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Maharajkumar Shri Pramodsinhji of Rajpipla Vs. the State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Constitution
CourtGujarat High Court
Decided On
Judge
Reported in(1966)7GLR1
AppellantMaharajkumar Shri Pramodsinhji of Rajpipla
RespondentThe State of Gujarat and anr.
Cases ReferredGandhinagar Motor Transport Society v. State of Bombay
Excerpt:
- - (1) that the grant of cash allowance having been made by the ex-ruler of rajpipla prior to the merger of his state and at a time when he enjoyed full sovereign rights, the grant was a legislative act on his part which could not, subsequent to the merger, be altered from a hereditary to a life-time grant by a mere executive fiat of the government of bombay; amin clearly depend question whether the grant of cash allowance made by the ruler a legislative act on his part and if so, whether a part of that grant that is, the part dealing with cash allowance, could be modified by the state government after the merger of the state to one for life. as regards the first contention, the supreme court held that the maharaja of gwalior being an absolute monarch of an indian state, there was no.....j.m. shelat, c.j.1. on april 29, 1961, sir vijaysinhji chhatrasinhji, the then ruler of rajpipla state, expired leaving him surviving three sons, of whom the present petitioner was the second son. according to the petitioner, the said sir vijaysinhji, in accordance with the custom prevailing in the family of the rulers of rajpipla, passed an order on august 19, 1946, which was to have effect from july 1, 1946, whereunder he granted to the petitioner, for the purpose of providing maintenance to him, three villages, namely, amletha, tropa and ori, yielding an annual revenue of rs. 15, 533, the revenue thereof and in addition thereto, a sum of rs. 20, 467/- as and by way of cash allowance payable every year. in pursuance of that order, the said sir vijaysinhji, as the ruler of the rajpipla.....
Judgment:

J.M. Shelat, C.J.

1. On April 29, 1961, Sir Vijaysinhji Chhatrasinhji, the then ruler of Rajpipla State, expired leaving him surviving three sons, of whom the present petitioner was the second son. According to the petitioner, the said Sir Vijaysinhji, in accordance with the custom prevailing in the family of the rulers of Rajpipla, passed an order on August 19, 1946, which was to have effect from July 1, 1946, whereunder he granted to the petitioner, for the purpose of providing maintenance to him, three villages, namely, Amletha, Tropa and Ori, yielding an annual revenue of Rs. 15, 533, the revenue thereof and in addition thereto, a sum of Rs. 20, 467/- as and by way of cash allowance payable every year. In pursuance of that order, the said Sir Vijaysinhji, as the ruler of the Rajpipla State, issued a Sanad. The Sanad inter alia provided that the petitioner was to be the full owner of the entire revenue of the said three villages irrespective of any increase that might be caused by any fresh revision or settlement which might be introduced thereafter, that the petitioner and his heirs were the sole and absolute owners with hereditary title of the aforesaid three villages and that in accordance with the said order, the petitioner and his heirs after him were to get from the State Treasury every year the aforesaid sum of Rs. 20,467/-. The petitioner thus was granted a Jivai Jagir in the aggregate amount of Rs. 36, 000/- per annum made up as aforesaid of the land revenue derived from the said three villages and the said cash allowance of Rs. 20, 467/- with hereditary title thereto. By an agreement of merger dated March 19, 1948, made between the Dominion of India and the said Sir Vijaysinhji, the State of Rajpipla came to be merged with the State of Bombay on June 10, 1948. By a letter dated October 1, 1948, addressed by the Ministry of States to the said Sir Vijaysinhji, the Dominion of India guaranteed pensions, gratuities and allowances granted by the State of Rajpipla to the members of its public services prior to April 1, 1948, as also the enjoyment of Khangi villages, lands and Jagirs, etc., existing on April 1, 1948.

2. It appears from the judgment of the Revenue Tribunal that certain correspondence thereafter took place between the Government of Bombay and the said ruler. -By his letter dated July 18, 1949, the Chief Secretary' to the Government of Bombay intimated to the ruler as follows:

In continuation of my demi-official letter of even number dated the 8th July, 1949, regarding (your) Highness' inventory of private property, securities, and cash balances I am to say that in the course of discussion on the 26th April 1949 at the Nizam's Guest House, Bombay, certain commitments made by Your Highness such as alienations, allowances granted to relatives, pensions etc., were considered and the following decisions were arrived at.

These decisions were (1) that the lands alienated in favour of the petitioner and also the third son of the ex-ruler were to be treated as their personal property subject to payment of assessment, etc., and (2) that the allowance granted to his various relations including the petitioner were to continue till the life-time of the present beneficiaries. The letter added that this decision of the Government of Bombay had the approval of the Government of India in the Ministry of States. In pursuance of these decisions, the Chief Secretary, by his letter dated August 23, 1949, informed the Collector of Broach that the Government of Bombay was pleased to direct that the allowance of Rs. 20, 467/- granted to the petitioner should be continued during his life-time only and that allowance was to be paid to the petitioner from the date of integration, namely, June 10, 1948. On December 31, 1949, the Chief Secretary wrote another letter to the ruler wherein, referring to the letter of August 23, 1949 written to him by the ruler, the Chief Secretary informed him that as regards the cash allowance of Rs. 20, 467/- in favour of the petitioner, the Government regretted that it could not agree to make that cash allowance hereditary as 'in no case such allowances have been allowed beyond the life-time of the beneficiaries.' The Chief Secretary also wrote 'I am to add that the decision taken at the conference held in the Council Hall, Bombay, on the 26th April, 1949 in this regard is extremely liberal since ordinarily the two Rajkumars (the petitioner and his younger brother) should be supported from Your Highness' privy purse and it is hoped that Your Highness will not press this point. 'The letter again observed that these decisions had the approval of the Government of India in the Ministry of States. This correspondence shows that as far back as April 26, 1949, a decision was taken at a conference between the ex-ruler on the one hand and the Government of Bombay on the other to the effect that the cash allowance of Rs. 20,467/-, which the ex-ruler had granted to the petitioner hereditarily, was reduced to an allowance which was to be paid to the petitioner during his life-time only. It would seem that the ex-ruler felt dissatisfied with this decision and carried on some correspondence with the Government of Bombay which included the above-quoted letter by him dated August 23, 1949. In answer to that letter, the Chief Secretary by his reply dated December 31, 1949 regretted the inability of the Government of Bombay to accede to the request of the ex-ruler to treat the aforesaid cash allowance as a hereditary grant and reiterated in that letter the decision of the Government of Bombay dated April 26, 1949, and hoped that the ruler would not press the point any further. It may be observed that inspite of the communication to the ruler of the decision arrived at as aforesaid on April 26, 1949, but presumably because of the hope expressed by the Chief Secretary in his last letter, the Ruler did not carry on any further correspondence with the Government of Bombay or with any other authority, nor did he agitate against the aforesaid decision of the Government of Bombay. It appears that the petitioner also did not take any steps to challenge or to have that decision set aside by any authority.

3. In 1953, the State Legislature enacted the Bombay Merged Territories and Areas (Jagir Abolition) Act, 1953, being Act XXXIX of 1954 abolishing all Jagirs. Thereupon, the petitioner filed an application before the Collector, Broach, under Sections 13 and 14 of that Act for compensation for the abolition of his Jivai Jagir. In 1955, the State Legislature also enacted the Bombay Merged Territories (Miscellaneous Alienations) Abolition Act, 1955, being Act XXII of 1955, hereinafter referred to as the Miscellaneous Alienations Abolition Act, That Act came into force as from August 1, 1955. On the coming into force of the Miscellaneous Alienations Abolition Act and on the footing that the aforesaid alienation was abolished thereunder, the Government of Bombay ceased to pay the cash allowance to the petitioner. On June 8, 1956, the petitioner filed an application, being application No. 73 of 1955, under Section 17 of the Miscellaneous Alienations Abolition Act before the Deputy Collector, Broach, claiming compensation for a sum of Rs. 1,43,269/-, i.e. seven times the amount of Rs. 20,467/-, upon the footing that the alienation, i.e. the cash allowance, was a hereditary alienation and therefore the petitioner was entitled to compensation under Clause (i) of Section 15(1) of the Act. By his order dated June 4, 1960 the Deputy Collector negatived, the petitioner's claim for Rs. 1,43,259/- and awarded Rs. 61,401/- only as compensation under Clause (iii) of Section 15(1), holding that as the Government of Bombay had already given its decision that the aforesaid allowance was for life only, the provision applicable to the petitioner's claim would be Section 15(1)(iii) and not Section 15(1)(i) and therefore compensation payable to the petitioner would be only three times and not seven times the annual cash allowance of Rs. 20,467/-. The petitioner filed an appeal against that order before the Revenue Tribunal. The Revenue Tribunal, by its order dated September 1, 1961 upheld the order of the Deputy Collector and dismissed the petitioner's appeal. It is the correctness of this order of the Revenue Tribunal which is challenged in this petition.

4. At the very outset, we may make it clear that we are not concerned in this petition with the question of the abolition of the Jagir in respect of the said three villages and the revenue thereof under the Jagir Abolition Act of 1954. In this petition, we are only concerned with the question as to the amount of compensation payable to the petitioner under Miscellaneous Alienations Abolition Act in respect of the abolition thereunder of the alienation, namely, the cash allowance, made by the petitioner's father in his favour.

5. In the petition, the petitioner has challenged the order of the Revenue Tribunal on the following grounds:

(1) that the said grant was a composite and an indivisible grant and that therefore the provisions of the Miscellaneous Alienations Abolition Act did not apply to it and the grant of cash allowance therefore was not an alienation within the meaning of the Act;

(2) that the decision of the Government of Bombay to treat the said cash allowance for the life-time of the petitioner only instead of as a hereditary grant was unauthorised, illegal and void and consequently was not binding upon the petitioner;

(3) that decision was illegal and void as it was made behind the petitioner's back and was therefore contrary to the principles of natural justice;

(4) that the Revenue Tribunal was in error in basing its decision on the footing that the alienation was for life only, as under the Act the only authority which could decide that question was the State Government and therefore the Deputy Collector as also the Revenue Tribunal had no jurisdiction to determine that question; and

(5) that the Miscellaneous Alienations Abolition Act, 1955, was ultra vires the Constitution.

6. We may point out at this stage that Mr. Amin, appearing for the petitioner, expressly stated before us that he was not questioning in this petition the constitutional validity of the Miscellaneous Alienations Abolition Act. We may also point out that though the petition challenges the Tribunal's order on various grounds, Mr. Amin confined his challenge on the following grounds only, namely:

(1) that the grant of cash allowance having been made by the ex-ruler of Rajpipla prior to the merger of his State and at a time when he enjoyed full sovereign rights, the grant was a legislative act on his part which could not, subsequent to the merger, be altered from a hereditary to a life-time grant by a mere executive fiat of the Government of Bombay;

(2) that the ruler, after the merger of Rajpipla State, had no right to agree to modify that grant from a hereditary grant to one for life only;

(3) that therefore, the alteration of that grant to a grant for the life of the petitioner only was invalid, null and void; and

(4) that the Deputy Collector as also the Revenue Tribunal, while deciding the quantum of compensation, ought to have decided from the terms of the Sanad that the grant was hereditary and that therefore compensation payable to the petitioner would be seven times the allowance under Section 15(1)(i) and not three times under Section 15(1)(iii)

Mr. Amin urged somewhat strenuously that when the petitioner applied to the Deputy Collector for compensation, it was the duty of the Deputy Collector to decide the question whether the grant was hereditary or for life only instead of proceeding on the basis of the previous decision of the Government of Bombay that it was for life only. In the alternative, he urged that when the Deputy Collector proceeded to deal with the petitioner's application, a question arose whether the cash allowance was hereditary or for life only, and since under Section 2(4) of the Act the exclusive jurisdiction to determine that question was with the State Government, the Deputy Collector ought to have stayed the application and referred the question to the State Government instead of determining it himself. Such a decision was, by reason of Section 2(4), without jurisdiction and therefore null and void. Since the challenge to the order of the Revenue Tribunal is based on these grounds, we will deal with these grounds only.

7. Before considering the contentions urged by Mr. Amin, we think it is necessary to acquaint oneself with some of the relevant provisions of the Act. Section 2(1)(i) defines an 'alienation' as meaning a grant or recognition as a grant inter alia of cash allowance or an allowance in kind to any person by whatever name called by the relevant authority for the time being before merger. Section 2(1)(vii) defines a 'Collector' as including an officer appointed by the State Government to perform the functions and exercise the powers of the Collector under this Act. Section 3(1)(xii) defines 'merger' as meaning the cessation by the ruler or a former Indian State of full and exclusive jurisdiction and powers for and in relation to the governance of such State and the transfer of the administration of such State to the State of Bombay under Section 290A of the Government of India Act, 1935. Section 2(4) provides that if any question arises inter alia as to whether any alienation is hereditary or for the life-time of the alienee, the State Government shall decide the question and such decision shall be final. The sub-section has a proviso which lays down that the State Government may authorise any officer to decide questions arising under any of the clauses in that sub-section, and subject to an appeal to the State Government, the decision of such officer shall be final. Chapter III of the Act contains provisions with regard to compensation and award therefor. Section 15 deals with cash allowance and provides that in the case of an alienation consisting of a cash allowance or allowance in kind, the alienee shall be paid (i) seven times the amount of the cash allowance or of the value of the allowance in kind, as the case may be, if the alienation was hereditary without being subjected to deduction or cut at the time of each succession, and.... (iii) three times the amount of cash allowance or the value of the allowance in kind, as the case may be, if the alienation was continuable for the life-time of the alienee. It was under Section 17 that the petitioner filed his application for compensation claiming such compensation under Section 15(1)(i). Section 17 provides that any alienee entitled to compensation under Sections 14, 15 and 16 shall within the prescribed period apply in writing to the Collector for determining the amount of compensation payable to him under that section and on receipt of an application under Sub-section (1), the Collector shall, after making formal enquiry in the manner provided by the Land Revenue Code, make an award determining the amount of compensation. Thus, under Section 15, the Legislature has provided a measure of compensation in the case of abolition of cash allowance, namely, seven times if, on the appointed day, the cash allowance is hereditary and three times the cash allowance if what is abolished by the Act is on the appointed day an allowance for life only.

8. As already pointed out, Mr. Amin argued the petition on the footing that the Miscellaneous Alienations Abolition Act, 1955, was a valid Act and was applicable to the claim of compensation made by the petitioner. As already stated, long prior to the enactment of this Act, the Government of Bombay had already arrived at a decision and had communicated that decision to the ruler of Rajpipla that the cash allowance in question was to be treated not as hereditary but only for the life-time of the petitioner. This decision was arrived at a conference between the ruler and the Government of Bombay, and it appears from the judgment of the Tribunal that decision was communicated both to the ruler as also to the petitioner. Yet, no attempt was made at any time by either of them to challenge the binding nature or the validity or the correctness, of that decision.

9. Contentions (1), (2) and (3) raised by Mr. Amin clearly depend question whether the grant of cash allowance made by the ruler a legislative act on his part and if so, whether a part of that grant that is, the part dealing with cash allowance, could be modified by the State Government after the merger of the State to one for life. It will seen that the modification, was decided upon only with reference to part of the grant which have the cash allowance. The rest of grant, namely, with regard to the Hbes and their revenue, remained untouched. The submission made by Mr. Amin was that looking to the of cash allowance was hereditary, that it was conferred by legislative act on the part of the ruler and that it could be modified, therefore only by legislative and not by a mere executive act on the part of the Government of Bombay and therefore the modification was illegal, null and void. He therefore, used that such a decision to reduce the cash allowance to one for life only being null and void, the petitioner was entitled to ignore that decision and was consequently not bound to agitate against it or to have it set aside.

10. In support of the submission that the grant was a legislative act on the part of the ruler, Mr. Amin strongly relied on certain decisions of the Supreme Court, and argued on the basis of those decisions that we must hold that the grant was a legislative act of the ruler in his sovereign capacity and could, therefore, be qualified or altered only by legislation after the State's merger with the then State of Bombay. The first decision relied on by him was the one in Madhaorao Phalke v. The State of Madhya bharat : [1961]1SCR957 where the question which the Supreme Court had to deal with was whether the Kalambandhis, under which the right of the appellant to receive a certain sum per month by way of Bachat or balance was guaranteed, constituted an existing law within the meaning of Article 372 of the Constitution. In that case, the appellant Phalke claimed that as an Ekkam, he and his ancestors had been receiving the monthly payment of Rs. 21-8-0 from the State of Madhya Bharat. The appellant's ancestors had accompanied the Scindhias to Gwalior from Maharashtra about two hundred years ago and had rendered certain military services, and in recognition of those services, his ancestors, were granted a fixed amount of money per month and this amount was received by the appellant's family for several generations past. The right to receive this amount had been recognised by the rulers of Gwalior in several statutes, orders, rules and regulations having the force of statutes and amongst them were the Kalambandhis of 1912 and 1935. On April 18, 1952, the Government of Madhya Bharat issued an executive order, terminating this payment and thereupon the appellant filed a writ petition before the High Court of Madhya Bharat under Article 226, praying for a writ of mandamus calling upon the State of Madhya Bharat to forbear from giving effect to the aforesaid executive order. The appellant's case was that his right to receive a specified amount had been statutorily recognised by the State of Gwallor and, therefore, it was not open to the State of Madhya Bharat to extinguish that right merely by an executive order. In the alternative, it was contended that the right to receive such monthly allowance was property and that right could not be extinguished without compensation by reason of Article 31 of the Constitution. We are concerned in this case only with the first and not the second contention. As regards the first contention, the Supreme Court held that the Maharaja of Gwalior being an absolute monarch of an Indian State, there was no constitutional limitation upon the authority of the ruler to act in any capacity he liked. He would be the supreme legislature, judiciary and the supreme head of the executive, and all his orders, however issued, would have the force of law and would govern and regulate the affairs of the State including the rights of its citizens. The Supreme Court also held that the Kalambandhis of 1912 and 1935 issued by the ruler of Gwalior State and upon which the appellant's right as an Ekkam to receive the monthly payment by way of Bachat was guaranteed, had the force of law and would amount to an existing law under Article 372. Therefore, even if the Kalambandhis in question did not amount to a quanum or law technically so called, they would, nevertheless, be orders or regulations which had the force of law in the State of Gwalior at the material time and would be saved under Article 372. The Supreme Court observed that merely because the Kalambandhis was not described as a quanum or was not published in the Government Gazette, it should not be treated as an executive order, for the words used in describing the several orders issued by the ruler could afford no material assistance in determining their character. On this basis, it was held that the right guaranteed to the appellant by an existing law, namely, the Kalambandhis, could not be extinguished by the issue of an executive order. At pages 302 and 303 of the report, the Supreme Court observed that the words used in describing the several orders issued by the ruler not affording any material assistance in determining their character, it was necessary to consider the character of the orders contained in the Kalambandhis. The first Kalambandhis consisted of fifty-four clauses. The Supreme Court stated that though that Kalambandhi began by saying that it had been issued for the purpose of arranging the administration of the department of irregular unit of Shiledari, the nature of the provisions contained therein 'unambiguously impressed upon it the character of a statute or a regulation having the force of a statute.' These provisions recognised and conferred hereditary rights and contained provisions for the adopting of a son by the widow of a deceased silledar subject, however, to the approval of the State. It also provided for the maintenance of widows out of funds specially set apart for that purpose and even contemplated the offering of a substitute when a Silledar had become old or had otherwise become unfit to render service. The Kalambandhi also made a detailed provision as to the mutation of names after the death of a Silledar and it also directed that the Asami being for the Shiledari service it could not be mortgaged for a debt of any banker and that if a decree was passed against a Silledar and the decree-holder sought to proceed against the amount payable to him, the execution had to be carried out in accordance with the manner and subject to the limitations prescribed in that behalf. On an examination of these provisions, the Supreme Court held that the detailed provisions contained in this Kalambandhi dealt with several aspects of the amount payable to the recipient and that, considered as a whole it could not be treated as an administrative order issued merely for the purpose of regulating the administration of the department of irregular forces. As regards the second Kalambandhi of 1935, it was substantially on the same line as the first Kalambandhi and the Supreme Court, on a consideration of its clauses, was of the view that even this Kalambandhi read like a statutory provision whereby the earlier relevant statute was repealed. The second Kalambandhi also provided for the regulation of succession and adoptions, for an enquiry for mutation and heirship, for a substitute being given in case the Silledar was unable to work him, self prescribed a disqualification from service where the Ismdar was convicted, and imposed similar limitation on execution against the amount of the Asami. Clause 22 of this Kalambadhi provided that in case there was no legal heir or the widow of the deceased Ismdar, his name would be struck off and the Asami would at once be given to other person. But in no case would the Asami be abolished. In view of these clauses, the Supreme Court held that having regard to the contents of the two orders and the character of the provisions made by them in such a detailed manner, it was difficult 'to distinguish them from statutes or laws; in any event they must be treated as rules or regulations having the force of law.' In that view, the Supreme Court held that since the Kalambadhis on which the appellant's right was based were rules or regulations having the force of law, the right guaranteed to the appellant by such existing law could not be extinguished by an executive order. The second decision relied on by Mr. Amin was that in Pramod Chandra Deb v. The Stale of Orissa : AIR1962SC1288 where again the question was whether the grant by way of maintenance called Khor Posh Grant, made by a former ruler could be interfered with by executive action after the merger of the ruler's State. In 1903, when the petitioner in writ petition No. 79 of 1957 was born, his father who was then the ruler of Talcher, made a grant of five villages in perpetuity to the petitioner. The grant conveyed to the petitioner proprietary rights in these villages. By an order dated March 31, 1912, the ruler directed that the income of these five villages should be collected by the State officials and deposited in the State treasury and the petitioner should be paid in cash the equivalent of the income from these villages amounting to Rs. 5,926/- and odd. A subsequent order of 1929 passed by the ruler directed the Settlement Officer to keep the aforesaid grant yielding the cash income of Rs. 5,926/- and odd intact to be enjoyed by the petitioner in perpetuity under hereditary rights. By an order dated March 16, 1944, the ruler, after making necessary enquiry, directed that the petitioner should be paid Rs. 6,200/- a year as cash allowance out of the State treasury in lieu of the income of the villages granted to the petitioner as aforesaid, and since then the petitioner was being paid regularly the allowance at the rate of Rs. 500/- per month till April 1949. In August 1947, the petitioner's elder brother, who was then the Raja of Talcher, executed an Instrument of Accession. A merger agreement also was made between the Dominion of India and the said Raja, in December 1947; and on January 1, 1948 the State of Talcher merged in the of India in accordance with the aforesaid Merger Agreement, of the petitioner was that the Khor Posh grant made to him as a foresaid was recognised by the State and that even whith out such recognition his rights before the merger of the State of Talcher in Orissa remained intact and neither the Central nor the State, Government Could question through rights. The petitioner was not paid his cash allowance due for the of April 1949 and, in answer to the correspondence carried on by him with the Government of Orissa, the latter informed him by a letter of June 22, 1949 that since he had extensive landed property and was well off in life, the Government of India had decided not to pay him any monthly cam allowance and that the decision of Government of India was final in the matter and could not be reconsidered. It was this order which the petitioner challenged before the Supreme Court. On behalf of the State of Orissa, it was inter alia urged that the grant in favour of the petitioner was not a law and was neither recognised nor continued in force by virtue of sub-para (b) of para 4 of this Administration of Orissa States Order of 1948. Relying upon its earlier judgments including the decision in : [1961]1SCR957 the Supreme Court held that those decision supported the conclusion that whether the act of the former ruler in making the grant partook of the character of legislative or executive action it had the effect of law, and secondly that the rights contained in Order 31 of the Rules and Regulations of the State of Talcher, 1937, had the effect of law and been continued in force in the absence of any legislation to the contrary. The Supreme Court observed that the Kalambandhis' case was particularly apposite to the facts and circumstances of the case and that Order 31 of the Talcher Rules and Regulations, stood on the same footing as the Kalambandhis which were the subject matter of the decision in : [1961]1SCR957 It further observed that these rules and regulations, as the Kalambandhis did in that case, had the force of law and would be existing law within the meaning of Article 372, that the provisions of para 4 of Order of 1948 clearly applied and that therefore, the Talcher Regulations of 1937 continued in force. The Supreme Court also observed that the explanation to sub-para (b) of paragraph 4 of the Administration of Orissa States Order, 1948, clearly stated that the expression 'laws' included rules, regulations, bye-laws and orders, and in view of the amplitude of the provisions of sub-para (b) of paragraph 4, the conclusion was irresistible that the new sovereign, by the legislativeorder of 1948, had recognised the customary grant in favour of Khorposhdars of talcher, including the petitioner, subject of course, to the right of State to alter or amend the order by legislation under the Extra Provincial Jurisdiction Act of 1947. It is clear from these observations that the Supreme Court, following its earlier decisions, held (a) that whether the grant partook of the character of a legislative or an executive action, it had nevertheless the effect of law, (b) that Order 31 of the Talcher Rules of 1937 had the effect of law and had been continued in force in the absence of any legislation to the contrary and therefore would constitute existing laws, and (c) that in view of the wide language of sub-para (b) of paragraph 4 of the Administration of Orissa States Order, 1948, a grant made under Order 31 of the Rules of 1937 would be a legislative order and would, therefore, be an existing law binding on the State of Orissa, unless it was altered or amended by legislation. We may observe that no argument on the basis of a distinction between legislative, executive and judicial act of a ruler, though all the three powers rested absolutely in him, was urged at the time and, therefore, that aspect of the question was not considered and Order 31 of the Rules of 1937 was assumed to have the force of law and therefore an order of grant made thereunder was held to be an existing law falling under sub-para (b) of para 4 of the Administration of Orissa States Order, 1948. It will be seen from these two decisions that though certain observations were made therein which might suggest that all orders, whether legislative or executive, emanating from a sovereign ruler in whom all powers, legislative, executive and judicial, resided, are laws or have the force of law, no question as to the distinction between the three different types of orders was raised in those decisions and such a question therefore had not to be and was not considered by the Supreme Court. Even then, in point of fact, both the decision turned on the nature and the contents of the orders in question there and it was only from a consideration of the true nature of the Kalambandhis in one and the orders of granting Khor Posh in the other that the Supreme Court held that they were existing laws or had the force of law which could be modified or extinguished only by legislation.

11. Mr. Amin in fact admitted that that was the position, and stated that in view of the later decisions of the Supreme Court, to which we shall presently come, he was not in a position to urge that all orders and grants made by a former ruler, whether they partook of the legislative or an executive action, would be laws or rules having the force of law merely because they were of a binding character, and conceded that it would only be the laws made in exercise of legislative power which would be binding on the successor State and therefore could be extinguished or altered only by subsequent legislation. But, what Mr. Amin emphasized was that on the analogy of the Kalambandis in Madhaorao Phalke's case (supra), the present grant should be held as a legislative act and, therefore, could only be altered by legislation and not otherwise.

12. Before we examine this part of his contention, we think to deal with the two later decisions of the Supreme Court in which the previous decisions in : [1961]1SCR957 and : AIR1962SC1288 have been considered. In Stale of Gujarat v. Fiddali : [1964]6SCR461 the ruler of Santrampur State had ceded the territory of his State to the Government of India by an agreement dated March 19, 1948. Under certain orders, the Government of Bombay took over the administration of that territory which then became part of the Province of Bombay as from August 1, 1949. On October 1, 1948, a Letter of Guarantee was written to the ruler by the Ministry of States, Clause 7 whereof stated that no order passed or action take by the ruler before the date of making over the administration to the Indian Government would be questioned, unless the order was passed or action taken after April 1, 1948 and unless it was considered by the Government of India to be palpably unjust or unreasonable. That letter was to be read as part of the Merger Agreement. It happened that about a week before ceding the territory of his State, i.e. on March 12, 1948 the ruler passed a Tharav by which holders of certain villages were given full rights and authority over the forests in the villages under their vahivat. Some of these holders then executed contracts in the years 1948 and 1950 in favour of the plaintiffs. After the merger, the question arose whether these contracts should be approved or not. Considering that the Tharav made by the ruler transferring the forest rights was mala fide, the Government of Bombay cancelled it in July 1949, whereupon the contractors filed suits in which they claimed injunctions restraining the State Government from interfering with their rights to cut and carry away timber etc., from these forests. The Government of Bombay thereafter passed resolutions in 1951 and 1953 to the effect that the ruler's Tharav would not be given effect to. Before the Supreme Court, the question for determination was whether the rights which were in controversy between the parties could be enforced by municipal courts, that is to say, whether or not the act of State, pleaded by the State, was an effective answer to the claims made by the contractors of their rights over the forests. The Supreme Court held that the integration of Indian States with the Dominion of India was an Act of State and the Government of Bombay and the Central Government could refuse to recognise rights created on the eve of the merger by tharavs of rulers and say that it was not acceptable to them and therefore not binding on them. The Tharav in question was-

The Jivak, Patavat, Inami, Chakriyat, Dharmada villages in Sant State are being given (granted) to Jagirdars and the holders of the said villages are not given rights over forests. Hence after considering the complaints of certain Jagirs, they are being given full rights and authority ever the forests in the villages under their vahivat. So, they should manage the vahivat of the forest according to the policy and administration of the State. Orders in this regard to be issued.

In considering the question whether this order could be regarded as law within the meaning of Clause 4 of the Administration of Indian States Order, 1948, the Supreme Court drew a distinction between the exercise of legislative, executive and judicial power, observing that whereas the legislative power was the power to make, alter, amend or repeal laws and within certain limits to delegate that power, and such power was to lay down a binding rule of conduct, the executive power was a power to execute and enforce laws and the judicial power was the power to ascertain, construe and determine the rights and obligations of the parties before a tribunal in respect of a transaction on the application of the laws. The Supreme Court observed that even in an absolute regime that distinction of functions prevailed. If an order was made during the regime of a sovereign who exercised absolute powers and it was enforced or executed leaving nothing more to be done thereunder to effectuate it, any discussion of its true character would be an idle exercise. Where, however, in a set-up-Where the rule of law prevails, to support action taken pursuant to an order, one has to reach the source of authority in the power of the previous autocratic sovereign the true nature of the function exercised might become important, where the laws of the former State were by express enactment continued by the new sovereign. At page 1086, of the report after considering the previous decisions of the Supreme Court and, in particular, the decisions in Medhaorao Phalke's case and in Pramod Chandra Deb's case (supra), Shah J. observed that though the form of the order was not decisive, the important test for determining the character of the sovereign function was whether the order expressly or by clear implication prescribed a rule of conduct governing the subject which may be complied with, a sanction demanding compliance therewith. He also held that the order in question was expressly in the form of a grant of rights which were not previously granted and did not either expressly or by implication seek to lay down any binding rule of conduct and that, therefore, the order in question was not law, nor was it an order made under any law within the meaning of Clause 4 of the Administration of Indian States Order, 1948. It was observed that the order in question was neither in the form of a legislative enactment, nor did it seek to lay down a course of conduct but merely purported to transmit certain rights, which were till the date of the order vested in the ruler, to the Jagirdars who were the grantees of the villages. It was held that it was difficult to hold that an order merely granting forest rights, not in pursuance of any legislative authority but in exercise of the power of the sovereign in whom the rights were vested, to the Jagirdars to whom the villages were granted without forest rights, could be regarded as law within the meaning of Clause 4 of the said order of 1948 when the order was not intended to lay down any binding rule of conduct and merely purported to convey rights which till then were vested in the ruler.

13. The position that all orders of a ruler with autocratic powers and without any constitutional limitations are not, irrespective of whether they emanate from legislative authority or not, laws, was again emphasized in Narsing Pratap Singh Deo v. The State of Orissa : [1964]7SCR112 The question in that case was somewhat similar to the one arising before us, and that question was whether the Sanad issued in favour of the appellant by his elder brother, the ruler of the then Dhenkanal State, on March 1, 1931 was an existing law within the meaning of Article 372 read with Clause 4(b) of Order 31 of 1948 issued by the State of Orissa. The State of Dhenkanal merged with the Province of Orissa, under a Merger Agreement dated December 15, 1947. Consequently the entire administration of the State was taken over by the State of Orissa pursuant to the authority conferred upon it by Section 3(2) of the Foreign Jurisdiction Act, 1947. Since 1931, the appellant was getting a monthly allowance Rs. 500/- from the Dhenkanal District Treasury on the authority of permanent pay order which had been issued in his favour by the ruler the basis of the said Sanad. This payment was discontinued by the State of Orissa from May 1, 1949 and thereupon, the appellant filed a suit in 1951 alleging that the discontinuance of the pension by the State of Orissa was illegal. The contention of the appellant was that it had been recognised in his family as a customary right of the junior members of the family to receive adequate maintenance consistent with the status of the family. His allegation was that the custom was recognised in Dhenkanal and enforced as a customary law in the State and that it was in accordance with such a customary law that the Sanad in his favour was issued under which certain lands were granted to the appellant and a cash allowance of Rs. 500/- per month was directed to be paid to him for life. His contention further was that the grant was a law within the meaning of Article 372, that as such it had to be continued and further that after the merger of Dhenkanal with Orissa his right to receive the grant had been recognised and acted upon. On behalf of the appellant it was urged before the Supreme Court that at the time when the Sanad was granted, the ruler of Dhenkanal was an absolute monarch and in whom the full sovereignty vested, that as such absolute sovereign he was endowed with legislative, judicial and executive powers and whatever order he passed amounted to law, for in the case of an absolute monarch whose word was literally law, it would be idle to distinguish between binding orders issued by him which were legislative from other binding orders which were executive or administrative. Therefore, all binding orders issued by such a ruler were law, and the Sanad in question fell within the category of such law. The Supreme Court, in negativing this argument, observed:

It is true that the legislative, executive and judicial powers are all vested in an absolute monarch; it is the source or fountain of all these powers and any order made by him would be binding within the territory under his Rule without examin-i'g the question as to whether it is legislative, executive or judicial, but though all the three powers are vested in the same individual, that does not obliterate the difference in the character of those powers. The jurisprudential distinction between the legislative and the executive powers still remains, though for practical purposes, an examination about the character of these orders may serve no useful purpose. It is not as if where absolute monarchs have sway in their kingdoms, the basic principles of jurisprudence which distinguish between the three categories of powers are inapplicable. A careful examination of the orders passed by an absolute monarch would disclose to a jurist whether the power exercised in a given case by issuing a given order is judicial, legislative or executive, and the conclusion reached on jurisprudential grounds about the nature of the order and the source of power on which it is based would nevertheless be true and correct. That, indeed, is the approach which must be adopted in considering the question as to whether the grant in the present case is law within the meaning of Article 372 as well as Clause 4(b) of Order 31 of 1948,

At page 1797 of the report, the Supreme Court further observed that a theoretical or academic discussion as to the distinction of law from an order would not be necessary because all that they were considering at stage was whether or not it would be possible to consider, by reference the character of the order, its provisions, its context and its general setting, whether it was a legislative order or an executive order. The Supreme Court stated:

Though theorists may not find it easy to define a law as distinguished from executive orders, the main features and characteristics of law are well recognised. Stated broadly, a law generally is a body of rules which have been laid down for determining legal rights and legal obligations which are recognised by courts. In that sense, a law can be distinguished from a grant, because in the case of a grant, the grantor and the grantee both agree about the making and the acceptance of the grant; not so in the case of law. Law in the case of an absolute monarch is his command which has to be obeyed by the citizens whether they agree with it or not. Therefore, we are inclined to hold that Mr. Setalvad is not right in making the unqualified contention that while we are dealing with a grant made by an absolute monarch, it is irrelevant to enquire whether the grant is the result of an executive action, or a legislative action.

Having made this distinction between the three powers, the Supreme Court proceeded to consider the question whether the Sanadm question was a legislative or an executive act. After examining its provisions and applying the test laid down by it to that Sanad, the Supreme Court held that it was plain that there was no legislative element in any of the provisions of the Sanad, It did not contain any command which had to be obeyed by the citizens of the State. It was a gift pure and simple made by the ruler in recognition of the fact that under the custom of the family and the customary law of the State, he was bound to maintain his junior brother. The grant, therefore, represented purely an executive act on the part of the ruler, intended to discharge his obligation to his junior brother under the personal law of the family and the customary law of the State. Though the act was based partly on the requirement of personal and customary laws, the action taken by the ruler in discharging his obligation under such a personal and customary law could not be 'assimilated to an order issued by him in exercise of his legislative authority,' and therefore, the Sanad was held to be purely an executive act. The Supreme Court also observed that the grant of the land covered by the Sanad had not been disturbed and that all that the impugned action of the State amounted to was to reduce the total maintenance allowance granted to the appellant by the ruler in 1931. It also observed that though the customary law requiring provision to be made for the maintenance of the appellant was in force, the State had the right to determine what would be the adequate and appropriate maintenance, and that part of the right was purely executive in character. It would be unreasonable to suggest that though the Sanad was not law, the amount granted by the Sanad could not be modified by executive action of the respondent. All that the customary law required was the making of suitable provision for maintenance of the junior member of the family, but what was adequate provision in that behalf would always be a question of fact which had to be determined in the light of several relevant factors, the number of persons entitled to receive maintenance, the requirements of the status of the members of the family, the total income deprived by the family, and other commitments, might all have to be weighed in deciding the quantum maintenance which should be awarded to any one of the junior member The Supreme Court also negatived the plea that the State of Orissa court not cancel the order of cash allowance by an executive action as the payment was made to the appellant for some time after the merger an observed that such an argument would not avail the appellant, for in the very nature of things, the State of Orissa could not have decided whether the cash allowance should be continued to the appellant or not without examining the merits of the case, and since a large number of such cases had to be examined after the merger, if the payment was continued in the meantime such payment could not be any valid ground for challenging the legality of the ultimate decision of the State discontinuing the payment of that allowance.

14. It is thus clear that though the three powers, legislative, executive and judicial, may rest in an autocratic State where there are no constitutional limitations in a single sovereign authority the distinction between the exercise of one or the other is not only real but also relevant. When, therefore, a question arises whether an act in question is legislative or executive, one has not merely to examine the form or the description of it or the manner of its emanation, for these would not by themselves be conclusive as held in Madhaorao Phalke's case (supra), but must look to its true nature and substance. The Court must, in construing such an act, ask itself, does the act amount to a command or a rule of conduct to be obeyed by the subjects of the State, and is the act attributable to the exercise of the legislative authority of the ruler in the sense that it lays down a body of rules determining the rights and liabilities, not deriving its authority from a consensus of minds but from the expression of sovereign will? Putting it a little differently, as is sometimes done, a legislative act 'looks to the future and changes the existing conditions by making a new rule to be applied thereafter to all or some part of those subject to his power and determines what shall in future be the mutual rights and responsibilities of the parties by prescribing a binding rule of conduct creating new rights and obligations.'

15. Mr. Amin also relied upon a decision of a Division Bench of this Court in Kadi Municipality v. The New Chhotalal Mills Co. Ltd. I.L.R. 1965 Guj. 145, where it has been held that the Tharav in question there made by the Baroda Government in 1935 granting partial exemption to the respondent in respect of payment of taxes and octroi duty for a period of twenty years was a legislative act. In June 1934, the respondent company applied to the Baroda Government for exemption from certain taxes and duties, and by a Tharav dated April 16, 1935, the Baroda Government granted those exemptions to the company. One of the exemptions was from octroi duty leviable by the Municipality in respect of goods which might be brought within the mill premises by the company. The exemption, however, was not a total but was a partial one in that octroi duty was exempted only to the extent to which it exceeded Rs, 300/-. At the date of the Tharav the mill premises, however, were not in the limits of the Municipality and there was accordingly no octroi duty payable by the company in respect of goods which might be brought by it within the mill premises. In February 1937, a notification was issued under the B Class Municipalities Act of Baroda State by which the Kadi Municipality was governed, extending the limits of that Municipality so as to include within those limits the lands on which the mill was situate. The mill premises thus having been brought within the municipal limits, the company became liable to pay octroi duty in respect of goods brought by it within the mill premises. But by reason of the exemption, the liability of the company to pay octroi duty was limited to Rs. 300/- only per year, and the company accordingly did not pay any amount exceeding Rs. 300/- per year as and by way of octroi duty. On may 1, 1949, the merger of the Baroda State took place and thereupon, the territories of the Baroda State were governed by the State of Bombay, until the passing of the States Merger (Governors Provinces) Order, 1949 by which the Baroda State territories became part of the Province of Bombay. The exemption from octroi duty in excess of Rs. 300/- per year was enjoyed by the respondent company and continued to be enjoyed by it until October 22, 1952, when the Government of Bombay cancelled the exemption, and on that order having been communicated to the Kadi Municipality, the Municipality served a notice on the company requiring it to pay octroi duty of Rs. 715/- and odd for the period between October 22 and October 31, 1952 on the footing that the exemption was no longer available to the company. The Division Bench observed that the test in respect of the order of cancellation was whether the act in question embodied the command of the sovereign prescribing a binding rule of conduct determining legal rights and obligations. Law, it was observed, was the emanation of the will of the sovereign which prescribed a binding rule of conduct for observance in future and affecting legal rights and obligations of persons subject to his power. Applying this test and examining the provisions of that Tharav, it was held that the Tharav was a legislative act and not an executive act. The clause which gave exemption to the company did not prescribe any covenant on the part of the ruler to grant exemption to the company at the time when octroi duty became payable by the company, but it granted exemption inpresenti to the company. It was an immediate exemption and nothing further was required to be done by way of granting exemption at the time of levy of octroi duty on the mill premises coming within municipal limits. The exemption which was granted with immediate effect was an exemption from levy of octroi duty under a legislative enactment, namely, the B Class Municipalities Act. The legislative enactment together with the statutory rules made thereunder determined until then the rights and liabilities of the Municipality on the one hand and persons bringing goods within the Municipal limits on the other. By the Tharav, these rights and liabilities created by legislative provisions were affected in the sense that the ruler declared as his sovereign will that from and after that date, no octroi duty in excess of Rs. 300/- could be levied by the Municipality from the company. Thus, the Tharav affected the operation of a legislative enactment and, therefore, must necessarily be regarded as impressed with legislative character. It also prescribed a binding rule of conduct which was to be enforced for a period of twenty years and which determined the rights and liabilities of the Municipality and the company in regard to octroi duty for that period. Therefore, the essential attributes of a legislative act existed in the case of the Tharav so far as Clause 1 was concerned. The Division Bench also held that Clause 2 and the first part of Clause 4 of the Tharav also, for the very same reasons, bore the legislative character inasmuch as they prescribed the rate of income-tax leviable from the company for a period of ten years and also granted exemption to the company from Mokhrans tax for a similar period. In that view, it was held that the exemption granted to the mills could not be withdrawn by an executive fiat and was binding on the State of Bombay. It is thus clear that until the said Tharav was issued, the position clearly was that the B Class Municipalities Act provided for the right of the Municipality to levy octroi duty, and a corresponding obligation on all persons bringing goods into its limits to pay octroi. The Tharav obviously was not a contract between the ruler and the company, nor was it a grant but was a fiat issued by the sovereign affecting the rights of the Municipality on the one hand and the liability of the respondent company on the other under the aforesaid Act. It was not a giant which would confer new rights without affecting the existing rights and liabilities under the statute but laid down a binding rule of conduct as from the date of the Tharav changing as from its date the existing tights and liabilities under the Act and determining what shall henceforth be the mutual rights and liabilities of the parties under the B Class Municipalities Act prescribing thus a binding rule which created new rights and obligations of the parties. It is difficult to see how, in view of the facts of that case. Mr. Amin can bring this decision to his aid.

16. The question then is, what is the nature of the order before us and does it comply with the test laid down in the decisions cited above and, in particular, in the decision reported in : [1964]7SCR112 Clause 1 of the order recites that it was made for the maintenance of the petitioner who was the second son of the ruler. Clause 2 recites the fact of the ruler gifting away the three villages mentioned therein, yielding an annual income of Rs., 15, 533/- and an annual cash allowance of Rs. 20,467/-. Clause 3 provides that the petitioner was to be the full owner of the entire revenue of these villages, and Clause 4 provides that the petitioner and his heirs were to be the sole and absolute owners of with hereditary title to the said villages yielding the aforesaid revenue, and in addition they were to get from the State treasury every year the sum of Rs. 20, 467/- with the same hereditary title. Clause 5 provides that these villages were given to the petitioner with hereditary title except that the civil, criminal, revenue and police powers were to continue with the State and all rights relating to Abkari, opium and other intoxicating drugs and excises on other substances would continue to belong to the State. Clause 6 provides that all rights acquired by the Khatedars in each village according to the survey settlement would continue in the same manner in every respect and the petitioner and his heirs would be bound by the survey settlement in the same manner as the State. Clause 7, which was strongly emphasized by Mr. Amin, provides that the petitioner was invested with all the powers to take precautionary measures and to attach crops and sell them in order to prevent defalcation and to collect revenue effectively, but it also provides that persons whose crops would be attached or sold would have a right to appeal before the State and, pending the disposal of such appeal, action could be taken only in conformity with the order that may be passed by the Durbar. Clause 8 then provides that subject to the right of Khatedars and other private persons, the petitioner would be the owner of all Durban lands in the villages and he would have proprietary rights over them. Clause 9 lays down another restriction viz., that the settlement of the alienated lands in each village as fixed by the State would have to be respected and there would be no interference in that matter by the petitioner. Clause 10 contains a further restriction, that the lands assigned to village servants for remuneration for their services would be continued and the appointment of the Police Patel would be made by the Durbar but with the consent of the petitioner. Clause 1-1 provides that in each village the land appropriated by the State for public purposes would be continued for the same purpose and the petitioner would have no right to make any alterations in them without the special permission of the Durbar. Clause 12 provides that the villages and the cash allowance given to the petitioner would descend hereditarily to those in direct male descent and in the absence of such heirs, would be liable for resumption. In the event of such resumption, the Durbar would have to make due provision for the maintenance of the widow and for the marriage of the daughters, if any, of the last male heir in the male line. Clause 13 provides the usual restriction against alienation by the petitioner by way of mortgage, sale or gift.

17. Mr. Amin argued that these clauses provided inter alia for a rule of succession, different from the normal rule of succession, in that it restricted succession to the male descendants only and provided for resumption with an obligation to make provision for maintenance of the widow of the last male descendant in case he left no male surviving him, that it conferred hereditary title and enjoined upon the tenants to pay revenue to the grantee on pain of attachment and sale of crops. He also urged that the right to attach granted to the petitioner was binding on third parties, namely, the tenants. The argument was that these provisions were akin to those in Kalambandhis' case (supra) and, therefore, must be held to have been made in exercise of the legislative authority.

18. It is not possible to sustain this argument. In our view, the present case is more analogous to the case of Fiddali (Supra) and that in : [1964]7SCR112 rather than the two previous decisions reported in : [1961]1SCR957 and : AIR1962SC1288 In the first instance, though the form of the order may not be conclusive, it sometimes would afford a relevant indication as to which of the three different powers the ruler intended to exercise. It will be noticed that the order in the present case is marked confidential, a relevant indication indeed showing that it could not conceivably have been intended to be a legislative act laying down a binding body of rules. In the second place, the order and the Sanad made in pursuance thereof are simply grants, depending upon the mutual consent of the grantor and the grantee. The ruler before the merger had all the powers, legislative, executive and judicial, vested in him and therefore was in a position to dispose of any property of the State. No doubt, his executive orders also would be valid and binding on all persons concerned, but neither that, nor the fact that the grant was made on account of a custom prevailing in the State for making provisions for maintenance of the junior members of the royal family, would, as held in : [1964]7SCR112 constitute the order a legislative action or law in the true sense of the term. It is true that the grant was made hereditary. It is also true that though it was hereditary, the succession was restricted to male descendants and was liable to resumption in case the last male member did not leave him surviving a male descendant and in such a case there was an obligation to provide maintenance for the widow of such last male descendant. But these are merely terms and conditions of the grant and do not constitute a special law or a rule of succession. The other provisions also are equally conditions of the grant. The grant, no doubt, confers power to attach and sell crops belonging to tenants, but that power was incidental to the grant of the revenue which gave power to levy and collect assessment from the tenants who, but for the grant, were liable to pay the revenue to the grantor. If no such power to attach or sell was conferred, it is possible that the power to collect assessment may turn but to be ineffective. But such a power is not unqualified, for it provides that a person whose crops are attached or sold could still file an appeal before the relevant authority of the State. Thus, the power to attach and sell crops was incidental to or ancillary to the main power of collection of revenue. This and other provisions are either conditions or incidental or ancillary powers flowing from the grant itself and do not constitute and enactment or a law or a provision made pursuant to an existing law, as was the case in Kalambandhis' case, or a rule affecting the existing rights and obligations under an existing statute as in the case of the Kadi Municipality. We are, therefore, not in a position to accept Mr. Amin's contention that the order dated August 19, 1946 or the Sanad recording it constituted law. In our view, the order amounted merely to an executive act on the part of the ruler. If that be so, it is conceded by Mr. Amin that it could be altered and even extinguished by an executive action of the successor State after the merger. The decision, therefore, made by the State of Bombay and communicated to the Collector of Broach in the letter dated August 23, 1949 was a valid decision, altering the grant of the cash allowance from a hereditary one to one for life and that decision had to be taken into account by the Deputy Collector and the Revenue Tribunal while deciding the application for compensation under Section 17 of the Act, because it was that right only which can be said to have been recognised by the State Government after the merger of the State of Rajpipla.

19. In this view of the matter, the other contentions of Mr. Amin would not survive. One of such contentions was that when the petitioner filed his application and claimed compensation under Section 15, a question arose whether the grant of the cash allowance was hereditary or not, and since under Section 17 it was the Collector who had to decide the question of compensation payable to the petitioner, it was the duty of the Collector to decide that question. This contention has no force, because in the view that we have taken, no such question could possibly arise by reason of the State Government having already reduced the cash allowance from being a hereditary one to one for life only and the grant being only for life at the date when the Miscellaneous Alienations Abolition Act was enacted, compensation on that basis only could be awarded. There is equally no force in the second contention of Mr. Amin that when the petitioner claimed compensation on the footing that the cash allowance was hereditary, a question arose which, by virtue of Section 2(4), had to be referred to the State Government. That contention has to be rejected also for the same reason because the State Government had already come to a decision reducing the grant of cash allowance for the life-time of the petitioner. That being so, the petitioner was not entitled to, nor could he raise such a question so long as that decision of the State Government was not set aside.

20. The last contention urged by Mr. Amin was that assuming that the order dated August 19, 1946 was an executive act, the obligation to the petitioner and his male descendants was recognised by the State of Bombay under the States Merger (Governors Provinces) Order, 1949 which came into force on and from August 1, 1949. In our view, this contention also cannot be sustained. In the first place, this point has not been taken in the petition and no opportunity having been given to the respondents to answer it, Mr. Amin would be precluded from urging it. Secondly, there is in any event no validity in the contention for the simple reason that as already stated, a conference was held between the ruler and the Government of Bombay on April 26, 1949 whereat it was decided by the Government of Bombay that the grant of cash allowance was to be treated as one for life and that decision furthermore was communicated to the ruler. Therefore, even assuming that the State of Bombay had recognised and continued the grant of cash allowance, the only right that could be said to have been recognised and continued was in respect of the grant of the cash allowance during the life-time of the petitioner and no more and in respect of which alone the petitioner could claim compensation and for which alone he could be awarded compensation.

21. These were all the contentions urged by Mr. Amin. In our view, none of them can be sustained and, therefore, the claim of the petitioner that he was entitled to compensation under Section 15(1)(i) and not under Section 15(1)(iii) cannot be allowed.

22. Before we part with this case, we have to refer to a point raised on behalf of the repondents by the learned Assistant Government Pleader, for, in our view, there is considerable force in it. Mr. Amin, in support of his petition, had urged that the order passed by the Deputy Collector and confirmed by the Tribunal should be set aside on the ground that neither of these two authorities bad jurisdiction to determine the question as to whether the grant was a hereditary one or for the life of the petitioner. The jurisdiction to decide that question being exclusively with the State Government the only thing that could have been done, by the Deputy Collector was to stay the hearing of the application and refer the question to the State Government for its decision. Therefore, he urged that the orders of the Deputy Collector and the Tribunal were without jurisdiction and he was, entitled to a writ ofcertiorai quashing those orders. But it is admitted by Mr. Amin that the question of jurisdiction was never raised either before the Deputy Collector or the Tribunal. It is well-settled that before such a question of jurisdiction is raised in a petition for certiorari, an objection as to the jurisdiction must be taken before the tribunal whose order is challenged. That principle is based On two grounds, (1) that the High Court is entitled to know what the tribunal has to say about it, and (2) that the tribunal which is brought on record before the High Court must be given an opportunity to decide the question whether it has jurisdiction or not before the High Court is called upon to give its decision on the question of jurisdiction. If any authority is required, for this proportion it is to be found in Gandhinagar Motor Transport Society v. State of Bombay : AIR1954Bom202 where Mr. Amin himself appearing for the State Government had urged this point and had succeeded. On this ground also, Mr. Amin would not be entitled to attack these orders on the ground of want of jurisdiction, either in the Deputy Collector or the Revenue Tribunal.

For the reasons aforesaid, the petition must fail and has to be rejected. Rule discharged with costs. Rule discharged.


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