1. The petitioner, the son, through the second wife, of the late Maharaja, Ruler of Datia (in Bundelkhand) has filed this writ petition challenging (by way of amendment, which was allowed by my order dated 28th April 1969) the refusal of the Central Government to give permission to sue the present Ruler (being son of the late Maharaja by his first wife) on the basis of a will said to have been executed by the late Maharaja in the year 1936 and a codicil dated 23rd June, 1938; copies of the will and codicil have been made Annexures A and B to the petition. The Maharaja died in Bombay on 3rd September, 1965. The petitioner stated that he learnt of the will and codicil from the present Maharaja of Dharangadhra, the same having been deposited with the father of Maharaja of Dhrangadhra. As per the petitioner's request Her Highness the Maharani Sahiba of Dhrangadhra sent the copies of the will and codicil to the petitioner along with a covering letter, dated the 2nd July, 1963.
2. The petitioner had applied for permission, in terms of Section 87B of the Code of Civil Procedure, to the Central Government to sue the present Ruler. The petitioner however, filed a suit on accoutn of the fact that the same was getting time barred and also filed the present writ petiton on the 2nd July, 1966, as the writ petition which was originally filed merely sought a declaration, that Section 87-B of the Code of Civil Procedure was unconstitutional, and a direction that the Central Government may be compelled to grant the permission sought for if the provision was held to be valid. Since, even before the filing of the writ petition, the Central Government had refused permission and the petitioner had not known about it, he filed a petition to amend the writ petition seeking to add averments concerning the refusal of permission to sue the present Ruler.
3. The order of refusal to give permission to the petitioner to sue the present Ruler of Datia, which did not contain any reason, was sought to be supported in the return filed by the Union of India on the groudn that the Government had an absolute power to grant or withhold consent to sue the present Ruler (of a former Indian State) in a Court of law and that the same was not justiciable. Regarding the contention that Section 87-B of the Code of Civil Procedure offends Articles 14, 19(1)(f) and 31 of the Constitution of India, it is seen from the decision of the Supreme Court in Mohanlal Jain v. Sawai Man Singhji, : 1SCR702 that S. 87-B was held not to offend Art. 14 of the Constitution. In a later case reported in Narottam Kishore Deb Verman v. Union of India, : 7SCR55 His Lordship the Chief Justice Gajendragadkar speaking for the Supreme Court referred to Mohan Lal Jain, : 1SCR702 as having correctly repelled the challenge against the said section under Article 14 and did not allow the same contention to be raised once again. The further attack made on the validity of Section 87-B as contravening Art 19(1)(f) of the Constitution was also considered and the constitutionality of Section 87-B was upheld. In view of these decisions, Shri Goyal, learned Counsel for the petitioner, did not seek to urge that Section 87 of the Code of Civil Procedure was invalid as offending Articles 14 and 19(1)(f) of the Constitution. He, however, urged that the said provisions offended Article 31 of the Constitution. Article 31(1) only provides that no person shall be deprived of his property save by authority of law. Section 87-B does not have the effect, plainly, of depriving any person of his property. Hence the reference to Article 31(1) is inappropriate.
4. Even apart from this consideration it is not permissible for the appellant to again attack the constitutionality of Section 87-B before this Court, the same having been upheld, as valid law, by the Supreme Court. According to Article 141 of the Constitution, the law declared by the Supreme Court shall be binding on all courts within the territory of India. The validity of Section 87-B having been upheld by the Supreme Court it is a valid piece of law which is binding on all the courts in the country.
5. The next contention of the petitoner is that the order of the Central Government declining to give permission to the petitioner to sue the present Ruler (of the former Indian State of Datia) has to be struck down as being arbitrary and bad. Section 87-B(1) makes the provisions of Section 85 and of sub-sections (1) to (3) of Section 86 appolicable to the Rulers of any former Indian State. We are not concerned with Section 85 of the Code of Civil Procedure. Sections 86 (1) and (3) are important and may be set out:-
'86(1) - No Ruler of a foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government:
Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid a Ruler from whom he holds or claims to hold the property.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) No Ruler of a foreign State shall be arrested under this Code, and except with the consent of the Central Government certified in writing by a Secretary to that Government, no decree shall be executed against the property of any such Ruler.'
6. According to Section 86(1) read with Section 87-B the present Ruler (of the former Indian State of Datia) could not be sued except with the consent of the Central Government
7. I have exercised considerably on this question because it seems prima facie that the petitioner is not given an opportunity to establish his claim under the will by suing the present Ruler of Datia on account of the Government's refusal or permission to sue the present Ruler of Datia. His Lordships the Chief Justice Gajendragadkar while explaining in Narottam Kishore, : 7SCR55 the object of Section 87-B of the Code of Civil Procedure observed that the Central Government should normally accord consent to the litigants who want to file suits against Rulers of former Indian States whenever it appeared that the claim disclosed justifiable and triable issues between them and that it was not the functions of the Central Government to attempt to adjudicate the merits of the claim intended to be made by the litigants in the proposed suits which was the function of the Civil Courts of competent jurisdiction.
8. In the affidavit filed by Shri M. S. Sadasivan, Deputy Secretary to the Government of India, Minsitry of Home Affairs, reference was made to the covenant of March 1948 for the formation of the United States of Vindhya Pradesh entered into by the Rulers of certain States in Bundelkhand and Baghelkhand. According to Article 11 of the said Covenant the Ruler of each covenanting State was entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the dat eof his making over the administration of that State to the Raj Pramukh. This was emphasised in the Agreement of 26th December, 1949, between the Government of India on the one side and the Rulers of the States forming the United State of Vindhya Pradesh on the other. According to Article 6 of the same agreement the Government of India guaranteed the succession, according to law and custom, to the gaddi of each Covenanting State, and to the personal rights, privileges, dignities and titles of the Rulers thereof. After referring to these and other provisions in the various covenants a plea was taken in the return that under Article 363(1) of the Constitution neither the covenant nor any dispute or obligation arising there from was justiciable. This was further amplified by stating that the decision of the Government of India in withholding the consent was an act of State and hence not justiciable.
9. Sections 86, 87, 87-A and 87-B of the Code of Civil Procedure were placed on the Statue Book by Act 2 of 1951. The object of introducing the said provisions was explained in the following manner (vide page 47 of the Current Indian Statutes 1951)-
'In view of the constitution absorption of the former Indian States in the polity of the country, it has become necessary to recast the fascicle of five sections relating to 'suits by aliens and by or against foreign Rulers and Rulers of Part B States' contained in Part Iv of the Code. Sections 83 to 87 till recently applied to all those Rulers of Indian States who exercised any sovereign powers within their territories, in exactly the same way as they applied to Rulers of independent foreign States. Although their constitutional position is now very different, it is necessary to implement the assurances given to the Rulers of the integrated and merged States that they will continue to be entitled to all the personal privilegs enjoyed by them, whether within or outside the territories of their respective State before the 15th August, 1947. It is accordingly proposed in Clause 12 of the Bill that Sections 83 to 87 of the Code should be replaced by a revised set of provisions applicable to Rulers, ambassadors and Envoys of foreign states and to certain members of their staff who are entitled to these diplomatic privileges and immunities, followed by a special provision on similar lines applicable to Rulers of the former Indian States.'
10. It is seen that there was a similar amendment with reference to former Indian Rulers so far as Code of the Criminal Procedure was concerned which was made by Act 1 of 1951. The Statement of Objects and Reasons for introducing Section 197A in the Code of Criminal Procedure, providing that no Court shall take cognizance of any offence alleged to have been committed by the Rulers of former Indian State except with the previous sanction of the Central Government, has been printed at page 41 of the same Volume. This provision is stated to have been introduced for the reason mentioned below:
'The opportunity has been taken to insert in the Code a provision designed to protect the Rulers of Indian States from vexation criminal proceedings. Before the 15th August, 1947, these Rulers enjoyed, even outside their States, complete immunity from criminal proceedings in any Court on principles of international comity. Covenants and agreement executed by them since that date guarantee to them all the personal privileges which were enjoyed by them immediately before the 15th August, 1947 and this guarantee has been incorporated in Article 362 of the Constitution. It is proposed in clause 11 of the Bill to make a statutory provision in the Code to the effect that no Court shall take cognizance of any offence alleged to hae been committed by a Ruler exept with the previous sanction of the Central Government. While giving the Government of India full discretion to let the law of the land have its course in appropriate cases this provision will enable them to safeguard the Rulers' privileges so far as possible.'
11. It will thus be seen that not only with reference to civil actions but also in the matter of criminal prosecutions the above safeguard was considered necessary to implement the assurances given by the Rules at the time they will among other things be entitled to the personal privileges enjoyed by them.
12. Hidayatullah, J., (as his Lordship then was) while upholding the validity of Section 87B, by repelling the attack made under Article 14, referred to the historical background which rendered the ex-Rulers a class by themselves and observed as follows:
'A law made as a result of these considerations must be treated as based on a proper classification of such Rulers, who had signed the agreement of the character described above. It is based upon a distinction which can be described as real and substantial, and it bears a just relation to the object sought to be attained.'
Dealing with the argument that 'immunities', an expression employed in other Articles of the Constitution, were different from privileges, his Lordship further observed as follows:-
'Immunity from civil action may be described also as a privilege, because the word 'privilege' is sufficiently wide to include an immunity. The Constitution was not limited to the choice of any particular words, so long as the intention was clearly expressed. In our opinion, the words 'personal rights and privileges' are sufficiently comprehensive to embrace an immunity of this character'. Vide Mohan Lal Jain, : 1SCR702 .
13. In view of the above specific observation and the objects and Reasons of the enactment, which can be taken into account for the limited purpose of understanding the historical background and the purpose for which it was made, the consent of the Central Government to suing or prosecuting an Indian ruler seems to be on a par with the Rulers, Ambassadors and Envoys; this is a fair inference from Section 87B being an extension of the same immunity given to the Rulers of any former Indian State that the latter are treated at par with foreign Rulers, Ambassadors and Envoys. To rebut this inference Mr. Goel for the petitioners urged that the decision of the Supreme Court in Narottam Kishore, : 7SCR55 construing the grant of permission to sue the former Indian Ruler only for a portion of the claim put forward against him but disallowing his claim to sue regarding certain other portions upheld the principles of justifiability of refusal to grant permission by the Central Government in such cases. I am afraid that this would not be a correct understanding of the principle behind the said decisin, which was only concerned with pointing out that the Central Government having granted permission to sue the former Indian Ruler in respect of the claim put forward against him went wrong in limiting the said permission to a portion of the claim since it amounted to an adjudication that a portion of the claim against the said former Ruler alone was good, a matter which fell within the jurisdiction of the Court and not of the Central Government. It is appropriate in this context to refer to the significant passage in paragraph 12 of the said judgment to the following effect:-
'In the present proceedings, it does appear prima facie, that the petitioners have a genuine grievance against the Central Government's refusal to accord sanction to them to get a judicial decision on the dispute between them and second respondent. That naturally is a matter for the Central Government to consider'.'
(Emphasis (here in ' ') added).
14. Shri Goel next referred to the decision of Shah J., in Jaswant Singhji Fatehsinghji Thakore v. Kesuba Harisingh Dipsinhji, : AIR1955Bom108 , where the question arose as to whether an application under Section 488 of the Code of Criminal Procedure for maintenance against the former Indian Ruler required the sanction of the Central Government under Section 197A (as amended in 1951) of the Code of Criminal Procedure. It was held that since an application for maintenance under Section 488 of the Code of Criminal Procedure was not a case of charging the respondent in that case with the commission of any offence section 197A did not bar the jurisdiction of the trial Court. That is not the case from what had been conferred by Section 197A, was not raised.
15. It is a civil action which is sought to be brought against the former Indian Ruler and Section 87B of the Code of Civil Procedure (as amended in 1951) does apply to such a situation. The fact that Section 87B does apply to the instant case is no longer in controversy before me once it is held to be intra vires. What is stated is that the refusal of the Central Government to give the requisite consent to sue the former Indian Ruler is justifiable, which is different.
16. Apart from the above aspects, the return has also sought to justify the refusal of the Central Government by reference to Article 363 Clause (1) of the Constitution. The said plea has been couched in the affidavit of Shri Sadasivan as follows:-
'The full ownership, use and enjoyment of his private properties by a Ruler is guaranteed by the Covenant mentioned in paragraph A above which the Ruler of Datia has signed. This Covenant has been concurred in and guaranteed by the Gvoernemnt of India who have approved of the private properties of the Ruler in pursuance of Article Xi thereof, Under the provisions of Article 363(1) of the Constitution of India neither the Covenant, nor any dispute or obligation arising there from, is justiciable.'
17. Article 363(1) of the Constitution reads as follows:-
'Notwithstanding anything in this Constitution but subject to the provisions of Article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which the Government of Dominion of India or any of its predecessor Government was a party and which has or has been continued in operation after such commencement or in any dispute in respect of any right accruing under or any liability or obligation arisng out of any of the provisions of this Constitution relating to any such treaty, agreement, covenant, engagement, sanad or other similar instrument.'
18. Having regard to the fact that the claim put forward against the former Indian Ruler is one arising under the will of late Maharaja comprising his private properties it does not appear correct to say that such a dispute comes within the ambit of Article 363, Clause (1).
19. It was further contended in paragraph 6 of the return as follows:-
'With reference to para 6 of the petition, I say that under Article Vi of the Merger Agreement quoted in Para D above, the Government of India have guranteed personal rights, privileges, etc., to the Ruler of Datia. Article 362 of the Constitution provides that in the exercise of the power of Parliament or of any legislature of any State to make laws or in the exercise of the executive power the Union of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in Clause (1) of Articel 291 as it stood then, with regard to personal rights, privileges and dignities of a Ruler of an Indian State. One of the privileges under the agreements and covenants is that of extra territoriality and exemption from civil jurisdiction except with the sanction of the Central Government and that is how Section 87B came to be enacted. The provisions of Section 87B are only provisions of Article 291 and 362 of the Constitution of India.'
20. This contention has been adverted to in some measure already; it also bears upon the privileges which have been guaranteed to the former Indian Rulers under the Agreements and Covenants. The said privilege is said to be one of extra territoriality and exemptions from civil jurisdiction except with the sanction of the Central Govenment. In the very nature of things the only possible attack on section 87B of the Code of Civil Procedure which gives effect to and guarantees the assurances regarding the above privilege etc., was on the ground that it differentiated between different classes of Indian citizens, the former Indian citizens; but this argument of inequiality having been rejected there can be no further attack upon an order passed by the Central Government refusing to give permission to sue a Ruler of a former Indian State in a court of law.
21. The furether question is whether this is an act of State simplicities or not. An act of State is a wellknown legal term of constitutional law which has been treated by leading text-writers on the subject. The following passage from Wade and Phillips Constitutional Law (Seventh Edition by E. C.S. Wade and A. W. Bardley - Low Priced Textbook pages 263-64) explains the expression 'act of State' in the wide sense:-
'Those acts of the Crown which are done under the prerogative in the sphere of foreign affairs are known as acts of State. Instances of acts of State are the declartion of war, the making of peace and the recognition of foreign Governments. The term, 'act of State', means 'an act of the Executive as a matter of policy performed in the course of its relations with another State, including its relations with the subjects of that State, unless they are temporarily within the allegiance of the Crown. Such an act is not justiciable by the Courts. In Republic of Italy v. Hambros Bank Ltd., 1950 1 All Er 430 the Courts refused to adjudicate on, or to take cognizance of a financial agreement between Italy and the United Kingdom. It give rise neither to contractual rights nor claims in tort. The term 'act of State' has been defined judicially as: 'an exercise of sovereign power' which 'cannot be challenged, controlled or interfered with by municipal courts. Its sanctionis not that of law, but that of sovereign power, and whatever it be, municipal courts must accept it, as it is, without question' (Per Fletcher Moulton, L. J. In Salaman v. Secretary of State for India, (1906) 1 Kb 613 . Such matters as fall properly to be determined by the Crown as acts of State in this sense are not subject to the jurisdiction of the municipal Courts, and rights alleged to be acquired there under, semble even by British subjects, cannot be enforced by such courts Acts resulting from a treaty of cession or by reason of annexation of terriotry fall into the class; such acts may confer a title to property on the Crown which must be accepted by municipal law.
In West Rand Central Gold Mining Co., v. King (1905) 2 Kb 391 , a British corporation failed to establish by petition of right the right to enforce against the Crown a claim for a wrong inflicted upon it by the Government of a State (the former South African Republic) which hadbeen extinguished by acts upon the part of the Crown, namely, conquest and annexation. No interference with the rights of British subjects enforceable in British Courts was thereby involved, and it lay within the discretion of the Crown to determine which, if any, of the liabilities of the extinguished State it was prepared to assume.
In Nabob of the Carnatic v. East India Co., (1792) 2 Ves Jun 56 - there was dismissed a bill in equity founded upon treaties between the Nabob and the Company; the treaties were political and made between a foreign power and subjects of the Crown acting as an independent State under charter and statutory powers; they were thereforee not subject to the jurisdiction of the Courts.'
21A. In the West Rand Central Gold Mining Co., 1905 2 Kb 391 the Court observed as follows:-
'Upon this part of the case there is a series of authorities from 1973 down to the present time holding that matters which fall properly to be determined by the Crown by treaty or as an act of State are not subject to the jurisdiction of the municipal Courts, and that rights supposed to be acquired there under cannot be enforced by such Courts. It is quite unnecessary to refer in detail to them all. They extend from 1792 2 Ves Jun 56 down to Cook v. Spring. As a great deal of argument was addressed to us upon the latter case, we think it right to say that, although it was contended that the actual decision was not in harmony with the views of the American Courts upon analogous matters, no authority was cited, or, as far as we know, exists, which throws any doubt upon that part of the judgment which is in the following words: 'The taking possession by Her Majesty, whether by cession or by any other means by which sovereignty can be acquired, was an act of State and treating Sigcar as an independent Sovereign, which the appellants are compelled to do in deriving title from him. It is a well-established principle of law that the transactions of independent States between each other are governed by other laws than those which municipal Courts administer.' It is no answer to say that by the ordinary principles of international law, private property is respected by the Sovereign which accepts the cession and assumes the duties and legal obligations of the former Sovereign with respect to such private property within the ceded territory. All that can be properly meant by such a proposition is that, according to the well-understood rules of international law, a change of sovereignty by cession ought to affect private property, but no municipal tribunal has authority to enforce such an obligation.'
22. In 1792 2 Ves Jun 56 the Nabob had brought an action against the East India Company praying for an accounting, based upon a contract between the company and the Nabob. Counsel for the Company contended that the transactions covered the period of more than 50 years and that the evidenc was more than 3000 miles away from the city of the trial. The counsel for the Nabob urged that the difficulty of accounting should not prevent the Court from ordering it. The Court declined to exercise its jurisdiction in spite of the fact that the East India Company had often been sued in the English Courts. The ground of the decision was that the transaction ws of such a nature that it involved matters which the Court thought it expedient to treat as beyond the scope of its review. The accounts were of the type that obtained between sovereigns and not between contracting Corproations. The Nabob was a sovereign 3000 miles away from the Tribunal. The contract itself was said to contain a provision which was diplomatic in nature.
23. Whether the above decision has to be understood as a refusal on the part of the Court to exercise jurisdiction on the ground of the question raised being political or not it was undoubtedly based on the nature of the relationship and obligations between two sovereign bodies. Before the merger of the princely States with the Central Government the princely States, on the one side, and the Government of India, on the other, constituted two sovereign bodies. It was in pursuance of the obligations undertaking and the assurances given that Section 87-B of the Code of Civiil Procedure and Section 197-A of the Code of Criminal Procedure were placed on the Statute Book.
24. In the Secy. Of State v. Kamachee Boye Sahaba, (1859) 13 Moo P.C. 2 it was held that the transaction of independent foreign States inter se are acts of States with which a Municipal Court cannot interfere so that the dealings of the Government of India with an Indian Prince could not be made the subject of inquiry in a Municipal Court.
25. This is thereforee, not a suitable area for judicial review in any view of the matter.
26. I am not dealing with the further question which was raised during the arguments that even on the ground that the question raised is a 'political question' and that the courts should, even as a matter of judicial self-limitation, refuse to adjudicate upon the refusal, since such a plea has not been taken in the return.
27. In the result of the petition fails and is dismissed, but in the circumstances without costs.
28. Petition dismissed.