to the Council consisting of himself and two other members. The Council tendered its opinion to his Highness the Maharaja of Kolhapur that 18 Bigas granted hy Miras Patra of 1894 (Exhibit 37) should be restored to defendant 1's family as the Miras Patra amounted to an alienation under the Watan Act and that the suit land consisting of 12 Bigas should be continued in the family of plaintiffs on payment of rent which should be ascertained by the Collector.
The opinion of the Council was accepted by the Maharaja who, however, inserted a condition to the effect that in case of non-payment of rent by the plaintiffs' family the suit land should be restored back to the family of defendant I and passed an order accordingly on 30th June 1927 (Exhibit 38). In pursuance to this order the Collector fixed the rent of land at Rs. 210/- per annum and passed an order to the Mamlatdar of Raibagh to recover the rent amount accordingly (Vide Order, Exhibit 40, dated 8-1-1929).
It appears that on 30th November 1936 the defendant I made an application to His Highness the Maharaja of Kolhapur for the restoration of the suit land on the ground of non-payment of rents by plaintiffs' family as directed by the order of 1927 (vide application, Exhibit 120, dated 15-10-1951). On receipt of this application, the Collector submitted his opinion to the Maharaja that, although the plaintiffs' family was in arrears of rent, two months time should he given to pay off the arrears and the land should be restored to the family of defendant I.
The Maharaja of Kolhapur, however, did not accept his opinion and ordered the restoration of the suit land to the family of defendant 1 on the ground that the plaintiffs' family had violated the Older passed in 1927 and they are liable to be evicted (Vide Order Exhibit 39 dated 16-2-1938).
3. It is alleged by the plaintiffs that the impugned orders were without jurisdiction and ultra vires. Defendant 1 inter alia, contended that the orders dated 30th June 1927 and 8th February 1938 were passed by the Maharaja of Kolhapur in his sovereign authority as an executive head of the State and were intra vires and that the Civil Courts have no jurisdiction to question these orders-He further contended that the suit is barred by Section 4 of the Revenue Jurisdiction Act and it is also time barred under Section 14 of the Limitation Act. Defendant 2 who is the protected tenant of the suit land on behalf of defendant 1 supported the defence set up by defendant 1.
4. The contention raised by the defendants did not find favour with the trial Court which decided that the order of 1927 (Exhibit 38) passed by the Maharaja of Kolhapur and the subsequent order of 1938 were ultra vires and void. It further held that inasmuch as the impugned orders were ultra vires and void. Section 4 of the Revenue Jurisdiction Act and Section 14 of the Limitation Act would not apply and consequently the question of limitation does not arise in the case.
5. It is an admitted fact that the appellant is in possession of the suit land since 1938. During the course of the arguments the learned counsel for the respondents conceded that the Maharaja had an absolute sovereign authority in the then State of Kolhapur. It is urged by the learned counsel for the appellant that the orders of the Maharaja of Kolhapur i.e., Exhibits 38 and 39, having been passed in his sovereign authority, amount to executive orders and are ultra vires (sic).
He stressed that the orders having been issued by the Maharaja in the capacity of the Ruler of the State, it was not open to the Civil Court to question their validity. On the other hand, it has been argued on behalf of the Respondents that the impugned orders were passed by the Maharaja of Kolhapur in the Revenue proceedings under the provisions of the Watan Act which was made applicable by him to the State of Kolhapur in 1888.
When an order is clearly referable to an enactment, the legality of the order should be tested with the provisions of that enactment only. It is argued that after the Watan Act was in force in Kolhapur State, the Maharaja's power was exercisable only in pursuance of an authority conferred and regulated by that Act and subject to limitations thereby imposed. Thus no prerogative or sovereign power existed in the matter of the Maharaja making the impugned orders.
On the contrary, his powers were circumscribed by the provisions of the Watan Act. It is contended that, under Section 9, Clauses 1 and 2 of the Watan Act, the Collector can either resume the lands by declaring the alienation void and hand it over to the watandar or he can assess rent on the lands and order the occupant to pay to the watandar. But when the Collector exhausts his powers under Section 9 Clause 2 by once assessing the rent, he is thereafter not authorised to pass order for recovery of possession of the lands.
Thus the condition in the first order of 1927 to the effect that in case of default in payment of rent by the respondents, the land should be restored to the watandar and the second order i.e. of 1938, directing the restoration of the land to the watandar, are repugnant to the provisions of the Watan Act. Reliance is placed on behalf of the respondents mainly on the following cases in Maganchand v. Vital Rao, 14 Bom LR 793; Balakram v. Sitaram : Somashekar Swami v. Bapu Saheb Narayanrao AIR 1948 Bom 176; Kalu Narayan Patil v. Secy. of State, AIR 1928 Bom 534 (1) and 1 Kolhapur LR 30.
6. In view of the arguments advanced, the most important point to he determined is. what was the position of the erstwhile State of Kolhapur atthe time when the Maharaja made the orders contained in Exhibits 38 and 39; that is to say, whether it was sovereign State and the Ruler had unlimited powers to make any order he liked.
It has not been disputed by the learned counsel for the respondents that in the then constitutional set up of the State of Kolhapur, the Maharaja was the absolute sovereign authority. Sovereignty, as is observed by Hebbert in his jurisprudence, being a human institution and the result of historical development, does not admit of an absolute definition. At page 53 of his Book, Hebbert, however, gives the definition of the word 'Sovereign' as follows:
'The term 'sovereign' means a political superior who is not subjected to any other political superior.'
Professor Holland makes the following observations at page 50 of his book 'The Elements of Jurisprudence'':--
'The sovereignty of the ruling part has two aspects. It is 'external' as independent of all control from without 'internal' as paramount over all action within.'
Jurists are now agreed that a State by ceding, certain powers with regard to the external affairs to another State does not cease to be a sovereign if its powers with regard to internal matters remain unrestricted. This principle has been recognised by the House of Lords in Duff Development Coy. Ltd. v. Government of Kaleutan, 1924 AC 797. Thus, there can be no doubt that so far as the internal administration was concerned, the then State ol Kolhapur was a sovereign State.
The point to be determined is whether the impugned orders made by the Ruler of the then Kolhapur State could bo questioned by a court of law. It is not disputed chat the Maharaja of Kolhapur was the sovereign authority in the State before its merger in the Indian Union. He was the undisputed head of the State and his powers and authority were unrestricted. In the case of Arneerunnisa Begum v, Mahboob Begum : AIR1955SC352 , their Lordships of the Supreme Court observed at page 359 as follows:
'It cannot be disputed that prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution, the Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme legislature, the supreme judiciary and the supreme head of the executive and there were no constitutional limitations upon his authority to act in any of these capacities. The 'Firmans' were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law; nay, they would override all other laws which were in conflict with them. So long as a particular 'Firman' held the field, that alone would govern or regulate the rights of the parties concerned though it could be annulled or modified by a later 'Firman' at any time that the Nizam willed.'
Jn the above quoted case, by a 'Firman' dated 19-2-39, the Nizam had constituted a Special Commission to investigate and submit a report to him in a case of succession to a deceased noble man of 'Paigah' Nawab Walud Dowlah by transferring it to the commission from the file of Darul Quaza court which was the competent Civil Court to decide the dispute.
After the report was submitted by the Commission, a firman dated 26-6-1947 declared it to be worthy of implementation and directed it to be implemented. Another firman dated 7-6-1948 was issued by the Nizam directing that the Chief justice of the Hyderabad High Court should take steps to execute the decree envisaged in the decision of the Special Commission.
The report was accordingly transmitted to the Chief Justice of the Hyderabad High Court for execution with a direction that a report for the distribution of 'Matrooka' property should be submitted for the Nizam's sanction before carrying it into effect. After the Police Action in Hyderabad, the previous order was withdrawn by a finance dated 24-2-1949 and the decision of the Special Commission was set aside in respect of certain claimants.
This firman was again revoked by a fresh firman dated 7-9-49 and the case was referred to Sir George Spence, tile then Legal Advisor to the Military Governor for opinion and report. In the meanwhile, the Constitution of India came in on 26-1-1950 and the powers of Nizam to issue prerogative firmans disappeared. It was contended inter alia on behalf of the appellant that the findings of the Special Commission were in the nature ot recommendation, that there was no finality, that the Special Commission was not empowered to frame any decree nor its report could be called a decree capable of execution.
Their Lordships of the Supreme Court, however, held that though the report of the Special Commission could not 'per se' operate as a decree, it had that force after the sanction of the Nizam which was given to it by the 'Firman' dated 26-6-1947. The result was that a decree capable of execution was brought into existence by the 'Firman' of 26-6-1947.
7. The principle laid down in the case of : AIR1955SC352 finds further recognition with a specific reference to that case in a later decision of the Supreme Court reported in Director of Endowment Govt. of Hyderabad v. Akramali : AIR1956SC60 . In that case, the respondent had filed a petition under Art. 226 of the Constitution in the High Court of Hyderabad for Mandamus against the Director of Endowment of Hyderabad Government. He prayed that the Director be ordered to hand over the management and possession of a certain Durgah and also adjoining hereditary lands together with income and profits.
His case was that his ancestors had been the hereditary 'Sajjadas' and 'Mutavallis' of the Durgah for generations. In the year 1914, when the respondents' brother was in possession, the Ecclesiastical department entrusted the supervision of the Durgah to one Akramali. The matter being sent to the Nizam by the Ecclesiastical Department, the former issued the following firman:--
'Pending enquiry, the said 'Mash' need not be handed over to any one. Let it remain in the supervision of the Government. I should be informed of whatever result the enquiry establishes so that proper order may be passed.'
Against this firman and the order of the Ecclesiastical Department passed in pursuance to the firman, the petitioner had filed a Writ Petition. The High Court allowed the petition but on an appeal by the State of Hyderabad, the Supreme Court allowing the appeal held that the Nizam was an absolute sovereign regarding all domestic matters at the time when the firman was issued, his word was law and his will as expressed in the firman was the law of the land, and that the effect of the finance was to deprive Akramali and all other claimants of all rights to possession pending enquiry of the case. The following observations were mane by their Lordships of the Supreme Court at page 62:
'Now the Nizam was an absolute Sovereign regarding all domestic matters at that time and his word was law. It does not matter whether this be called legislation or an executive act or a judicial determination because there is in fact no clear cut dividing line between the various functions of anabsolute Ruler whoso will is law, whatever he proclaimed through his finnans, had the combined effect of law and decree of a court.'
We have carefully considered the authorities relied upon by the respondents. The cases cited by the learned counsel for the respondents are distinguishable from the present case inasmuch as the orders which were under consideration in those cases were not purported to have been made by a sovereign authority. In the case of 14 Bom LR 793, the order which was challenged and held to be ultra vires and void by the Bombay High Court, was the order of a Collector.
The facts of that case were that the grand-father of defendant 1 had granted a Miras Patra and executed a mortgage deed in respect of certain Deshmukhi Watan lands to the plaintiff in 1877. The grantor died in 1892. The plaintiff remained in possession for about 101/2 years thereafter. In 1905, the son of the grantor applied to the Assistant Collector to recover possession of the lands on the ground that the lands being Deshmukhi Watan lands, could not be validly alienated beyond the grantor's life time.
The Assistant Collector declared the alienation null and void under Section 11 of the Watan Act of 1874 and ordered the lands to be restored to the applicant (son of the grantor). The Collector confirmed the order in appeal. In 1906, the plaintiff brought a suit to restrain the defendant 1 (son of the Grantor) by perpetual injunction from recovering possession of the lands alleging that his title has become perfect by adverse possession.
It was contended by defendant 1 that the suit was not maintainable by virtue of provisions of Section 4 of the Revenue Jurisdiction Act. It was held by the Bombay High Court that under Section 9 Clauses 1 and 2 of the Watan Act, the Collector can either summarily resume possession of the lands to which his declaration relates or assess the rent as prescribed in Clause 2 of Section 9 of the Watan Act.
He can do one of the two things prescribed in Clauses 1 and 2 of Section 9 of the Act. He had done neither of them but had purported to have authorised the defendant to recover possession from the plaintiff to which ho was not competent. There is nothing in the Act which authorises the Collector to pass such order. Consequently, the order passed by him was held to be ultra vires and void.
8. The other cases relied upon bv the learned counsel for the respondents, viz., 1 Kolhapur LR 13: AIR 1948 Bom 176; AIR 1928 Bom 534 (1) and , are also distinguishable from the present case mainly on the same grounds as stated above.
In all of them the order which was under consideration was held not to have been made by the sovereign authority. Therefore, they are not of much assistance. Moreover, in view of the principle laid down by their Lordships of the Supreme Court in : AIR1955SC352 the cases cited by the learned counsel for the respondents cannot be, in any way, helpful to him.
9. The second part of the argument advanced on behalf of the respondents is that the proceedings which culminated in the order passed by the Maharaja of Kolhapur i.e. Exhibits 38 and 39, were in the nature of revenue proceedings. The impugned orders were purported to be made by the Maharaja under the Watan Act which he had enforced in the then State of Kolhapur.
Thus his powers were circumscribed and limited to the authority conferred by that Act and were subjected to the limitations imposed therein. Therefore, the impugned orders being repugnant to the provisions of Section 9 Clauses 1 and 2, could be questioned by a Civil Court. There can be no doubt that the proceedings that were being taken were revenue proceedings and the impugned orders were passed in that connection.
It should be noted that the Kolhapur Durbar (Maharaja) was in the position of pater familias, or to describe him in other words an overlord. He was the principal executive, also the principal legislature and the principal judicial authority in the State, Thus, he combined all the three powers in him.
He exercised his powers in view of his Royal prerogative. The prerogative thus defined can logically be traced to 'the old system of tribal chieftaincy which gave rise to the executive, legislative and judicial powers of the Crown'. (Ridge's Constitutional Law at page 203.)
10. In : AIR1955SC352 , the Supreme Court has observed that, at the time when the Nizam was not only the supreme legislative authority but was also the fountain of justice, a rigid line of demarcation between the one and the other would, from the nature of things, be not justified. It therefore follows that the unification of powers in one person makes any differentiation between exercise of his several powers impossible.
Thus, it cannot bo said that the Maharaja of Kolhapur was acting within the limits of municipal law i.e., the Watan Act. He was apparently acting as a sovereign. Therefore it is difficult to accept the contention of the respondents that his acts as such were ultra vires of his jurisdiction and could be questioned by a Civil Court.
11. It is further argued by the learned Counsel for the respondents that the orders passed by the Maharaja of Kolhapur cannot be construed as an act of the State because no sovereign can exercise an act of State against its own subject. An act of State operates extra territorially and its legal title is not in Municipal Law but the overriding sovereignty of the State.
It is also argued in this connection that when an act of the State is clearly referable to some Municipal Law, as in the present case, the sanction for the act is not that of sovereign power but that of the particular law and that immunity from having to justify such an act in a Municipal Court cannot be claimed. In support of his arguments, the learned counsel for the respondents has cited the cases reported in Secretary of State v. Hari Bhanji, ILR 5 Mad 273; P. V. Rao v. Khusbaldas S. Advani, AIR 1949 Bom 277 and .
12. It is true that from the cases cited, the Courts in India have declared that, when an act of the State is referable to some Municipal Law, the sanction for the act is not of sovereign power but that of the particular law and consequently immunity from having to justify such an act in a Municipal Court can not be claimed. But those cases cannot be helpful to the respondents.
There can be no doubt that the Maharaja himself, during the period prior to the merger of the State of Kolhapur, was competent to exercise the powers not merely of accepting or rejecting the advice of the Ministers but also of coming to his own independent conclusion. He was then theoretically absolute.
In the case of ILR 5 Mad 273, it has been laid down that the acts of a State of which the Municipal Courts in British India are debarred from taking cognizance are acts done in the exercise of sovereignpower which do not profess to be justified by Municipal Law. It was observed in that case that-
'When an act complained of is professedly done under the sanction of Municipal Law and in the exercise of powers conferred by that law, the fact that it is done by the sovereign power and is not an act which could possibly he done by a private individual, does not oust the jurisdiction of the Civil Courts.'
In the case of AIR 1949 Born 277, the Government of Bombay had requisitioned a flat and the order was passed under Section 3 of the Bombay Requisitioning Ordinance V of 1947. It was purported to be issued by the order of the Governor of Bombay and was signed by P. V. Rao as Secretary to the Government of Bombay.
In that case, the Government of Bombay had justified the impugned order under the Bombay Requisitioning Ordinance and it was held that when the Province of Bombay justified its requisition order under the Bombay Requisitioning Ordinance, which is a municipal law, it cannot claim as a sovereign authority to be exempted from a Municipal Court and cannot claim immunity from having to justify its act in a municipal Court.
Again, in , it was held that where an act of the State is clearly referable to some municipal law, the sanction for the act is not that of sovereign power but that of the particular law and consequently immunity for having to justify such an act in a municipal Court cannot be claimed by the State.
13. In the instant case, it is common ground that the State of Kolhapur, prior to its merger, was a sovereign State so far as its internal administration went and its Ruler enjoyed unlimited powers appurtenant to that sovereignty. Therefore, in deciding upon the legality ot the impugned orders, we are to project ourselves to the time when they were made. It cannot be denied that there is a marked difference between an authority whose powers are uncontrolled and the legislatures under a written constitution with powers circumscribed by the various written constitutional provisions.
There is no denying the fact that on the dates the impugned orders were passed, the internal powers of the Maharaja of Kolhapur were uncontrolled by any written limitations. The legal consequences of such an uncontrolled authority as compared with tho legislatures under a written constitution have been given by the Supreme Court in a reference under Article 143 of the Constitution of India which is reported in Article 143, Constitution of India and Delhi Laws Act (1912) Etc., In re, 1951 SCJ 527; (AIR 1951 SC 332). His Lordship, Kania C. T. at page 532 (of SCJ): (at p. 336 of AIR) of the journal has observed :
'Such a legislative body which is supreme has thus certain principal characteristics. It is improper to use the word 'constitutional' in respect of laws passed by such a sovereign body. The question of constitutionality can arise only if there is some touchstone by which the question could be decided. In respect of a sovereign body like the British Parliament there is no touchstone. They are all laws and there is no distinction in the laws passed by the Parliament as constitutional or other laws. Such laws arc changed by the same body with the same ease as any other law. What follows from this is that no court or authority has any right to pronounce that any Act of Parliament is unconstitutional.'
Then his Lordship, Patanjali Sastri J. as he then was, has at page 585 (of SCJ): (at p. 362 of AIR) said:
'It is now a commonplace of constitutional law that a Legislature created by a written Constitution must act within the ambit of its powers as defined by the Constitution and subject to the limitations prescribed thereby, and that every legislative act done contrary to the provisions of the Constitution is void. In England no such problem can arise as there is no constitutional limitation on the powers of Parliament, which, in the eye of the law, is sovereign and supreme.'
So also his Lordship, Mahajan J., at page 603 (of SCJ): (at p. 372 of AIR) opined:
'The Parliament being supreme and its power being unlimited, it did what it thought was right. The doctrine of ultra vires has no roots whatever in a country where the doctrine of supremacy of Parliament holds the field. The sovereignty of Parliament is an idea fundamentally inconsistent with the notions which govern inflexible and rigid constitutions existing in countries which have adopted any scheme of representative government. The Parliament being a legal omnipotent despot, apart from being a Legislature simpliciter, it can in exercise of its sovereign power delegate its legislative functions or even create new bodies conferring on them power to make laws. The power of delegation is not necessarily implicit in its power to make laws but it may well be implicit in its omnipotence as an absolute sovereign. Whether it exercises its power of delegation of legislative power in its capacity as a mere Legislature or in its capacity as an omnipotent despot, it is not possible to test it on the touchstone of judicial precedent or judicial scrutiny as Courts of Justice in England cannot inquire into it.'
His Lordship, Mukherjea, J., at page 646 (of SCJ): (at p. 396 of AIR) has also said:
'But the validity or invalidity of a delegation of legislative power by the British Parliament is not and cannot be a constitutional question at all in the United Kingdom, for the Parliament being the omnipotent sovereign is legally competent to do anything It likes and no objection to the constitutionality of its acts can be raised in a court of law.'
14. We have given the aforesaid quotations to show that wherever the legislative authority is absolute, and in the quotation it happened to be the British Parliament, the laws enacted by such authority are accepted by courts of law as valid on the ground that there are no legal limitations to serve as a touchstone for ascertaining its constitutionality.
It therefore follows that the Maharaja of Kolhapur, on the dates he passed the impugned orders, was an uncontrolled authority. None of the provisions of the said orders, on the dates they were passed, could be challenged on the ground that they were ultra vires as they violated the provisions of the Watan Act.
The Civil Courts were precluded from entering upon the question and giving a decision on the validity or otherwise of the orders passed by him as an executive head of the State. Therefore, the rulings cited by the learned counsel for the respondents cannot be held applicable to the present case.
15. The objection relating to limitation under Section 14 of the Limitation Act has not been pressed before us by the learned counsel for the appellant. It has been decided that the impugned orders were passed by the Maharaja of Kolhapur in his sovereign authority as the executive head of the State. Thus, the provisions of Section 4 of the Revenue Jurisdiction Act cannot be held applicable to the present case.
16. In the result, we allow this appeal and set aside the order of the lower Court. Trie plaintiffs' case is dismissed. Taking all the circumstances of the case into consideration, we give no order as to costs.
S.S. Malimath J.
17. I think it is necessary to consider the case from the point of view put forth by the learned Advocate for the appellant. His contention is that the orders in question which are presumably passed under Section 9 of the Bombay Hereditary Offices Act 1874 (commonly known as the Walan Act), are made without jurisdiction and are, therefore, void.
On this point, he urges that the orders passed without jurisdiction can be ignored as though they were non-existent; such an order need not be specifically set aside. His further contention on the question of jurisdiction is that a revenue officer can exercise any of the powers conferred on him by a statute only when the conditions mentioned in the statute are satisfied.
The Officer's own conclusion that the conditions are satisfied in any particular case is not final. It will be open for the Civil Court to hold that the conditions are not satisfied. Then the order will be treated as having been passed without jurisdiction and therefore as a nullity.
There is much force in these contentions. Al-though a Civil Court cannot convert itself into a Court of appeal and assume jurisdiction to set aside an order passed by a revenue officer, it has jurisdiction to determine whether an order purporting to be of a particular kind conforms to the requirements of law empowering such an order to be made.
It can also determine whether any such order was passed by a person duly authorised by the statute to make it. Merely because a party to a proceeding presents a particular order as one passed under a particular statute by a particular authority, it cannot be said that the civil Court must accept it as such without determining whether the order is what it purports to be.
It is the inherent right of a Civil Court to determine this question for itself. Although a given statute may create a specific tribunal and give it certain specified powers thus talking away the exercise of those powers by the ordinary Civil Court the Civil Court will still continue to have the power to determine whether the exercise of that power by the tribunal concerned has been within the ambit of that particular statute.
The case of Mallappa v. Tukko : AIR1937Bom307 relied on by the learned Advocate for the appellant lends support to the above views. It is on such reasonings that the trial Court has come to the conclusion that the orders dated 30-6-27 snd 16-2-38 are ultra vires and, therefore, void.
18. The main point urged in this case by the learned Advocate for the appellant is that the orders in question are not those passed by the revenue authorities but by the Ruler of the Kolhapnr State. He contends that the Rules or Maharaja of Kolhapur State who has passed both the orders in question was a sovereign authority and that a Civil Court has no jurisdiction to sit in judgment over it.
As already observed by my learned brother, there is no dispute between both the sides on the point that the Maharaja of Kolhapur was a sovereign power and exercised sovereign authority within his State. The contention of the learned Advocate for the respondent is that the orders in question were not passed by the Ruler of Kolhapur as a sovereign authority but as one purporting to decide a matter between two parties by applying the provisions of the Watan Act.
It is admitted that the Bombay Watan Act above referred to was made applicable to the Kolhapur State in 1888. It is urged that when the provisions of a statute are to be applied to a particular case, that application must have to be in conformity with the provisions of that statute. If the requirements laid down in that statute do not exist in a particular case, any order passed on the assumption that they exist would be ultra vires.
According to the learned Advocate for the respondent, it is immaterial whether the order is passed by the revenue officer or by the Ruler himself so long as the order is purported to be one in pursuance of the provisions of the statute. He further urges that under such circumstances, the Municipal Court will have jurisdiction to decide whether the pre-requisites for the passing of that order do exist in a given case.
So long as an order is purported to be passed in the exercise of the powers conferred by a Municipal law, the Municipal Court will be competent to take cognizance in the matter even when the order was passed by a sovereign power. In this connection, he relies on certain decisions. The earliest is the one reported in ILR 5 Mad 273, where it is observed:
'The acts of state of which the Municipal Courts of British India are debarred from taking cognizance, are acts done in the exercise of sovereign powers which do not profess to be justified by municipal law.
Where an act complained of is professedly done under the sanction of municipal law, and in the exercise of powers conferred by that law, the fact that it is done by the sovereign power and is not an act which could possibly be clone by a private individual, does not oust the jurisdiction of the Civil Courts.'
That was a case where a refund of portion of the excise duty paid was claimed in the suit on the ground that by a new enactment which came into force when the salt was still in transit, the incidental duty was reduced. One of the objections raised was that the municipal court had no jurisdiction to entertain the suit.
It is a rule of universal law that a sovereign is not liable to be sued in his own Courts without his consent. That is in fact an acknowledged attribute of sovereignty. In that case, it was held that the East India Company did not have the attributes of sovereignty attached to it. On the assumption by the Crown of the direct Government of British India from the East India Company, the Secretary of State for India could not claim anything more than what the East India Company could have done.
Hence, he could not claim on behalf of the Crown the prerogative of immunity from suit. It was thus held that the Crown had consented to submit its acts in this country to the jurisdiction ot Municipal Courts. On these reasonings, it was held in that case that the Court had jurisdiction to entertain the suit. In the present case, we are not dealing either with the East India Company or with the British Crown as its successor. We are dealing with the Maharaja of Kolhapur who was a sovereign authority in his own State. Hence, the ruling above cited is not applicable to this case.
19. The next case is AIR 1949 Bom 277. In that case, it was observed:
'An act of State is different fundamentally from an act of a sovereign authority. An act of State operates extra-territorially. Its legal title is not any municipal law but the overriding sovereignty of the State. ..... It is difficult to conceive ofan act of State as between a sovereign and his subjects. If Government justifies its act under colour of title and that title arises from a municipal law, that act can never be an act of State. Its legality and validity must be tested by the Municipal law and in Municipal Courts.'
This case also can be distinguished on similar grounds as the above. In fact, in this same case, their Lordships observed:
'As I shall presently point out the position with regard to the East India Co., was the same. The East India Co., could have been sued in all cases except in respect of those which it did not seek to justify on grounds of Municipal Law.'
That is how the Province of Bombay could be sued in a Municipal Court so long as the matter was not an act of State.
20. In the case of Oma Parshad v. Secretary of State, MR 1937 Lah 572, the suit was filed against the Secretary of State for recovery of the property which was lost while in the custody of the police who had recovered it from the accused as a stolen property. On behalf of the Secretary of State, it was contended that inasmuch as the property came into his possession in the exercise of a soverign right, it amounted to an act of State and that no suit lay against him. Their Lordships observed that there was no occasion for the exercise of any absolute power of the sovereign authority since the recovery of the stolen property from the offenders was under the provisions of the Criminal Procedure Code. It was held:
'If the Secretary of State takes the property in suit by an act of Sovereignty, then no suit will lie; but if, on the other hand, he takes it under the colour of legal title, then his act will be within the jurisdiction of the Courts.'
It is clear that the plea of the Secretary of State was that the recovery of the stolen property was an act of State. In that case, it was found that the recovery of stolen property was not such an act. In the present case, the bar of jurisdiction pleaded is not one of an act of State. Hence that case is not applicable.
21. The scope of Sovereign authority wielded by the Ruler of an independent native State came up for consideration before the Supreme Court in the case of : AIR1955SC352 . As already referred to by my learned Brother, the Nizam of Hyderabad State was held to enjoy (prior to the coming into force of the Indian Constitution) uncontrolled Sovereign powers being the Supreme Legislature, the Supreme Judiciary and the supreme head of the executive.
A distinction is sought to be made in the present case by urging that although the Ruler may be a Sovereign authority in each of the above three fields and although be could at any time abrogate or amend an existing law or introduce a new law, he cannot so long as a statute is in force, act contrary to the existing law which he himself had promulgated.
In effect, the contention is that so long as the law is not specifically amended or altered, the law is binding on every one. Every revenue or judicial authority can only interpret the rights of the parties in pursuance of that law. Even if such a question goes up to the Ruler, he has to interpret the existing law by which both parties to the dispute are bound. If he wants to apply a different rule or principle, he has to enact that rule or principle as a law. however unceremoniously it may be, and then apply that particular law as between the parties.
The implication of this contention is that so long as a particular rule of law holds the field, it must be applied whether the authority that applies it is the Ruler himself or any of his subordinates. It is difficult to accept these contentions in view or the observations of the Supremo Court already quoted in extenso by my learned Brother. According to their Lordships of the Supreme Court, it appears that whatever the Sovereign authority did was legal. In the said case, it lias been observed:
'The Nizam was not only the supreme legislature, he was the fountain of justice as well. When he constituted a new Court, he could, according to ordinary notions, be deemed to have exercised his legislative authority. When again he affirmed or reversed a judicial decision, that may appropriately be described as a judicial act. A rigid line of demarcation, however, between the one and the other would from the very nature of things be not justified or even possible.'
In view of these observations, it appears that even when a Sovereign authority passed an order contrary to the existing law, he should be deemed to have abrogated the old law and introduced a new one by that very act. In this conception of the Sovereign authority, nothing done by a Ruler would be ultra vires, meaning thereby that his order cannot be called in question in any Municipal Court.
This view is confirmed by another judgment of the Supreme Court in : AIR1956SC60 . In that case also, their Lordships have observed that there is no clear cut dividing line between the three functions above referred to of a Sovereign Ruler. According to their Lordships, 'his will is law: whatever he proclaimed through his Firmans had the combined effect of law and decree of a Court.'
22. On this point, there is a decision of the Supreme Court of tho Kolhapur State itself, reported in Mohammed Chand v. Bhalchandra Dattatraya, 4 Kolhapur LR 726. In that case, the Ruler passed a certain order in 1917 on the application of the appellants. According to this order, the appellants obtained possession of the property. Thereafter, the respondent applied for a revision of this order. In the meantime, the Ruler died and his successor assumed the throne.
He, however, passed an order in favour of tho respondent. Thereafter in 1931, the plaintiffs (appellants) instituted a civil suit against the respondent for a declaration and injunction. A preliminary issue was raised whether the suit was barred by reason of the order of tho Senior Ruler referred to above. When the matter came up before tho Supreme Court of Kolhapur, Madgavkar J. observed:
'..... once the Ruler interferes in his executive capacity, then whether such an order purports to be passed under the cover of some law such as in the present instance, the Recruiting Board legislation, or not, that is an act of the Ruler and there is no legislation in this State enabling the civil courts to set aside tho acts of the Ruler..... But none of these could be set aside by the civil courts in this State as they are the acts of the Ruler.'
From this it is clear that the Ruler was a sovereign authority in the Kolhapur State and that the Civil Court had no jurisdiction to question the validity of or to set aside any order passed by the Ruler. The learned Advocate for the respondents, however, tries to distinguish this case on the ground that this suit was instituted in 1931 when Section 9 of tho Civil Procedure Code was not in force in the Kolhapur State.
According to him, Section 9 was introduced in that State on 24-8-44. There is no material on record to show when exactly the section came to bo introduced. But, in the body of the judgment on page 727, there is a mention that the High Court in its original jurisdiction dismissed the plaintiffs' suit on the ground that it was barred under Section 9 of theCivil Procedure Code. This was presumably in 1932. It is, therefore, difficult to accept tho said contention.
23. There is a decision of the Punjab High Court which takes a similar view on the question of the powers of a Sovereign authority and on the question of the maintainability of a civil action to challenge it. It is reported in S. Anup Singh v, Sardarni Harbans Kaur . There it has been held;
'The erstwhile Patiala State was an independent and sovereign State, and its Ruler, so far as internal matters were concerned, exercised powers identical with those exercised by the Parliament in England. So far as internal matters were concerned, his words had the weight and authority of law; and he exercised all tho powers of a sovereign and discharged all his functions as such in matters judicial, executive and administrative. No suit was maintainable in tho Civil Courts to contest the validity of an order passed by His Highness.'
Similar are the conclusions of the Full Bench of the High Court of Pepsu in Gurdawara Sahib Siri Teg Bahadur Gaga v. Piyara Singh, AIR 1953 Pepsu 1 (its equivalent being 8 DLR Pepsu 49). It is observed as follows:
'So far as the internal administration is concerned the Ruler of the Patiala State enjoyed autonomous powers, legislative, executive and judicial. Legality of any order made by him cannot, therefore, be questioned by a Civil Court. Whether the order which takes away the property of one person and gives it to another is immaterial, because the power of the Ruler extends to making all kinds of orders. The Civil Court has therefore no jurisdiction to determine whether it was competent to the Ruler of the erstwhile Patiala State to give the land, alleged to be the private property of one man to another by an executive order.'
In the case of the State of Madhya Bharat v. Behramji Dimgaji & Co. AIR 195S Madh. Pra. 71, also, their Lordships have taken the view that a Ruler of an Indian State was an absolute sovereign regarding all domestic matters and his will as expressed in his order was the law of the land.
24. In view of these considerations, I reach the conclusion that the Civil Court has no jurisdiction In this case and that, therefore, the appeal should be allowed.
25. Appeal allowed.