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Joginder Sen Vs. the Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberFirst Appeal No. 3 of 1961
Judge
Reported inAIR1967HP6
ActsConstitution of India - Articles 1, 3 and 363(1)
AppellantJoginder Sen
RespondentThe Union of India (Uoi)
Appellant Advocate Dinanath, Adv.
Respondent Advocate Jai Chand, Govt. Adv.
DispositionAppeal dismissed
Cases ReferredPratapsinhji v. State of Bombay
Excerpt:
.....petitioner for starting and housing private dairy farm - suit land considered private and personal private property of petitioner and remained in his possession after merger of former state with existing state - construction stated on suit land by respondent without paying any compensation to petitioner on ground that suit land was not private land of petitioner - appeal before senior subordinate judge - senior subordinate judge held that dispute related to in interpretation of article 3 of agreement of merger and court were barred from taking cognizance of dispute under article 363 - appeal - consequence of cessation of territory of former state to dominion of india was that any inhabitant of territory can only make good in municipal courts of dominion of india - after cessation of..........any dispute arises as to whether any item of property is the private property of the raja or state property, it shall be referred to such officer with judicial experience as the dominion government may nominate and the decision of that officer shall be final and binding on both parties.'9. it appears that in pursuance of this article, the plaintiff had furnished the required inventory. the dominion government accepted certain properties to be the private properties of the plaintiff. those were given in the note of acceptance, copy ex. db, which formed part of the agreement of merger. it clear that if a dispute arises, between the plaintiff and the government, as to whether a certain item of property is the private property of the plaintiff, the decision of the dispute will.....
Judgment:

1. This appeal, by the plaintiff, against a decree and judgment of the learned Senior Subordinate Judge, Mandi has arisen out of a suit, for possession of land, measuring 7 bighas 10 biswas and 1 biswansi, comprised in Khasra Nos. 5, 6 and 43/34, situated in village Bhangauhli, a suburb of Mandi Town, in Tehsil Sadar, District Mandi, after demolishing the buildings, standing thereon, or in the alternative for the recovery of Rs. 25,050/ as value of the land. The suit was founded on the following allegations:

2. The plaintiff was the Ruler of Mandi State, now merged in Himachal Pradesh. since 1st May, 1948. The land, in suit, was acquired by the plaintiff, in 1946, from its former owners, for his personal requirement for starling and housing a private dairy farm The land was considered as a part of the Bijai Palace Estate, the personal and private property of the plaintiff. The land remained in possession of the plaintiff even after the merger of Mandi State with Himachal Pradesh

3. In February 1955, it was discovered by the plaintiff's agent and private secretary that the Government P.W.D. Contractors, under the orders of the Government officers, had Illegally entered upon the Mand and had begun to collect building materials for starting construction on the land. The plaintiff's private secretary approached the Executive Engineer. Mandi, asking him not to proceed with the construction work, unless the matter was settled with the plaintiff The Executive Engineer, Mandi and the Deputy Commissioner, Mandi had assured the private secretary that due compensation, under the law, would be paid for the land. But later on, the authorities backed out of their promise to pay the compensation. The Superintending Engineer, 1st Circle, Himachal Pradesh P.W.D. informed the plain tiff's private secretary, on the 28th January, 1958 that no compensation would be paid to the plaintiff until and unless his title to the land was decided by the Government of India. In the meanwhile, several buildings were constructed upon the land, despite repeated protests from the plaintiff's private secretary. Having failed to get the matter settled, the plaintiff, on the 23rd June 1958, served a notice, under Section 80 of the Code of Civil Procedure, on the Secretary, Ministry of Home Affairs The plaintiff was informed by the Chief Secretary, Himachal Pradesh, on the 30th October, 1959, that the Government of India regretted their inability to concede that the land in suit was the private property of the plaintiff. There upon, the plaintiff instituted the suit, against the Union of India, praying for possession of land and Rs. 5000/- as damages, for taking illegal and forcible possession, by the officers of the defendant, or in the alternative for the recovery of compensation of Rs. 25,050 as the value of the land and interest at the rate of 6 per cent per annum, from February 1955.

4. The suit was contested by the Union of India. The written statement was filed on 12th September 1960. It was, later on, got amended. The Union of India denied that the land, in suit, was the personal and private property of the plaintiff or that it formed part of Bijai Palace Estate. It was pleaded that the land was purchased, by the erstwhile Mandi State, for constructing a State dairy farm and belonged to the State. It was, further, plead ed that after merger of the Mandi State, the land belonged and was in possession of the Union of India. It was denied that the Deputy Commissioner, or any other officer of the Government, had admitted to pay compensation for the land to the plaintiff. It was pleaded that even if it be proved that some officer had made some such admission, the admission was erroneous and unauthorised and was not binding on the Union of India. The right of the plaintiff to get possession or the value of the land was denied. A preliminary objection, against the maintainability of the suit, was also taken up. It was pleaded that the dispute between the parties related to the interpretation of, and arose out of, the provision contained in Art. 3 of the Agreement of Merger, made between the Governor General of the Dominion of India and the plaintiff, on the 18th April 1948, and the inventory of the immovable property, recognized in pursuance of the said Article by the Government of India, as the private property of the plaintiff, and that such a dispute was barred from cognizance of the Courts, under Art. 363 of the Constitution and the plaintiff's suit was, therefore, not maintainable

5. The preliminary objection raised on behalf of the Union of India prevailed with the learned Senior Subordinate Judge. He held that the dispute in the suit related to the interpretation of Art. 3 of the Agreement of Merger and that Courts were barred from taking cognizance of the dispute under Art. 363 of the Constitution of India. As a result of this finding, tile learned Senior Subordinate Judge dismissed the suit, without going into the merits of the claim of the plaintiff.

6. The plaintiff has come up in appeal. The only contention urged on behalf of the plaintiff was that the dispute, in the suit, had not arisen out of any provision of the Agreement of Merger and the jurisdiction of the Courts to hear the dispute was not barred, under Art. 368 of the Constitution of India. The argument was that the plaintiff was enforcing his claim, qua his private property, as a private citizen of India, and that this claim was not in any way related to the Agreement of Merger. The contention, raised on behalf of the plaintiff, lacks merit. Ex DA is copy of the Agreement of Merger. Article 1 of the Agreement reads:

'The Raja of Mandi hereby cedes to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State and agrees to transfer the administration of the State to the Dominion Government on the First day of May, 1948, (hereinafter referred to as 'the said day')

As from the said day the Dominion Government will be competent to exercise the said powers, authority and jurisdiction in such manner and through such agency as it may think fit.'

7. One of the consequences of cession of the territory of Mandi State to the Dominion Government, as was done by Article I of the Agreement of Merger. was that any inhabitant of the territory could only make good, in the municipal Courts, established by the Dominion Government, such rights as the Dominion Government had duly recognized through its officers. Reference, in this connection, may be made to Nayak Vajesingji Joravarsingji v. Secy. of State for India in Council, AIR 1924 PC 216. The principle enunciated by their Lordships of the Privy Council has been approved by the Hon'ble Supreme Court in several cases, the latest being State of Gujrat v. Vora Fiddali Badruddin Mithibarwala. AIR 1964 SC 1043

8. According to the above principle, the plaintiff, after cession of the territory of Mandi State, to the Dominion Government, on the basis of the Agreement of Merger, could enforce, in Courts, only those rights, whether as a Ruler or as a private citizen, against the Dominion Government, or its successor, which had been recognized by the Dominion Government by agreement, legislation or otherwise. The jurisdiction of the Courts to take cognizance of the rights, against the Dominion Government, or its successor, which had not been recognized, by the Dominion Government, was barred. Article 3 of the Agreement of Merger laid down the manner in which the Dominion Government was to recognise and accept the properties as private properties of the plaintiff. The relevant portion of this Article reads:

'The Raja will furnish to the Dominion Government before the 7th day of May 1948 an inventory of all the immovable property, securities and cash balances held by him as such private property.

'If any dispute arises as to whether any item of property is the private property of the Raja or State property, it shall be referred to such officer with judicial experience as the Dominion Government may nominate and the decision of that officer shall be final and binding on both parties.'

9. It appears that in pursuance of this Article, the plaintiff had furnished the required inventory. The Dominion Government accepted certain properties to be the private properties of the plaintiff. Those were given in the note of Acceptance, copy Ex. DB, which formed part of the Agreement of Merger. It clear that if a dispute arises, between the plaintiff and the Government, as to whether a certain item of property is the private property of the plaintiff, the decision of the dispute will inevitably involve a reference to, and the interpretation of, the Agreement of Merger and the Note of Acceptance. Such a dispute will relate to, and arise out of, the provisions of the Agreement of Merger and will be covered by Article 363 (1) of the Constitution.

10. In the present case, the claim of the plaintiff, against the Government, is that land measuring 7 bighas 10 biswas and 1 biswansi comprised in Khasra Nos. 5, 6 and 43/34, situated in village Bhangauhli, forms part of Bijai Palace Estate and is his private property. The plea, on behalf of the Government, is that the land, in suit, does not form part of the Bijai Palace Estate and is not the private property of the plaintiff Bijai Palace, along with the Annexe Cottage, servant quarters and palace gardens, was recognized, by the Government, as private property of the plaintiff, vide Serial No. 1 of the Note of Acceptance Bijai Palace is situated in Mandi Town. The land, in suit, was not situated in Mandi Town but was situated in Bhangauhli village. The Khasra Nos. of the land in suit were different from the Khasra No of Bijai Palace. The decision of the dispute, between the plaintiff and the Government, whether the land, in suit, formed part of Bijai Palace Estate, and whether it was the private property of the plaintiff, involves directly the interpretation of the Agreement of Merger and the Note of Acceptance. It follows that the dispute, between the parties arises out of the Agreement of Merger and is covered by Article 363 (1) of the Constitution. The jurisdiction of the Courts to take cognizance of such a dispute is barred. It was observed in Pravir Chandra Bhanj Deo Kakatiya V. State of Madhya Pradesh, AIR 1953 Nag 86 (FB), that in view of the provisions of Article 363 (1) of the Constitution, any dispute arising out of an Agreement of Merger is beyond the competence of the Court to inquire into. The view was affirmed, on appeal, by their Lordships of the Supreme Court, in Pravir Chandra Bhanj Deo v. State of Madhya Pradesh, AIR 1961 SC 775. The facts in Maharaj Umeg Singh v. State of Bombay, (S) AIR 1965 SC 540. were that Rulers of certain erstwhile States which had merged in Bombay State had executed Agreements of Merger in favour of the Government. Letters of Guarantee were, subsequently,executed by the Government in favour of the Rulers. Those letters formed part of the Agreements of Merger. Clause (5) of the letters guaranteed the enjoyment of ownership of lands, jagirs, grants, pensions etc. The Legislature of the State of Bombay passed the Bombay Merged Territories Areas (Jagirs Abolition) Act 1958 for abolishing jagirs. The petitioners, who were jagirdars and the relations of the Rulers filed petitions, under Article 32 of the Constitution challenging the vires of the above Act. The petitioners relied upon Clause (5) of the Letters of Guarantee and alleged that the above Act infringed their rights under that clause. It was held that the claim of the petitioners was to enforce their rights under the Letters of Guarantee and that the dispute wag clearly in respect of the agreements of Merger and the Letters of Guarantee and was covered by Article 363 (1) of the Constitution.

11.The authorities cited by the learned counsel for the plaintiff are distinguishable inasmuch as, disputes, in those authorities, had not arisen out of any Covenant or the Agreement of Merger. The facts in Bholanath J. Thaker v. State of Saurashtra, AIR 1954 SC 880,were that the appellant was serving the erstwhile Wadhwan State as a civil servant. The age of superannuation, under a law, in force in that State, was 60 years. The Rulers of the Kathiawar States, including the Wadhwan State, had entered into a Covenant for the formation of the United States of Kathiawar on the 4th January 1948 Article 16(1) of the Covenant provided that permanent members of public services of each of the covenanting States would be continued in service on conditions which would not be less advantageous than those on which they were serving before The Ruler of the Wadhwan State had made over the administration of the State to the Saurashtra Government on the 16th March 1948. The Saurashtra Government had. on the 29th June 1948, retired the appellant on the ground that he had passed the age of superannuation which was taken as 55 years The appellant brought a suit against the Saurashtra State, claiming a sum of Rs. 20,000 as compensation, for his premature compulsory retirement, alleging that under the law in force in Wadhwan State, which was continued in force, he was entitled to continue in service upto 60 years The appellant had referred to the provisions of Article 16 (1) of the Covenant One of the grounds on which the suit was resisted, by the Saurashtra State, was that the dispute had arisen out of the Covenant and the Court was not competent to entertain the dispute. This contention was rejected by the Hon'ble Supreme Court It was held that there was no dispute arising out of the Covenant and what the appellant was doing was merely to enforce his rights under the existing laws which continued in force until they were repealed by appropriate legislation. AIR 1954 SC 680 was referred to in Lachman Dass v. State of Punjab, AIR 1963 SC 222. It was observed that the dispute in the aforesaid case related to a right which had arisen independent of the Covenant and there-fore Article 363 of the Constitution had no application. In Jagannath Behera v. Raja Harihar Singh Maharaj Bhramarbara Roy, AIR 1958 SC 239, the ex-Ruler of the merged Orissa State of Khandapara had evicted the appellants who were in occupation of the land declare to be private properties of the ex-Ruler under the Agreement of Merger and had inducted other persons as tenants. The evicted appellants had applied to the Revenue Officer for being restored to possession under the provisions of the Orissa Tenants Protection Act, 1948. It was contended, on behalf of the ex-Ruler, that the dispute between the parties had arisen out of the provisions of the Agreement of Merger which had guaranteed to him the full ownership, use and enjoyment of the property and that by virtue of the provisions of Article 363 of the Constitution, the Revenue Officer had no jurisdiction in the dispute. This contention was repelled by their Lordships of the Supreme Court with the following observations:

'It is clear therefore, that neither Article 363 nor Article 362 of the Constitution would avail the respondent and the Courts would have jurisdiction to entertain the dispute between the appellants and him which arose out of his action in ejecting them from his private lands. The provisions of the said Agreement only protected his rights in the properties declared to be his private properties so that they could not be claimed at any time thereafter as State properties. '

12. In the instant case, the Union of India claims that the land in suit is Government property and is not the private property of the plaintiff. The dispute, between the parties, direcctly arises out of the provisions of the Agreement of Merger, and the Note of Acceptance which had recognised certain properties to be the private properties of the plaintiff.

13. The dispute in Thakore Saheb Khanji Kashari Khanji v. Gulam Rasul Chandbhai, (S) AIR 1955 Bom 449. was that a private person, who had obtained a money-decree against a former Ruler of a State, had sought to execute it by appointment of a receiver. The dispute had nothing to do with the Agreement of Merger and was not covered by Article 363 of the Constitution The question in Pratapsinhji v. State of Bombay, (S) AIR 1957 Bom 155, was whether there was a debt, due by the Estate of a former Ruler, who had entered into an Agreement of Merger. to the Saurashtra Government. The question did not in any way relate to the Agreement of Merger

14. In conclusion, it is held that the dispute, between the parties to the present suit, whether the land in suit was the private property of the plaintiff or was Government property, had arisen out of Article 3 of the Agreement of Merger read with the Note of Acceptance, and under the provisions of Article 368 (1) of the Constitution, the jurisdiction of the Courts to inquire into such a dispute was barred. The appeal fails and is dismissed.

15. The suit of the plaintiff was dismissed On a preliminary objection. The learned SeniorSubordinate Judge had ordered the parties tobear their own costs. The parties will beartheir own costs in the appeal as well.


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