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Maharana Bhagwat Singhji Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 164 of 1961
Judge
Reported inAIR1963Raj22; [1962(5)FLR8]; (1962)ILLJ609Raj
ActsCode of Civil Procedure (CPC) , 1908 - Sections 86 and 87B; Constitution of India - Articles 245 and 246; Industrial Disputes Act - Sections 7; Rajasthan Industrial Tribunal (Constitution and Proceedings) Validating Act, 1959
AppellantMaharana Bhagwat Singhji
RespondentState of Rajasthan and ors.
Appellant Advocate S.K. Jindal, Adv.
Respondent Advocate Kan Singh, Adv.
DispositionPetition dismissed
Cases ReferredVascongada (Compania Naviera) v. Steamship
Excerpt:
- - the foundation for the application to set aside the writ and arrest of the ship is to be found in two propositions of international law engrafted into our domestic law which seem to me to be well established and to be beyond dispute. in this country it is in my opinion well settled that it applies to both. there is no necessity to embark on a general discussion as to what further immunities are available to a ruler of a foreign state for to the ruler of an indian state the law has only granted such immunities as are contained in section 85 and sub-sections 1 and 3 of section 86. it may be that by applying international law a ruler of a foreign state may be held entitled to other immunities of like nature in respect of other proceedings......first objection was that in view of the provisions of section 87b read with section 86 of the code of civil procedure the reference was not tenable without the previous consent of the central government. the second objection was that on the date when the reference was made no industrial tribunal was constituted under the amended act as held by this court in the unreported case in civil writ petn. no. 107 of 1958 -- nundra metal works private ltd., bikaner v. state of rajasthan, d/- 30-3-1959 (raj) and no fresh reference was made after the tribunal was constituted in accordance with law. we need not set out the other objections taken as the tribunal has so far decided only these two objections against the petitioner and is yet to decide the other objections.2. in this writ petition.....
Judgment:

Bhandari, J.

1. This is a writ petition under Article 226 of the Constitution on behalf of His Highness Shri Bhagwat Singhji, Ruler of Mewar, and arises under the following circumstances:

On the demise of his father, late His Highness Maharana Bhopal Singhji, who was the Maharaj Pramukh of Rajasthan, the petitioner discharged certain employees of the Motor Garage as they became surplus on account of the office of the Maharaj Pramukh being abolished on the death of his father. Thereupon these employees claimed compensation for retrenchment and made a representation through the Motor (Workers) Mazdoor Union Udaipur (Respondent No. 3 in the Writ petition) to the Rajasthan Government (Respondent No. 1) which by Notification No. F9(15)Lab./57, dated Jaipur the 18th of December 1957 made a reference to the Industrial Tribunal, Rajasthan, Jaipur (Respondent No. 2) for adjudication of the dispute. The petitioner took several objections to the maintainability of the reference.

The first objection was that in view of the provisions of Section 87B read with Section 86 of the Code of Civil Procedure the reference was not tenable without the previous consent of the Central Government. The second objection was that on the date when the reference was made no Industrial Tribunal was constituted under the amended Act as held by this Court in the unreported case in Civil Writ Petn. No. 107 of 1958 -- Nundra Metal Works Private Ltd., Bikaner v. State of Rajasthan, D/- 30-3-1959 (Raj) and no fresh reference was made after the Tribunal was constituted in accordance with law. We need not set out the other objections taken as the Tribunal has so far decided only these two objections against the petitioner and is yet to decide the other objections.

2. In this Writ petition it is urged that in deciding both these objections the Tribunal had committed errors apparent on the face of the record and that on a correct interpretation of law on both these matters the Tribunal is not competent to entertain and decide the matter and therefore by Writ of Prohibition the Tribunal should be directed from proceeding further in adjudicating the dispute referred to it. This Writ petition is contested on behalf of Respondents Nos. 1 and 2 and it is contended that the findings of the Tribunal on these points are correct.

3. The first question that requires determination in this Writ petition is whether the Industrial Tribunal is incompetent to proceed to adjudicate into the matter referred to it on account of the provisions of Section 87B, C. P. C. It is not in dispute that (he petitioner is a ruler of the former Indian State. He is entitled to invoke the privileges contained in Sub-sections (1) and (3) of Section 86 which are available to a ruler of a foreign State. The relevant provisions of Section 86 are, as follows:

'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.

* * * * *(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.'

* * * * * The contention on behalf of' Respondents Nos. 1and 2 which has been accepted by the IndustrialTribunal is that the petitioner is not being suedin any court, and, as such, he cannot claim theprivilege contained in Section 86(1). The Tribunalhas held that the words 'may be sued' read withthe words 'competent to try the suit' mean thatSection 86(1) is applicable when a suit is filedagainst a ruler and not to any other proceeding.It also took the view that the Industrial Tribunalis not a court within the meaning of Section 86.

The petitioner has challenged this interpretation of the Tribunal. It is urged that the word 'sue' means taking any legal proceeding against a person and it cannot be confined only to the filing of a suit. Reliance in this connection is placed on the observations of Mahajan, J. in Province of Bombay v. Khushaldas S. Advani and Co., AIR 1950 SC 222. No doubt as observed by Mahajan, J. in that case, the expression 'sue' means 'the enforcement of a claim or a civil right by means of legal proceedings', yet in the context in which this word has been used, it means taking any legal proceeding in accordance with the provisions of the Code of Civil Procedure. It is to be kept in view that Section 86 is a provision of the Civil Procedure Code and is to be read along with the other provisions of the Code. The Code deals with suits, executions, appeals and other incidental matters. Under Section 26 a suit is to be instituted by the presentation of a plaint or in such other manner as may be prescribed. Thus, when the words 'may be sued' have been used in Section 86(1) they refer to the proceedings for enforcement of a legal right as contemplated under the provisions of the Code of Civil Procedure.

As pointed out by the Tribunal, this is further made clear when it is mentioned that the ruler of a foreign state cannot be sued in any court otherwise competent to try the suit. Sub-section (2) to Section 86 further says that the consent of the Central Government may be given in respect to 'a specified suit'. Sub-section (3) also says that a Ruler shall not be arrested under 'the provisions of the Civil Procedure Code' and except with the consent of the Central Government no decree shall be executed against the property of the ruler of a foreign state. It is, therefore, difficult to divorce Section 86 and Section 87B from its context and to say that immunities available to the ruler of a foreign state extend to all legal proceedings taken against him. We are therefore of the opinion that the Tribunal has committed no error of law in thus interpreting the words 'may be sued' in Section 86.

4. Nor do we find that the Tribunal has committed any error of law in holding that the Industrial Tribunal is not a court within the meaning of Section 86. Learned counsel for the petitioner has drawn our attention to the provisions in the Industrial Disputes Act showing the manner in which the Tribunal is to exercise its jurisdiction and adjudicate the matter and from this it is argued that in all essentials the Tribunal is a Court. But as pointed out by M. Hidayatullah, J. in Harinagar Sugar Mills Ltd. v. Shyam Sunder, AIR 1961 SC 1669 at p. 1680.

'By 'Courts' is meant Courts of Civil Judicature and by 'tribunals', those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State, and is aptly called the judicial power of the State.'

We are conscious of the fact that in that case Hidayatullah, J. was in minority but he was in minority on the point whether the Central Government exercising appellate powers under Section 111 of the Companies Act is a Tribunal exercising judicial functions or not. Hidayatullah, J. took the view that it was not so, while the majority held that it was judicial tribunal subject to the appellate jurisdiction of the Supreme Court under Article 136 of the Constitution. So far as the distinction between a court and a tribunal is concerned, the observations of Hidayatullah, J. are to be treated with due respect by this Court.

We may also point out that their Lordships of the Privy Council interpreted the word 'courts' in Section 17, C. P. C. as meaning courts to which the Code of Civil Procedure applies. Reference may be made to Raja Sctrucharlu Ramabhadra v. Maharaja of Jeypore, 1919 PC 150.

5. It has been argued before us that Section 86 is based on the principles of International Law which grant immunities to foreign sovereigns and this section should not be narrowly construed so as to restrict the immunities for proceedings taken under the provisions of the Code of Civil Procedure. This is no doubt true. The principles of International Law on this subject may be taken from the judgment of Lord Atkin in Vascongada (Compania Naviera) v. Steamship 'Cristina', 1938 AC 485 at p. 490 wherein he has observed, as follows:

'The foundation for the application to set aside the writ and arrest of the ship is to be found in two propositions of international law engrafted into our domestic law which seem to me to be well established and to be beyond dispute. The first is that the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from his specific property or damages.'

'The second is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control. There has been some difference in the practice of nations as to possible limitations of this secondprinciple as to whether it extends to property only used for the commercial purposes of the sovereign or to personal private property. In this country it is in my opinion well settled that it applies to both.'

The immunities referred to in the observations above have been granted to a ruler of a foreign state under Section 86 to a limited extent inasmuch as a suit against a ruler of a foreign state may be filed with the consent of the Central Government and proceedings in execution may be taken also with the consent of the Central Government. We are not called upon to decide how far the immunities referred to in the observations of Lord Atkin may be available to a ruler of a foreign state with respect to other proceedings on the principles of international law. There is no necessity to embark on a general discussion as to what further immunities are available to a ruler of a foreign State for to the ruler of an Indian State the law has only granted such immunities as are contained in Section 85 and Sub-sections 1 and 3 of Section 86. It may be that by applying international law a ruler of a foreign state may be held entitled to other immunities of like nature in respect of other proceedings. But the same is no consideration for construing Section 86 in a wider sense going so far as to treat the provision embodied in the Civil Procedure Code an entirely independent provision available to foreign Ruler in all proceedings of whatever nature.

6. We are, therefore, of the opinion that the petitioner is not entitled to the relief that the proceedings against him before the Industrial Tribunal should not proceed on the ground that it will be an infringement of Section 87B of the Code of Civil Procedure.

7. Coming to the second contention, it is not claimed that the constitution of the Industrial Tribunal as at present is not legal. It is a legally constituted Industrial Tribunal which is proceeding to adjudicate the disputes referred to it by the Rajasthan Government and we do not think that any fresh reference to this Tribunal is necessary in these circumstances.

Moreover, the Rajasthan Industrial Tribunal (Constitution and Proceedings) Validating Act, 1959, which received the assent of the President, has validated the reference made to and all proceedings taken by the Industrial Tribunal which was constituted under Section 7 of the Industrial Disputes Act, 1947, by enacting that such references should be deemed to have been made as if the said Tribunal were constituted under Section 7A of the said Act. The subject of industrial and labour disputes falls within the Third List -- Concurrent List -- of the 7th Schedule of the Constitution and the State Legislature was competent to enact the Rajasthan Industrial Tribunal (Constitution and Proceedings) Validating Act, 1959. It has received the assent of the President and must prevail over the provisions of the Industrial Disputes Act in the State of Rajasthan.

8. It was also argued before us that the Tribunal has no jurisdiction to proceed with the matter as there was no industrial dispute before it. The point whether the matter before the Tribunal constitutes industrial dispute or not has not been decided by the Tribunal and the Tribunal has framed adefinite issue on this point which shall be decided in due course. If the decision goes against the petitioner, he may, if so advised, then come to this court for redress.

9. The present Writ petition has got no force and is dismissed with costs.


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