judgement:
: Criminal Appeal No 572 of 1981.
From the Judgment and Order dated 26.8.1980 of the Patna High Court in Criminal Appeal No. 15 of 1976.
Ranjit Kumar for the Appellants.
D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by PUNCHHI, J.
This appeal by special leave is against the judgment 609 and order of the High Court at Patna dated August 26, 1980 passed in Criminal Appeal No 15 of 1976.
The facts giving rise to this appeal are that a dacoity took place at about midnight on the night intervening 5th 6th April, 1970 in the house of Dhaniram Singh, P.W.11, in village Awadhiya.
According to the prosecution 25 to 30 persons armed with guns, lathis, bhalas and gharasa etc.
committed the dacoity and apart from looting away belongings of Dhaniram Singh, his uncle Khobari Singh was shot dead and as many as 8 persons including Dhaniram Singh P.W.11 re ceived injuries.
The First Information Report was lodged by Dhaniram Singh, P.W.11, at 6.30 a.m. on April 6, 1970 at police station, Bhabhua at a distance of about 7 miles from the place of the occurrence.
In it he could name 7 persons specifically as being members of the gang of dacoits.
The remaining dacoits were left unnamed.
The investigating agency when set into motion took steps as necessary.
But at this stage, it would be sufficient to mention that neither could the investigation recover the looted property valued by the concerned P.Ws.
at about Rs. 8,000 nor could it get the particulars of a large number of other participants in the dacoity.
When the matter went to triaL before the First Additional Sessions Judge, Arrah, against the 6 named per sons and one other, the old Criminal Procedure of 1898 governed the trial and before hand there were commitment proceedings before a Magistrate in which evidence was recorded.
At the commitment stage, 10 persons were put to face the enquiry.
One accused named Kanhaiya Singh in the meantime died.
Two other accused Sukhari Singh and Gulab Gosain also died.
There remained 6 of the original accused named in the F.I.R. and one more, Ram Naresh Singh, not so named to face trial and bear the conviction.
The Learned Additional Sessions Judge convicted all the 7 accused under Section 396 I.P.C. and imposed on them a sentence of life imprisonment.
On appeal to the High Court two of them namely Ram Naresh Singh the one unnamed in the F.I.R. and Charittar Ahir, one of the so named, were acquitted but the convic tions of Munni Singh, Fekoo Singh, Behari Singh, Dadan Singh and Guput Singh, the appellants herein, were maintained.
The appellants are residents of village Awadhiya where the occurrence took place.
The victims of the crime and other prosecution witnesses are also from Awadhiya.
The village appears to be a small one consisting only of 26 27 houses comprising of various castes like Brahmins, Rajputs, 610 Kahars, Ahirs and Kurmis.
This is what Hira Singh, P.W.2 has deposed at the trial.
The first informant suggested that there was a simmering discontent between his family and the family of Sukhari Singh accused.
Munni Singh, appellant is the son of Sukhari Singh, Fekoo Singh and Behari Singh, appellants are the nephews of Sukhari Singh and Guput Singh, appellants, is the brother of Sukhari Singh.
Thus they are closely related.
There was a pond measuring about 3 acres in the village, which Sukhari Singh claimed, had been bestowed on him by the erstwhile Zamindar before the coming into force of the Zamindari Abolition Act.
He had taken control of the Tank but some time before the occurrence had sown "singhara" in it and had prevented people to let their cattle come there to drink water from it.
The Panchayat of the village when approached had taken note of it and had 3/4 days prior to the occurrence suggested to Sukhari Singh that he should rather surrender the Tank in the name of the Shiva Temple.
But, he had correspondingly suggested to the Pan chayat that the place constructed and occupied by the com plainant party Khobari Singh and others for tying their cattle at the bank of the pond, which was part of unsettled lands, should also be likewise given to the shiva Temple.
The Panchayat was not agreeable to the counter suggestion because the possession and usage of that land by Khobari Singh was very old.
With such grudge in mind, it is the case of the prosecution, that the assault was masterminded and made at the house of the complainant with the sole purpose to avenge and to commit dacoity.
The details of the occurrence are provided by Dhaniram Singh, P.W.11, the first informant.
He stated that on the day of the occurrence he was in his village having come on a month 's leave from his posting as a Weapon Senior Engineer in District Kanpur.
On the night of the incident, three cots lay spread in the outer courtyard of their house.
He was sleeping on one of them, and on the remaining two individu ally were his cousin Baliram Singh, P.W.3, and his uncle Khobari Singh (deceased).
He was awaken by some noise as if some persons were coming.
He stood up and switched on his five cell torch and saw 20 25 dacoits armed with lathis, bhallas, Garasas, and guns coming towards his house.
On his focussing the torch they stopped.
Then the dacoits also switched on their torches.
Dhaniram Singh then claims that he recognised in the torch light the accused inclusive of 5 appellants.
Munni Singh and Fekoo, appellants had guns and the remaining 5 had some other arms.
Sukhari Singh shouted kill kill.
Munni Singh then fired with his gun towards Dhaniram Singh but 611 he rolled down and by the fall hurt himself on the thigh and the gun fire did not hit him.
Then he got up and started running.
One of the dacoits hit him with a stick with an iron ring.
There was some oozing of blood but it was not profuse.
He ran for about 30 steps to get to his wheat field, which was about 2 to 3 feet below the level of his courtyard.
From there he claims to have seen the remaining part of the occurrence.
He saw that when his uncle Khobari Singh had been awakened Munni Singh appellant fired at him and he fell down.
Other dacoits who were near him started hitting him with spears.
One of the dacoits held a ladder in his hand, through which he climbed up to the roof of the inner house, from where he jumped into the female apartment and opened the outer door.
Then the dacoits entered the house and started looting and plundering.
Two dacoits scold ed his brother Baliram, P.W.3 to keep lying down on his cot.
In the occurrence, however, Baliram Singh. P.W.3, received no injury.
The dacoits were active for about 15 to 20 minutes.
On hearing the noise and commotion, other villag ers then started collecting.
The dacoits then decamped with the looted goods.
Some of the villagers followed them to some distance but the dacoits kept firing on them.
With the result that some of them were injured.
Khobari Singh and other injured persons were removed to be taken to the hospi tal but Khobari Singh died on the way and then Dhaniram Singh proceeded to the Police Station, Bhabua, taking the dead body of his uncle with him where the Office in charge, P.W.12 Ram Nagad Tiwari, recorded his statement at 6.30 a.m. on 6.4.1970.
Shri Tiwari went to the spot and saw the evi dence of dacoity in the form of things lying scattered and some of the articles left behind by the dacoits.
He had the injured persons examined medically.
He arrested the accused persons.
Finally investigation was completed by another officer and the accused persons were put up for trial as mentioned earlier.
Before the High Court, as also here, it is admitted that there was commission of dacoity in the house of the first informant on the day as alleged, in which Khobari Singh was killed and others were injured.
It is also not disputed that the dacoity being a conjoint act all persons participating in the crime would be equally liable for the killing of Khobari Singh.
Thus the only exercise before the High Court, as also here, is to determine who were the persons who took part in the commission of the dacoity.
It is note worthy that prosecution had four sets of witnesses 612 which could establish identity of the dacoity.
Three sets became redundant and only on the basis of one set was iden tity of the appellants established.
The first set consisted of three injured persons Ramadar Singh, Dinanath Singh and Dhirja Singh who were not examined at the trial by the prosecution.
This set did not help the prosecution at all.
The second set consisted of the evidence of Baliram Singh, P.W.3 Rambali Singh, P.W.4 and Jhuri Singh P. W. 9 .The names of P.Ws 4 and 9 were not mentioned in the F.I.R. and their evidence was left out of consideration by the Trial Judge as well as the High Court.
Even the statement of P.W.3 was left aside by the High Court.
So this set too did not further the prosecution case.
In the third set was the evidence of P.W.1 Bishwanath Chaubey, P.W. 5 Jokhan Bind and P.W. 8 Chirkut Singh who did not identify any of the da coits.
None of these witnesses was declared hostile.
Thus their evidence rather goes adverse to the prosecution.
The fourth set consisted of evidence of P.W.2 Hira Singh and P.W.11 Dhaniram Singh whose evidence has been relied upon by the High Court to identify the 5 appellants and on the basis of the very same evidence two co accused, that is, Ram Naresh Singh and Charittar Ahir were acquitted because P.W. 2 named one and excluded the other and P.W.11 named the other one and excluded the former, giving rise to a doubt about the complicity of those two.
Thus we are left to see whether the conviction of the appellants can be based on the evidence of these eye witnesses P.Ws 2 and 11.
We have already given a condensed version of Dhaniram Singh, P.W.11.
Now according to the Hira Singh P.W.2, his house is 4 5 houses away from the house of the complainant and when he became awake on hearing the noise he went to see the occur rence taking a torch which kept lighting.
According to him he hid himself behind a Bahaya tree and from where he could keep watching the activities of the dacoits whose faces he saw.
As he says he could identify 8 dacoits.
These were Munni Singh, Fekoo Singh Dadan Singh, Guput Singh and Behari Singh appellants as respectively armed.
In addition there were Sukhari Singh (since deceased), Ram Naresh Singh and Kanhiya Singh who are no longer in the picture.
After the departure of the dacoits he went close to the scene and found Khobari Singh to have been hit by gun shots and that his condition at that time was serious.
Then he went in the company of P.W. 11 firstly towards the hospital and then to the police Station.
According to this witness though he focussed the torch for 3 or 4 minutes before he went in hiding, the focus did not fall on the faces of the dacoits and after having gone in hiding he 613 had not lit his torch.
Yet he claims that he had identified the dacoits in the torch light.
He is also certain that no dacoit had muffled his face.
The appellants, according to him, had painted their faces but were not in a position to conceal their identity.
He admitted that 3 or 4 day prior to the incident, a Panchayat had been convened in which Sukhari Singh was asked to surrender the Tank but he said he would if Khobari Singh demolishes and surrenders the house built on the bank of the Tank first.
And further that when the Panchayat told Sukhari Singh that the house having been there for a long time, could not be demolished and even Khobari Singh was not agreeable to do so, all were angry with the accused persons on account of the Tank.
So far as Dhaniram Singh, P.W.11 is concerned, he too admits about the convening of the Panchayat 3 or 4 days earlier on which acount Sukhari Singh had nursed an angry feeling due to the happenings in the Panchayat.
With regard to the actual ocurrence, P.W. 11 says that when the first shot aimed at him had not hit him, and the second shot had been fired at his uncle, he then ran 25 30 steps and hid himself in the field of the wheat crop and while running he heard the firing of the third shot.
At that juncture he claimed to have kept lighting his torch now and then from the place of his hiding to see what was happening.
The point which rises for consideration is whether P.Ws2 and 11 could individually, with the aid of their respective torches, identify the dacoits which were 25 30 in number and would the dacoits let them be identified by letting them switch on their torches off and on as claimed ? Would these two wit nesses not have attracted attention of the dacoits to be taken care of in priority in their place of hiding ? It seems to us that seeing the formidable force of the dacoits and their number these two P.Ws. would have been so non pulsed that they would not have dared to betray their presence by switching on and off their torches especially when they were unarmed and were no match to the might of the dacoits.
These two witnesses do not claim that they could identify the dacoits by means other than their torches.
This part of the story of the prosecution obviously does not inspire confidence.
It is also worthy of notice that P.W.11 was injured on the head before he ran for safety.
That was enough to shake and frighten him.
But before the receipt of such injury he claims to have switched on his torch first and to have seen in the first glimpse the appellants and others.
But his flash of the torch was met instantaneously with numerous torch flashes by the dacoits and it was like day light as said by P.W.1 Bishwanath Chaubey.
It is 614 difficult in this situation to believe P.W. 11 that he could in a split second have such a perception so as to identify all the five appellants and some others, It is obvious and natural that behind a lit torch darkness prevails hiding the identify of the torch bearer and persons situated close.
So identity of the dacoits was not possible by P.W.11 Moreover it is ununder standable that when the dacoits had chosen dark hours for committing the dacoity, obviously to take advantage of the darkness, and when they were 25 30 in number, most of them unknown persons, where was the need for the appellants to be in the forefront to risk themselves for identification.
This view we are entertaining apart from what the High Court has opined that muffling of faces and concealment of identify by dacoits is not universally parac tised.
Thus in the facts and circumstances of the case, we entertain a grave doubt about the participation of the appellants in the crime because of the failure of the prose cution to lead convincing evidence about the identity of the appellants as dacoits.
There is even no corroboration worth the name in the form of recovery of fire arms and other weapons, or of the looted articles from the appellants, so as to lend some assurance to the particpation of the appel lants in the cirme.
It may well be that the motive asserted by the prosecution relating to the dispute about the pond may have given cause to Dhaniram Singh, P.W.11 to assume that the appellants were responsible for the dacoity commit ted in his house and for Hira Singh P.W. 2, to entertain that belief in a sweep.
For the foregoing reasons, we find it difficult to sustain the conviction of the appellants.
Accordingly, they are acquited of the charge.
The appeal is accepted.

summary/full:
The appellants, the victims of the dacoity and other prosecution witnesses were residents of the village, where the crime took place in the house of P.W.11.
The accused were closely related.
P.W. 11 's cousin and uncle were P.W. 3 and the deceased, respectively, and P.W. 2 was also a close relative of P.W. 11.
There was a simmering discontent between the family of P.W. 11 and the family of the accused, Sukhari Singh.
The accused Sukhari Singh claimed that a pond was bestowed of him by the erstwhile Zamindar before the coming into force of the Zamindari Abolition Act.
As the tank was under the control of the accused, he prevented the cattle of the villagers from drinking water from it.
3/4 days prior to the occurrence of dacoity, the Pan chayat of the village suggested to the accused Sukhari Singh to surrender the tank in the name of a Shiva temple.
The accused suggested to the Panchayat the place constructed and occupied by the complainant party, (the deceased and his relatives) for tying their cattle on the unsettled lands at the bank of the pond also should be likewise given to the Shiva temple.
The Panchayat was not agreeable to the counter suggestion of the accused.
It was the case of the prosecution that the dacoity was mastermined and made at the house of the complainant with a sole purpose to avenge.
On the night intervening 5th 6th April, 1970 the P.W. 11, the first informant and his cousin, P.W.3 and his uncle, the deceased were sleeping 606 on the cots lay spread in the outer courtyard of their house.
P.W. 11 was awaken by some noise as if some persons were coming.
He stood up and switched on his five cell torch and saw 20 25 dacoits armed with lathis, bhallas, garasas, and guns coming towards his house.
On his focussing the torch they stopped.
Then the dacoits also switched on their torches.
P.W.11 recognised in the torch light the accused inclusive of 5 appellants.
Accused sukhari Singh shouted, "kill kill." Accused Munni Singh fired with his gun at P. W. 11 but the gun fire did not his him.
While P.W. 11 was running, one of the dacoits hit him with a stick with an iron ring.
There was some oozing of blood but it was not profuse.
He ran for about 30 steps to get to his wheat field, which was about 2 to 3 feet below the level of his courtyard.
From there he saw the remaining part of the occurrence.
P.W. 11 's uncle was shot by the accused Munni Singh and he fell down Other dacoits who were near him started hitting him with spears.
One of the dacoits held a ladder in his hand, through which he climbed up to the roof of the inner house, from where he jumped into the female apartment and opened the outer door.
Then the dacoits entered the house and started looting and plundering.
Two dacoits scolded his cousin P.W. 3 to keep lying down on his cot.
In the occurrence, P.W.3 received no injury.
The dacoits were active for about 15 to 20 minutes.
On hearing the noise and commotion of the vil lagers, the dacoits decamped with the looted goods.
Some of the villagers followed them to some distance but the dacoits kept firing on them.
With the result that some of them were injured.
P.W. 11 's uncle and other injured persons were removed to be taken to the hospital, but P.W. 's uncle died on the way.
Then P.W.11 proceeded to the Police Station, taking the dead body of his uncle with him, and lodged F.I.R. P.W.12 went to the spot and saw the evidence of dacoity in the form of thing lying scattered and some of the articles left behind by the dacoits.
He had the injured persons examined medically.
He arrested the accused persons Finally investigation was completed by another officer and the accused persons were put up for trial.
The matter went to trial under the old Code of Criminal Procedure before the First Additional Sessions Judge against the 6 named persons and one other.
There were commitment proceedings before a Magistrate 607 in which evidence was recorded.
At the commitment stage, 10 persons were put to face the enquiry, out of which three accused died.
There remained 6 of the original accused named in the F.I.R. and one more, not so named to face trial.
The trial court convicted all the 7 accused under Section 396, IPC and imposed on them a sentence of life imprisonment.
On appeal, the High Court acquitted two of them, namely Ram Narain Singh, the one unnamed in the F.I.R. and one Charittar Ahir, one of the so named and maintained the convictions of other accused.
This appeal by special leave was by the other accused challenging the judgment of the High Court, Allowing the appeal of the accused, this Court, HELD : 1. 01.
The prosecution had four sets of witnesses which could establish identity of the dacoity.
Three sets became redundant and only on the basis of one set was identity of the appellants established.
The first set consisted of three injured persons who were not examined at the trial by the prosecution.
This set did not help the prosecution at all.
The second set consisted of the evidence of P.W. 3, P.W.4 and P.W.9.
The names of P.Ws.4 and 9 were not mentioned in the F.I.R. and their evidence was left out of consideration by the Courts below.
Statement of P.W. 3 was left aside by the High Court.
In the third set was the evidence of P.W.I P.W.5 and P.W.8, who did not identify any of the dacoits.
None of these witnesses was declared hos tile.
Thus their evidence rather goes adverse to the prose cution.
The fourth set consisted of evidence of P.W.2 and P.W.11 whose evidence has been relied upon by the High Court to identify the 5 appellants and on the basis of the very same evidence two co accused, were acquitted because P.W.2 named one and excluded the other and P.w.11 named the other one and excluded the former giving rise to a doubt about the complicity of those two.
[611 612D] 1.02.
Seeing the formidable force of the dacoits and their number, the two P.Ws.2 and 11 would have been so non pulsed that they would not have dared to betray their presence by switching on and off their torches especially when they were unarmed and were no match to the might of the dacoits.
These two witnesses do not claim that they could identify the 608 dacoits by means other than their torches.
This part of the story of the prosecution obviously does not inspire confi dence.
It is also worthy of notice that P.W.11 was injured on the head before he ran for safety.
That was enough to shake and frighten him.
But before the receipt of such injury he claims to have switched on his torch first and to have seen in the first glimpse the appellants and others.
But his flash of the torch was met instantaneously with numerous torch flashes by the dacoits and its was like day light as said by P.W.1.
[613 F H] 1.03.
It is difficult in the situation to believe P.W.11 that he could in a split second have such a perception so as to identify all the five appellants and some others.
It is obvious and natural that behind a lit torch darkness prevails hiding the identity of the torch bearer and persons situated close.
So identity of the da coits was not possible by P.W.11.
[613 H614 A] 1.04.
In the facts and circumstances of the case, there is a grave doubt about the participation of the appel lants in the crime because of the failure of the prosecution to lead convincing evidence about the identity of the appel lants as dacoits.
There is even no corroboration worth the name in the form of recovery of fire arms and other weapons, or of the looted articles from the appellants, so as to lend some assurance to the participation of the appellants in the crime.
It may well be that the motive asserted by the prose cution relating to the dispute about the pond may have given cause to P.W.11 to assume that the appellants were responsi ble for the dacoity committed in his house and for P.W.2, to entertain that belief in a sweep.
[614 C E]


judgement:
Appeal No. 152 of 1955.
Appeal by special leave from the judgment and order dated March 25, 1953, of the Jammu and Kashmir High Court in Civil First Appeal No. 4 of 2009.
N.C. Chatterjee, Gopi Nath Kunzru and Naunit Lal, for the appellants.
H.N. Sanyal, Additional Solicitor General of India, Jaswant Singh, Advocate General for the State of Jammu and Kashmir, R. H. Dhebar and T. M. Sen, for the respondent.
March 2.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This appeal by special leave arises from a suit filed by the appellant in a representative capacity (Civil Suit No. 4 of 2008) against the State of Jammu & Kashmir praying for a declaration that the Jammu & Kashmir Big Landed Estate Abolition Act, XVII of 2007 (hereinafter called the Act) is void, inoperative and ultra vires of Yuvaraj Karan Singh who enacted it and for a further declaration that the appellant was entitled to retain the peaceful possession of his lands.
273 It appears that the validity of the Act was similarly challenged by Maghar Singh by his suit filed on the Original Side of the High Court of Jammu & Kashmir (Civil Suit No. 59 of 2007); and Mr. Justice Kilam who had heard the said suit had rejected the plaintiff 's contentions and held that the Act was valid.
When the appellant ' suit came for trial before the District Court it was conceded on his behalf that the points raised by him against the validity of the Act had been decided by Mr. Justice Kilam and that, in view of the said decision, the appellant could not usefully urge anything more before the District Court.
The learned District Judge who was bound by the decision of Mr. Justice Kilam applied it to the suit before him and held that the Act was valid and that the appellant was not entitled to the two declarations claimed by him.
In the result the appellant 's suit was dismissed.
Against this decree the appellant preferred an appeal in the High Court of Jammu & Kashmir (Civil Appeal No. 4 of 2009).
Maghar Singh whose suit had been dismissed by Mr. Justice Kilam had also preferred an appeal (No. 29 of 2008) before the High Court.
The two appeals were heard together by a Division Bench of the High Court which held that the Act was valid and that the appellants were not entitled to any declaration claimed by them.
Both the appeals were accordingly dismissed.
Against the decree passed by the High Court dismissing his appeal the appellant applied to the High Court for leave to appeal to this Court.
The said application was, however, dismissed.
Thereupon the appellant applied for, and obtained, special leave to appeal to this Court.
In dealing with this appeal it is necessary to narrate in some detail the events which took place in Kashmir and the constitutional changes which followed them in order to appreciate fully the background of the impugned legislation.
A clear understanding of this background will help us to deal with the appellant 's case in its proper perspective.
In 1925 Maharaja 35 274 Hari Singh succeeded Maharaja Pratap Singh as the Ruler of Kashmir.
It appears that for some time prior to 1934 there was public agitation in Kashmir for the establishment of responsible government.
Presumably as a sequel to the said agitation Maharaja Hari Singh issued Regulation 1 of 1991 (1934).
The Regulation began with the statement of policy that it was the declared intention of the Maharaja to provide for the association of his subjects in the matter of legislation and the administration of ' the State and that it was in pursuance of the said intention that the Regulation was being promulgated.
This Regulation consisted of 46 sections which dealt with the legislative, executive and judicial powers of the Maharaja himself, referred to the subjects which should be reserved from the operation of the Regulation, made provision for the constitution of the Legislature of the State, conferred authority on the Council to make rules for specified purposes and referred to other relevant and material topics.
It is relevant to refer to only two sections of this Regulation.
Section 3 provides that all powers legislative, executive and judicial in relation to the State and its government are hereby declared to be, and to have been always, inherent in and possessed and retained by His Highness the Maharaja of Jammu & Kashmir and nothing contained in the Regulation shall affect or be deemed to have affected the right and prerogative of His Highness to make and pass regulations, proclamations and ordinances by virtue of his inherent power.
Section 30 lays down that Do measure shall be deemed to have been passed by the Praja Sabha until and unless His Highness has signified his assent thereto.
The Regulation leaves it to the absolute discretion of His Highness whether to assent to such a measure or not.
Five years later the Maharaja promulgated the Jammu & Kashmir Constitution Act 14 of 1996 (1939).
From the preamble to this Constitution it appears that, before its promulgation, the Maharaja had issued a proclamation on February 11, 1939, in which he had announced his decision as to the further steps to 275 be taken to enable his subjects to make orderly progress in the direction of attaining the ideal of active co operation between the executive and the Legislature of the State in ministering to the maximum happiness of the people.
In accordance with this desire the text of the Constitution contained in Regulation 1 of 1991 was thoroughly overhauled and an attempt was made to bring the amended text into line with that of similar Constitutions of its type.
This Con stitution is divided into six parts and includes 78 sections.
Part 1 is introductory.
Part 2 deals with the executive; Part 3 with the Legislature; Part 4 with the Judicature; Part 5 contains miscellaneous provisions; and Part 6 provides for repeal and saving and includes transitional provisions.
It is significant that section 5 of this Act, like section 3 of the earlier Regulation, recognises and preserves all the inherent powers of His Highness, while section 4 provides that the State was to be governed by and in the name of His Highness, and all rights, authority and jurisdiction which appertain or are incidental to the government of the State are exercisable by His Highness except in so far as may be otherwise provided by or under the Act or as may be otherwise directed by His Highness.
The other provisions of the Act are all subject to the over riding powers of His Highness specifically preserved by section 5.
As we will point out later on, in substance the Constitutional powers of the Maharaja under the present Act were exactly the same as those under the earlier Act.
While the State of Jammu & Kashmir was being governed by the Maharaja and the second Constitution as amended from time to time was in operation, political events were moving very fast in India and they culminated in the passing of the Indian Independence Act, 1947.
Under section 7 (1) (b) of this Act the suzerainty of His Majesty over the Indian States lapsed and with it lapsed all treaties and agreements in force at the date of the passing of the Act between His Majesty and the Rulers of the Indian States, all obligations of His Majesty existing at that date towards Indian States or the Rulers thereof, and all powers, 276 rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise.
The proviso to the said section, however, prescribed that, notwithstanding anything in para.
(b), effect shall, as nearly as may be, continue to be given to the provisions of any such agreement as therein referred to in relation to the subjects enumerated in the proviso or other like matters until the provisions in question are denounced by the Ruler of the Indian State on the one hand or by the Dominion or Province concerned on the other hand, or are superseded by subsequent agreements.
Thus, with the lapse of British paramountcy the State of Jammu & Kashmir, like the other Indian States, was theoretically free from the limitations imposed by the said paramountcy subject to the provisions of the proviso just mentioned.
On October 22, 1947, the tribal raiders invaded the territory of the State; and this invasion presented a problem of unprecedented gravity before the Maharaja.
With the progress of the invading raiders the safety of the State was itself in grave jeopardy and it appeared that, if the march of the invaders was not successfully resisted, they would soon knock at the doors of Srinagar itself.
This act of aggression set in motion a chain of political events which ultimately changed the history and political constitution of Kashmir with unexpected speed.
On October 25, 1947, the Maharaja signed an Instrument of Accession with India which had then become an Independent Dominion.
By the First Clause of the Instrument the Maharaja declared that he had acceded to the Dominion of India with the intent that the Governor General of India, the Dominion, Legislature, the Federal Court and any other Dominion Authority established for the purpose of the Dominion shall, by virtue of the Instrument of Accession, subject always to the terms thereof and for the purposes only of the Dominion, exercise in relation to the State of Jammu & Kashmir such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India on August 15, 1947.
277 We may usefully refer to some other relevant clauses of this Instrument.
By el. 3 the Maharaja agreed that the matters specified in the Schedule attached to the Instrument of Accession were the matters with respect to which the Dominion Legislature may make laws for this State.
Clause 5 provides that the Instrument shall not be varied by any amendment of the Government of India Act, 1935, or of the Indian Independence Act, 1947, unless such amendment is accepted by the Maharaja by an Instrument supplementary to the original Instrument of Accession.
By el. 7 it was agreed that the Maharaja would not be deemed to be committed to the acceptance of any future Constitution of India nor would his discretion be fettered to enter into agreements with the Government of India under any such future Constitution.
Clause 8 is very important.
It says that nothing in the Instrument affects the continuance of the Maharaja 's sovereignty in and over his State, or, save as provided by or under the Instrument, the exercise of any powers, authority and rights then enjoyed by him as Ruler of the State, or the validity of any law then in force in the State.
The Schedule attached to the Instrument refers to four topics, defence, external affairs, communications and ancillary, and under these topics twenty matters have been serially enumerated as those in respect of which the Dominion Legislature had the power to make laws for the State.
Thus, by the Instrument of Accession, the Maharaja took the very important step of recognising the fact that his State was a part of the Dominion of India.
Meanwhile,, the invasion of the State had created tremendous popular fervour and patriotic feelings in resisting the act of aggression and this popular feeling inevitably tended to exercise pressure on the Maharaja for introducing responsible and popular government in the State.
The Maharaja tried to pacify the popular demand by issuing a proclamation on March 5, 1948.
By this proclamation he stated that in accordance with the traditions of his dynasty he had from time to time provided for increasing association of his people with the administration of the State with the object of 278 realising the goal of full responsible government at as early a date as possible, and he added that he had noted with gratification and pride the progress made so far and the legitimate desire of his people for the immediate establishment of a fully democratic constitution based on adult franchise with a hereditary Ruler from his dynasty as the constitutional head of an executive responsible to the Legislature.
It appears that before this proclamation was issued the Maharaja had already appointed Sheikh Mohammed Abdullah who was then the popular leader of the people as the head of the emergency administration.
By the pro clamation the Maharaja replaced the emergency administration by a popular interim government and provided for its powers, duties and functions pending the formation of a fully democratic constitution.
Clause 1 of the proclamation provides for the composition of the Ministry, whereas by cl. 2 the Prime Minister and other ministers are required to function as a cabinet and act on the principle of joint responsibility.
A Dewan appointed by the Maharaja is to be a member of the Cabinet.
Clause 4 provides that the Council of Ministers shall take appropriate steps, as soon as resto ration of normal conditions has been completed, to convene a National Assembly based on adult franchise having due regard to the principle that the number of representatives from each voting area should, as far as practicable, be proportionate to the population of that area.
Clause 5 then lays down that the Constitution to be framed by the National Assembly shall provide adequate safeguards for the minorities and contain appropriate provisions guaranteeing freedom of conscience, freedom of speech and freedom of assembly.
Clause 6 states that when the work of framing the Constitution is completed by the National Assembly the Constitution would be submitted through the Council of Ministers to the Maharaja for his acceptance.
The proclamation ended with the expression of hope that the formation of a popular interim government and the inauguration in the near future of a fully democratic Constitution would ensure the contentment, happiness and the moral and material advancement 270 of the people of the State.
Through under this proclamation a popular interim government was set up, the constitutional position still was that the popular government had theoretically to function under the Constitution of 1939.
It appears that before the popular government was thus installed in office the Maharaja had deputed four representatives of the State to represent the State in the Constituent Assembly called in the Dominion of India to frame the Constitution of India.
After the popular interim government began to function the political events in the State gathered momentum and the public began to clamour for the framing of a democratic Constitution at an early date.
When the atmosphere in the State was thus surcharged, the Maharaja issued his final proclamation on June 20, 1949, by which he entrusted to Yuvaraj Karan Singh Bahadur all his powers and functions in regard to the government of the State because he had decided for reasons of health to leave the State for a temporary period.
" Now therefore I hereby direct and declare ", says the proclamation, " all powers and functions whether legislative, executive or judicial which are exercisable by me in relation to the State and its government including in particular my right and prerogative of making laws, of issuing proclamations, orders and ordinances, or remitting, commuting or reducing sentences and of pardoning offenders, shall, during the period of my absence from the State, be exercisable by Yuvaraj Karan Singh Bahadur ".
As subsequent events show this was the last official act of the Maharaja before he left the State.
After Yuvaraj Karan Singh took the Maharaja 's place and began to function under the powers assigned to him by the said proclamation, the interim popular government installed earlier was functioning as before.
On November 25, 1949, Yuvaraj Karan Singh issued a proclamation by which he declared and directed that the Constitution of India shortly to be adopted by the Constituent Assembly of India shall, in so far as it is applicable to the State of Jammu & Kashmir, govern the constitutional relationship between 280 the State and the contemplated Union of India and shall be enforced in the State by him, his heirs and successors in accordance with the tenor of its provisions.
He also declared that the provisions of the said Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which were then in force in the State.
The preamble to this proclamation shows that it was based on the conviction that the best interests of the State required that the constitutional relationship established between the State and the Dominion of India should be continued as be tween the State and the contemplated Union of India; and it refers to the fact that the Constituent Assembly of India which had framed the Constitution of India included the duly appointed representatives of the State and that the said Constitution provided a suitable basis to continue the constitutional relationship between the State and the contemplated Union of India.
On January 26, 1950, the Constitution of India came into force.
This proclamation was followed by the Constitution (Application to Jammu & Kashmir) Order, 1950 (C. O. 10) which was issued on January 26, 1950, by the President in consultation with the Government of Jammu & Kashmir and in exercise of the powers conferred by cl.
(1) of article 370 of the Constitution.
It came into force at once.
Clause (2) of this order provides that for the purposes of sub cl.
(i) of article 370 of the Constitution, the matters specified in the First Schedule to the Order correspond to matters specified in the Instrument of Accession governing the accession of the State of Jammu & Kashmir to the Dominion of India as the matters with regard to which the Dominion Legislature may make laws for that State; and accordingly the power of Parliament to make laws for that State shall be limited to the matters specified in the said First Schedule.
Clause (3) provides that, in addition to the provisions of article 1 and article 370 of the Constitution the only other provisions of the Constitution which shall apply to the State of Jammu & Kashmir shall be those specified in the 281 Second Schedule to the Order and shall so apply subject to the exceptions and modifications specified in the said Schedule.
The First Schedule to the Order specified 96 items occurring in the Union List; while the Second Schedule set out the Articles of the Constitution made applicable to the State together with the exceptions and modifications.
Later on we will have occasion to refer to some of these Articles on which the appellant has relied.
It appears that, after the interim popular Government took office, the Revenue Minister made a statement of policy at a meeting of the special staff of revenue officers held in the Governor 's office on August 13, 1950.
The Minister stated that whatever the difficulties, the Cabinet was determined to go ahead and transfer the proprietorship of the land to the tiller.
The main idea underlying the proposed agricultural reform was that a land lord shall not possess more than 20 acres of agricultural land.
In addition, he would be allowed 8 kanals for his use and Sagzar and 4 kanals for his second house if in existence, and 10 kanals for Bedzar or Safedzar.
It was contemplated that a committee would be appointed to settle the details and other matters incidental to the said agricultural plan.
It was presumably in pursuance of this plan adopted by the interim Cabinet that the Act was promulgated by Yuvaraj Karan Singh on October 17, 1950.
The preamble to the Act shows that it was promulgated because no lasting improvement in agricultural production and efficiency was possible without the removal of the intermediaries between the tiller of the soil and the State, and so for the purpose of improving agricultural production, it was expedient to provide for the abolition of such proprietors as own big landed estates and to transfer the land held by them to the actual tiller.
The Yuvaraj enacted the law in exercise of the powers vested in him under section of the.
Constitution Act of 1996 and the 'proclamation issued by Maharaja Hari Singh on June 20, 1949.
The Act consists of 47 sections and purports to, carry out its 36 282 policy of improving the agricultural production of the State by providing for the extinction of the proprietors ' titles and the transfer of the lands to the tillers, and by setting up a self contained machinery for the carry ing out of the scheme of the Act and for settlement of all incidental disputes arising thereunder.
For the purpose of this appeal, however, it is necessary to refer to a few relevant sections which deal with the broad features of the extinction of the proprietors ' rights and the transfer of lands to the tillers.
section 2 of the Act inter alia defines land, proprietor and tiller, while section 3 excludes certain specified lands from the operation of the Act.
Section 4, sub section
(1) provides for the extinction of the right of ownership in certain lands and it lays down that not withstanding anything contained in any law for the time being in force, the right of ownership held by a proprietor in land other than the land mentioned in sub section
(2) shall, subject to the other provisions of the Act, extinguish and cease to vest in him from the date the Act comes into force.
Sub section (2) of section 4 enumerates lands which are excluded from the operation of sub section
They are (a) units of land not exceeding 182 kanals including residential sites, Bedzars and Safedzars, (b) Kahikrishmi areas, Araks, Kaps and unculturable wastes including those used for raising fuel or fodder, and (c) orchards.
The proviso to sub section
(2) gives government the power to dispose of lands mentioned in cl.
(b) in such a manner as may be recommended by the committee to be set up for that purpose.
Section 26 of the Act deals with the question of payment to the proprietors.
It provides that there shall, until the Constituent Assembly of the State settles the question of compensation, with respect to the land expropriated under this Act, be paid by the government to every proprietor who has been expropriated, an annuity in the manner indicated in the section.
In other words, subject to the final decision of the Constituent Assembly, section 26 contemplates the payment of annuity to the expropriated proprietors according to the scale prescribed in the section.
With the rest of the sections we are not concerned in the present appeal.
283 After the Act was enacted by the yuvaraj he issued a proclamation on April 20, 1951, directing that a Constituent Assembly consisting of representatives of the people elected on the basis of adult franchise shall be constituted forthwith for the purpose of framing a Constitution for the State of Jammu & Kashmir.
The proclamation sets out the manner in which members of the said Constituent Assembly would be elected and makes provisions for the holding of the said elections.
It also authorised the Constituent Assembly to frame its own agenda and make rules for regulating its procedure and the conduct of its business.
The preamble to this proclamation shows that the Yuvaraj was satisfied that it was the general desire of the people that a Constituent Assembly should be brought into being for the purpose of framing a Constitution for the State and that it was commonly felt that the convening of the said Assembly could no longer be delayed without detriment to the future well being of the State.
The Yuvaraj also felt no doubt that the proclamation issued by the Maharaja on March 5, 1948, in regard to the convening of the national assembly as per cls.
4 to 6 no longer met the requirements of the situation in the State.
Thus this proclamation was intended to meet expeditiously the popular demand for the framing of a democratic constitution ; and it indicates that a decisive stage bad been reached in the political history of the State.
In accordance with this proclamation a Constituent Assembly was elected and it framed the Constitution for the State.
By the Constitution thus framed the hereditary rule of the State was abolished, and a provision was made for the election of a Sadar i Riyasat to be at the head of the State.
On November 13, 1952, the Yuvaraj was elected to the office of the Sadar i Riyasat and with his election the dynastic rule of Maharaja Hari Singh came to an end.
On November 15, 1952, the Constitution (Application to Jammu & Kashmir) Second Amendment Order, 1952 (C. O. 43) was issued; and it came into force on November 17, 1952.
By this Order the earlier Order of 1950 was amended as a result of which all references 284 in the said Order to the Rajpramukh shall be construed as references to the Sadar i Riyasat of Jammu & Kashmir.
Similarly in the Second Schedule to the said Order some amendments were made.
On the ,same day a Declaration (C. O. 44) was made by the President under article 370, sub article
(3) of the Constitution that from November 17, 1952, the said article 370 shall be operative with the modification that for the explanation in el.
(1) thereof the new explanation shall be substituted.
The effect of this new explanation was that the government of the State meant the person for the time being recognised by the President, on the recommendation of the Legislative Assembly of the State, as the Sadar i Riyasat of Jammu & Kashmir acting on the advice of the Council of Ministers of the State for the time being in force.
On November 18, 1952, Yuvaraj Karan Singh was recognised as the Sadar i Riyasat of Jammu & Kashmir.
On May 14, 1954, another Constitution (Application to Jammu & Kashmir) Order (C. O. 48) was made by the President which inter alia applied article 31A and 31B to the State with certain modifications and included the Act in the Ninth Schedule of the Constitution.
The last two Orders were issued subsequent to the enactment of the Act and so they would have no bearing on the decision of the points raised before us.
We have briefly referred to them for the sake of completing the narrative of the material events.
The validity of the Act is impeached mainly on the ground that Yuvaraj Karan Singh had no authority to promulgate the said Act.
It is this argument which has been urged before us by Mr. Chatterjee in different and alternative forms that needs careful examination.
The first attack against the competence of Yuvaraj Karan Singh proceeds on the assumption that at the time when Maharaja Hari Singh conveyed his powers to Yuvaraj Karan Singh by his proclamation of June 20, 1949, he was himself no more than a constitutional monarch and as such he could convey to Yuvaraj Karan Singh no higher powers.
Let us first deal with this argument.
Prior to the passing of the Independence Act, 1947, the sovereignty of Maharaja 285 Hari Singh over the State of Jammu & Kashmir was subject to such limitations as were constitutionally imposed on it by the paramountcy of the British Crown and by the treaties and agreements entered into between the Rulers of the State and the British Government.
It cannot be disputed that so far as the internal administration and governance of the State were concerned Maharaja Hari Singh, like his predecessors, was an absolute monarch ; and that all powers legislative, executive and judicial in relation to his State and its governance inherently vested in him.
This position has been emphatically brought out by section 3 of Regulation 1 of 1991 (1934).
Though by this Regulation Maharaja Hari Singh gave effect to his intention to provide for the association of his subjects in the matter of legislation and administration of the State, by section 3 he fully preserved in himself all of his pre existing legislative, executive and judicial powers.
Section 3 not only preserves the said powers but expressly provides that nothing contained in the Regulation shall affect or be deemed to have affected the right and prerogative of His Highness to make and pass regulations, proclamations and ordinances by virtue of his inherent authority.
It is thus clear that the rest of the provisions of the Regulation were subject to the overriding powers preserved by His Highness.
It is, however, urged that this constitutional position was substantially altered by the subsequent Constitution Act of 1996 (14 of 1996).
We are unable to accept this argument.
Sections 4 and 5 of this Act in terms continue to preserve all the powers legislative, executive and judicial as well as the right and prerogative of His Highness just as much as section 3 of Regulation 1 of 1991.
It is significant that the provisions of Pt.
II which deals with the executive, like those of Pt.
III which deals with the Legislature, begin with the express provision that they are subject to the provisions of sections 4 and 5.
In other words, the powers conferred on the executive and the Legislature, limited and qualified as they are, are made expressly subject to the overriding powers of His Highness, 286 Besides, there are specific provisions in the Act which clearly emphasise the preservation of the said powers.
Section 24 which enumerates the reserved matters over which the Praja Sabha had no authority to legis late provides by cl.
(i) that the provisions of the Act and the rules made thereunder and their repeal or modifications constitute reserved matters.
Besides cl.(j) confers on His Highness the authority to add other specified matters to the list of reserved matters from time to time.
These provisions make it clear that his Highness could enlarge the list of reserved matters thereby limiting the jurisdiction of the Praja Sabha.
Similarly the legislative procedure prescribed by section 31, sub sections
(2) and (3) clearly shows that it is only such bills as received the assent of His Highness that be came law, His Highness 's power to assent or not to assent to the bills submitted to him being absolutely unfettered.
The ordinances issued by His Highness under section 38 cannot be repealed or altered by the Praja Sabha by virtue of section 39 ; and lastly section 72 expressly preserves the inherent power and prerogative of His Highness.
Thus there can be no doubt that though this Act marked the second step taken by His Highness in actively associating his subjects with the ad ministration of the State, it did not constitute even a partial surrender by His Highness of his sovereign rights in favour of the Praja Sabha.
So far as the said powers are concerned, the constitutional position under this Act is substantially the same as under the earlier Act.
It is contended by Mr. Chatterjee that the prerogative rights which are preserved by sections 5 and 72 of this Act represent only such rights as had not been entrusted to the Praja Sabha and in support of this contention he referred us to the observation made by Dicey that " the discretionary authority of the Crown originates generally not in Act of Parliament, but in the prerogatives term which has caused more perplexity to students than any other expression referring to the constitution.
The prerogative appears to be both historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary 287 authority, which it any given time is legally left in the hands of the Crown"(1).
This observation has been cited with approval by the House of Lords in the case of Attorney General vs De Keyser 's Royal Hotel Ltd. (2).
We do not see how this statement can assist us in determining the constitutional status, and the extent of the powers, of Maharaja Hari Singh in relation to the governance of the State.
The said discussion in Dicey 's treatise has reference to the special features of the history of English constitutional development; and it would naturally be of no relevance in dealing with the effect of the Constitution of 1996 with which we are concerned.
As we have just indicated this Constitution emphatically brings out the fact that the Maharaja was an absolute monarch and in him vested all the legislative, executive and judicial powers along with the prerogative rights mentioned in sections 5 and 72.
Whilst this was the true constitutional position the Independence Act, 1947, was passed by the British Parliament; and with the lapse of the British paramountcy the Rulers of Indian States were released from the limitations imposed on their sovereignty by the said paramountcy of the British Crown and by the treaties in force between the British Government and the States; this was, however, subject to the proviso prescribed by section 7 of the Independence Act under which effect had to be given to the provisions of the agreements specified in the proviso, until they were denounced by the Rulers of the States or were superseded by subsequent agreements.
In the result, subject to the agreements saved by the proviso, Maharaja Hari Singh continued to be an absolute monarch of the State, and in the eyes of international law he might conceivably have claimed the status of a sovereign and independent State.
But it is urged that the sovereignty of the Maharaj was considerably affected by the provisions of the Instrument of Accession which he signed on October 25, 1947.
This argument is clearly untenable.
It is true that by cl.
I of the (1) Dicey on " Law of the Constitution ", 9th Ed., P. 424.
(2) ; , 526.
288 Instrument of Accession His Highness conceded to the authorities mentioned in the said clause the right to exercise in relation to his State such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the said Dominion on August 15, 1947, but this was subject to the other terms of the Instrument of Accession itself; and el. 6 of the Instrument clearly and expressly recognised the continuance of the sovereignty of His Highness in and over his State.
We must, therefore, reject the argument that the execution of the Instrument of Accession affected in any manner the legislative, executive and judicial powers in regard to the government of the State which then vested in the Ruler of the State.
There is one more argument which has been urged before us on the question of Maharaja Hari Singh 's powers.
It is said that when Maharaja Hari Singh issued his proclamation on March 5, 1948, replacing the emergency administration by a popular interim government headed by Sheikh Mohammad Abdullah and constituting a Council of Ministers who were to function as a Cabinet and act on the principle of joint responsibility, he virtually introduced a popular democratic government in the State, surrendered his sovereign rights, and became a constitutional monarch.
There is no substance in this argument.
The proclamation merely shows that, under pressure of public opinion and as a result of the difficult and delicate problem raised by the tribal raid, the Maharaja very wisely chose to entrust the actual administration of the government to the charge of a popular Cabinet; but the description of the Cabinet as a popular interim government did not make the said Cabinet a popular Cabinet in the true constitutional sense of the expression.
The Cabinet had still to function under ,the Constitution Act 14 of 1996 (1939) and whatever policies it pursued, it had to act under the overriding powers of His Highness.
It is thus clear that until the Maharaja issued his proclamation on June 20, 1949, all his powers legislative, executive and judicial as well as his right and prerogative vested in him as before.
That is why the argument that Maharaja, 289 Hari Singh had surrendered his sovereign powers in favour of the Praja Sabha and the popular interim government, thereby accepting the status of a constitutional monarch cannot be upheld.
The next point which calls for our decision is .
What was the effect of the proclamation issued by Maharaja Hari Singh in favour of Yuvaraj Karan Singh on June 20, 1949 ? The terms of this proclamation have already been set out by us.
There is no doubt that, during the temporary period that the Maharaja wanted to leave the State for reasons of health, he conferred on Yuvaraj Karan Singh all his powers and functions in regard to the government of the State.
Since the Maharaja was himself an absolute monarch, there was no fetter or limitation on his power to appoint somebody else to exercise all or any of his powers.
There was no authority or tribunal in the State which could question his right or power to adopt such a course.
As Chief Justice Kania has observed in Re: (1) " A legislative body which is sovereign like an autocratic Ruler has power to do anything.
It may, like a Ruler, by an individual decision, direct that a certain person may be put to death or a certain property may be taken over by the State.
A body of such character may have power to nominate someone who can exercise all its powers and make all its decisions.
This is possible to be done because there is no authority or tribunal which can question the right or power of the authority to do so ".
Similarly, Mahajan, J., has observed in the same case that " The Parliament being a legal omnipotent despot, apart from being a legislature simpliciter, it can in exercise of its sovereign power delegate its legislative functions or even create new bodies conferring on them power to make laws "; and the learned Judge added that " whether it exercises its power of delegation of legislative power in its capacity as a mere legislature or in its capacity as an omnipotent despot, it is not possible to test it on the touchstone of judicial precedent or judicial scrutiny as courts of justice in England cannot inquire into it ".
In his judgment Mukherjea J., has also made similar (1)[1951] S.C.R. 747.
766, 889, 969.
37 290 observations after quoting the words of Sir Edward Coke in regard to the " transcendent and absolute power and jurisdiction of Parliament ".
What is true of the British Parliament would be truer about an absolute and despotic monarch, the exercise of whose J. paramount power as a sovereign is not subject to any popular and legislative control.
If that be the true position, the proclamation issued by Maharaja Hari Singh authorising Yuvaraj Karan Singh to exercise all his powers would clothe him with all such powers and he would be in the same position as his father so long as the proclamation stood.
Besides, it would be permissible to observe that though the proclamation purports to have been issued on the ground that Maharaja Hari Singh was leaving the State for a temporary period for reasons of health, it was clear even then that the temporary departure of the Maharaja really meant his permanent retirement from the State.
It was realised by him as much as by his subjects that to face the stress and strain caused by the unusual problems raised by the act of aggression against the State, it was necessary that he should quit and young Yuvaraj Karan Singh should take his place.
Thus considered the proclamation really amounted to his abdication and installation by him of Yuvaraj Karan Singh as the Ruler of the State.
It is, however, not necessary to consider any further this aspect of the matter in dealing with the authority of Yuvaraj Karan Singh, because, as we have just held, Maharaja Hari Singh was competent to delegate his powers to Yuvaraj Karan Singh for a temporary period as his proclamation purported to do; and by virtue of such delegation, Yuvaraj Karan Singh was clothed with all the authority which his father possessed as the Ruler of the State until the proclamation was revoked.
Therefore the argument that Maharaja Hari Singh 's proclamation issued on June 20, 1949, did not confer on Yuvaraj Karan Singh the specified powers cannot be accepted.
The next contention is that the powers of Yuvaraj Karan Singh were substantially limited by the proclamation issued by him on November 25, 1949.
We are not impressed even by this argument.
By this 291 proclamation Yuvaraj Karan Singh purported to make applicable to his State the Constitution of India which was shortly going to be adopted by the Constituent Assembly of India in so far as was applicable; in other words, this proclamation did not carry the constitutional position any further than where it stood after and as a result of the execution of the Instrument of Accession by Maharaja Hari Singh.
It is thus clear that the proclamation did not affect Yuvaraj Karan Singh 's authority and powers as the Ruler of the State which had been conferred on him by the proclamation of his father issued in that behalf.
Mr. Chatterjee, however, has very seriously pressed before us his contention that, as a result of the application of certain specified articles of the Constitution to the State of Jammu & Kashmir, all vestiges of sovereignty which Yuvaraj Karan Singh could have claimed had vanished; and in consequence he had become merely a constitutional monarch of the State without any legislative authority or powers.
Indeed it is this part of the case on which Mr. Chatterjee placed considerable emphasis.
In this connection, it would be relevant to recall that by the Constitution Order 10, in addition to the provisions of article 1 and article 370, certain other provisions of the Constitution were made applicable to the State with exceptions and modifications as specified in the Second Schedule.
Articles 245, 254 and 255 as well as article 246 as modified from Pt.
XI of the Constitution were applied to the State.
Similarly from Pt.
XIX article 366 was applied, and from Pt.
XXI articles 370 and 385 were applied.
In this connection it is also necessary to bear in mind that Pt.
VI which deals with the States in Pt.
A of the First Schedule has not been applied, nor has Pt.
VII which consisted of article 238 been applied.
article 238 provides for the application of provisions of Pt.
VI to States in Pt.
B of the First Schedule.
Schedule Seven which consists of the three Legislative Lists has also not been applied.
It is thus clear that though by the application of article I the State became a part of the territory of India and con stituted a State under Part B, the provisions of 292 Pt.
VI and Pt.
VII did not apply to it nor did the Schedule prescribing the three Legislative Lists.
This fact is of considerable importance and significance in dealing with the appellant 's contention.
Since Mr. Chatterjee has strongly relied on the application of article 370 of the Constitution to the State in support of his argument that the Yuvaraj bad ceased to hold the plenary legislative powers, it is necessary to examine the provisions of this Article and their effect.
This Article was intended to make temporary provisions with respect to the State of Jammu & Kashmir.
It reads thus: " article 370: (1) Notwithstanding anything in this Constitution, (a)the provisions of article 238 shall not apply in relation to the State of Jammu & Kashmir; (b)the power of Parliament to make laws for the said State shall be limited to (i)those matters in the Union List and the Con current List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and (ii)such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
Explanation.
For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja 's Proclamation dated the fifth day of March, 1948; (c)the provisions of article I and of this article shall apply in relation to that State; (d)such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify; 293 Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause (1) or in the Second proviso to sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
(3)Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
" Clause (1) (b) of this Article deals with the legislative power of the Parliament to make laws for the State; and it prescribes limitation in that behalf.
Under paragraph (1) of sub cl.
(b) of cl.
(1) Parliament has power to make laws for the State in respect of matters in the Union List and the Concurrent List which the President in consultation with the Government of the State declares to correspond to matters specified in the Instrument of Accession; whereas in regard to other matters in the said Lists Parliament may, under paragraph (ii), have power to legislate for the State after such other matters have been specified by his order by the President with the concurrence of the Government of the State.
It is significant that paragraph (i) refers to consultation with the Government of the State while paragraph (ii) requires its concurrence, 294 Having thus provided for consultation with, and the concurrence of, the Government of the State, the explanation shows what the Government of the State means in this context.
It means according to the ,appellant, not the Maharaja acting by himself in his own discretion, but the person who is recognised as the Maharaja by the President acting on the advice of the Council of Ministers for the time being in office.
It is on this explanation that the appellant has placed considerable reliance.
Sub clauses (c) and (d) of cl.
(1) of the Article provide respectively that the provisions of article I and of the present Article shall apply in relation to the State; and that the other provisions of the Constitution shall apply in relation to it subject to exceptions and modifications specified by the Presidential order.
These provisions are likewise made subject to consultation with, or concurrence of, the Government of the State respectively.
Having provided for the legislative power of the Parliament and for the application of the Articles of the Constitution to the State, Art .
370, el.
(2) prescribes that if the concurrence of the Government of the State required by the relevant sub cls. of cl.
(1) has been given before the Constituent Assembly of Kashmir has been convened, such concurrence shall be placed before such Assembly for such decision as it may take thereon.
This clause shows that the Constitution makers attached great importance to the final decision of the Constituent Assembly, and the continuance of the exercise of powers conferred on the Parliament and the President by the relevant temporary provisions of article 370(1) is made conditional on the final approval by the said Constituent Assembly in the said matters.
(3) authorises the President to declare by public notification that this article shall cease to be operative or shall be operative only with specified exceptions or modifications; but this power can be exercised by the President only if the Constituent Assembly of the State makes recommendation in that behalf.
Thus the proviso to el.
(3) also emphasises the importance 295 which was attached to the final decision of the Constituent Assembly of Kashmir in regard to the relevant matters covered by article 370.
The appellant contends that the scheme of this Article clearly shows that the person who would be recognised by the President as the Maharaja of Jammu & Kashmir was treated as no more than a constitutional Ruler of the State.
In regard to matters covered by this Article he could not function or decide by himself and in his own discretion.
The con sultation contemplated by this Article had to be with the Maharaja acting on the advice of the Council of Ministers and the concurrence prescribed by it had to be similarly obtained and given, and that brings out the limitations on the powers of the Maharaja.
It is also urged that the final decision in these matters has been deliberately left to the Constituent Assembly which was going to be convened for the framing of the Constitution of the State, and that again emphasises the limitations imposed on the powers of the Maharaja.
This argument assumes that under the explanation to article 370(1) it is the person recognised by the President as the Maharaja who has to act on the advice of ' the Council of Ministers in relation to matters covered by article 370.
But, it is possible to take the view that the said clause really indicates that in recognising any person as the Maharaja of the State the President has to act on the advice of the Council of Ministers for the time being in office under the Maharaja 's proclamation dated March 5, 1948.
If that be the true construction of the explanation, then the argument that, before the Maharaja is consulted or his concurrence is obtained, he must act on the advice of his Ministers would not be valid.
We would, however, like to deal with the argument even on the assumption that the construction put by the appellant on the explanation is right.
On the said construction the question which falls to be determined is: Do the provisions of article 370(1) affect the plenary powers of the Maharaja in the matter of the governance of the State ? The effect of the application of the present Article has to be judged in 296 the light of its object and its terms considered in the context of the special features of the constitutional re lationship between the State and India.
The Constitution makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself; that is the main basis for, and purport of, the temporary provisions made by the present Article ; and so the effect of its provisions must be confined to its subject matter.
It would not be permissible or legitimate to hold that, by implication, this Article sought to impose limitations on the plenary legislative powers of the Maharaja.
These powers had been recognised and specifically provided by the Constitution Act of the State itself; and it was not, and could not have been, within the contemplation, or competence of the Constitution makers to impinge even indirectly on the said powers.
It would be recalled that by the Instrument of Accession these powers have been expressly recognised and preserved and neither the subsequent proclamation issued by Yuvaraj Karan Singh adopting, as far as it was applicable, the proposed Constitution of India, nor the Constitution Order subsequently issued by the President, purported to impose any limitations on the said legislative powers of the Ruler.
What form of government the State should adopt was a matter which had to be, and naturally was left to be, decided by the Constituent Assembly of the State.
Until the Constituent Assembly reached its decision in that behalf, the constitutional relationship between the State and India continued to be governed basically by the Instrument of Accession.
It would therefore be unreasonable to assume that the application of article 370 could have affected, or was intended to affect, the plenary powers of the Maharaja in the matter of the governance of the State.
In our opinion, the appellant 's contention based on this Article must therefore be rejected.
The application of articles 245, 254 and 255, and of article 246 as modified,, does not seem to have any bearing on the question of the authority and powers of the Ruler of the State.
Their application merely serves to provide for the legislative powers of the Parliament 297 to make laws in respect of matters covered by article 370.
Incidentally we may point out that the application of articles 246 and 254 as provided by the Constitution Order 10 of 1950 has been subsequently modified by the Constitution Order 48 of 1954.
Similarly article 255 which was originally applied by the first Order has been deleted by the latter Order.
This shows that it was subsequently realised that the original application of the said Articles prescribed by the earlier Order was more anticipatory and notional and required either suitable modification or cancellation.
The appellant has then relied upon the provisions of article 385.
It provides: " article 385.
Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by provisions of this Constitution on the House or Houses of the Legislature of the State so specified.
" It is difficult to see how this Article supports the appellants contention.
In fact it is not easy to appreciate what the application of this Article to the State really meant.
As we have already pointed out the application of the specified Articles to the State was not intended to affect, and constitutionally could not have affected, the form of the government prevailing in the State and the plenary legislative powers of the Maharaja in regard to the government of the State.
As in regard to the application of articles 245, 254 and 255, so in regard to this Article as well, it was subsequently realised that the application of the Article was purely notional and could serve no purpose.
That is why by C. O. 48 of 1954 this Article has been deleted from the list of Articles applied to the State.
It seems to us that the initial formal application of this Article cannot justify the appellant 's case that the plenary legislative powers vesting in the Ruler of the State 38 298 were not only affected but, as the appellant contends, completely extinguished.
The constitutional position in regard to the government of the State continued to be the same despite the application of this Article.
In dealing with the application of this Article and articles 245, 254 and 255, it would be permissible to rely on the rule of construction set out in Maxwell that " a thing which is within the letter of a statute is generally to be considered as not within the statute unless it is also the real intention of the Legislature It is evident that the Constitution makers have treated the problem of Kashmir on a special basis and that though the association of Kashmir with India which began with the Instrument of Accession has been steadily and gradually growing closer and closer on a democratic basis, it still presents features not common to any other State included in the Union of India.
We have no doubt that at the time when the Act was passed the plenary legislative powers of the Yuvaraj had not been affected in any manner.
The result is that Yuvaraj Karan Singh was competent to enact the Act in 1950 and so the challenge to the validity of the Act on the ground that he did not possess legislative competence in that behalf cannot succeed.
It is clear that the validity of the Act cannot be chal lenged on the ground that the Act did not provide for the payment of compensation.
For one thing section 26 of the Act did contemplate the payment of compensation.
Besides, as the law of the State then stood, there was no limitation on the legislative power of the Ruler such as is prescribed by article 31 of the Constitution; and article 31 had not been then applied to the State.
Subsequently when article 31(2) was extended to the State the Act no doubt became the existing law and it has been saved by the new and modified cl.
(5) of the said Article.
There is another aspect of the matter to which reference must be made.
Section 26 of the Act had left the final decision on the question of the payment of compensation to the Constituent Assembly of the State; and it is common ground that the Constituent Assembly has decided not to pay any compensation.
Mr. Chatterjee contends that this decision is (1) Maxwell on " Interpretation of Statutes ", 10th Ed., P. 17.
invalid because the Constituent Assembly itself was, not properly called and constituted.
There is no substance in this argument.
After Yuvaraj Karan Singh was put in charge of the duties of governing the State by Maharaja Hari Singh by his proclamation issued on June 20, 1949, he began to function as a Ruler and was entitled to exercise all his powers in that behalf He realised that the original plan of Maharaja Hari Singh to call a national assembly which he announced on March 5, 1948, would not meet the requirements of the situation which had radically changed; and the Yuvaraj thought that a Constituent Assembly on a broader basis should be called and should be entrusted with the task of framing a Constitution without any delay.
It is idle to suggest that the Yuvaraj was bound to convene the national assembly on the same lines as were laid down by Maharaja Hari Singh in his proclamation and with the same object, for the same purpose, and subject to the same conditions.
It was for the Yuvaraj to consider the situation which confronted him and it was within his competence to decide what solution would satisfactorily meet the requirements of the situation.
We have no doubt that the Yuvaraj was perfectly competent to issue the proclamation on April 20, 1951, under which the Constituent Assembly ultimately came to be elected and convened.
If the Constituent assembly was properly constituted and it decided not to pay any compensation to the landlords it is difficult to understand how the validity of this decision can be effectively challenged.
That leaves only one question to be considered.
It is contended that the Act is invalid under article 254 of the Constitution because it is inconsistent with the two earlier Acts, No. 10 of 1990 and No. 4 of 1977.
It is unnecessary to enquire whether there is any repugnancy between the Act and the earlier Acts to which the appellant refers.
In our opinion the argument based on the provisions of article 254 must be rejected on the preliminary ground that it is impossible to invoke the assistance of this Article effectively because in terms the essential conditions for its application are absent in the present case.
This argument assumes that under article 254(1) if there is repugnancy between 300 any provision of a law made by the Legislature of a State and any provision of an existing law with respect to One of the matters enumerated in the Concur rent List, then subject to the provisions of cl.
(2), the law made by the Legislature of the State was to the extent of the repugnancy void.
The appellant concedes that there is no scope for applying the provisions of el.
(2) of article 254 which deals with cases where the subsequent law has been reserved for the consideration and assent of the President; but this aspect of the matter itself shows that the whole Article would in substance be inapplicable to the State.
Clause (2) of article 254, which is its integral and important part, postulates that the Legislature of the State, in enacting a law on the relevant matter may reserve it for consideration of the President and his assent, and thereby save the consequences of cl.
(1) ; and cl.
(2) was clearly inapplic able to the State.
Besides, it is clear that the essential condition for the application of article 254(1) is that the existing law must be with respect to one of the matters enumerated in the Concurrent List; in other words, unless it is shown that the repugnancy is between the provisions of a subsequent law and those of an existing law in respect of the specified matters, the Article would be inapplicable; and, as we have already pointed out, Schedule Seven which contains the three Legislative Lists was not then extended to the State; and it is, therefore, impossible to predicate that the matter covered by the prior law is one of the matters enumerated in the Concurrent List.
That is why article 254 cannot be invoked by the appellant.
On this view, it is not necessary to consider whether the construction sought to be placed by the appellant on this Article is otherwise correct or not.
The result is that all the grounds urged by the appellant against the validity of the Act fail, and so it must be held that the High Court was right in taking the view that the plaintiff had not shown that the Act was ultra vires.
The appeal accordingly fails and is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
This appeal challenged the validity of the Jammu and Kashmir Big Landed Estate Abolition Act, XVII Of 2007 which was enacted by Yuvaraj Karan Singh on October 17, 1950, in exercise of the powers vested in him by section 5 of the Jammu and Kashmir Constitution Act 14 of 1996 (1930) and the final proclamation issued by Maharaja Hari Singh on June 20, 1949, by which he entrusted all his powers and function to the Yuvaraj.
The object of the Act was to improve agricultural production by abolishing big landed estates and transferring land to the actual tillers of the soil.
The suit out of which the present appeal arises was brought by the appellant in a representative capacity for a declaration that the Act was void, inoperative and ultra vires and that he was entitled to retain peaceful possession of his lands.
Both the trial Court as also the High Court in appeal found against him and dismissed the suit.
Hence this appeal by special leave.
The validity of the Act was challenged mainly on the ground that Yuvaraj Karan Singh had no authority to promulgate the Act.
It was contended that (i) when Maharaja Hari Singh conveyed his powers to the Yuvaraj by his proclamation of June 20, 1949, he was himself a constitutional monarch and could convey no higher powers, (2) the said proclamation could not confer on the Yuvaraj the powers specified therein, (3) the powers of the Yuvaraj were substantially limited by his own proclamation issued on November 25, 1949, by which he sought to make applicable to his State the Constitution of India, that was soon to be adopted by its Constituent Assembly, in so far as it was applicable, (4) as a result of the application of certain specified Articles, including article 370 of the Constitution of India to the State of Jammu Kashmir, the Yuvaraj became a constitutional monarch without any legislative authority or powers and (5) the decision of the Constituent Assembly of the State not to pay compensation was invalid since the Assembly itself was not properly constituted.
Held, that Yuvaraj Karan Singh, when lie promulgated the Act, had the power to do so and its validity was beyond question.
271 It was indisputable that prior to the passing of the Independence Act, 1947, Maharaja Hari Singh like his predecessors, was an absolute monarch so far as the internal administration of his State was concerned.
Section 3 Of the Regulation 1 of 1991 (1934) issued by the Maharaja not only preserved all his preexisting powers but also provided that his inherent right to make any regulation, proclamation or ordinance would remain unaffected.
The Constitution Act 14 of 1996 (1939) promulgated by him did not alter the position.
Sections 4 and 5 of that Act preserved all the powers that he had under section 3 of the Regulation 1 of 1991 and section 72 preserved his inherent powers so that he remained the same absolute monarch as he was before.
With the lapse of British paramountcy on the passing of the Independence Act, 1947, the Maharaja continued to be the same absolute monarch, subject to the agreements saved by the proviso to section 7 Of the Act, and in the eyes of international law could conceivably claim the status of an independent sovereign.
It was unreasonable to suggest that the provisions of the Instrument of Accession signed by the Maharaja on October 25, 1947, affected his sovereignty, in view of cl. 6 thereof, which expressly recognised its continuance in and over his State.
There was no substance in the argument that as a result of his proclamation issued on March 5, 1948, which replaced the emergency administration by a popular interim Government headed by Sheik Mohammad Abdullah and constituted a Council of Ministers who were to function as a cabinet, the Maharaja became a constitutional monarch.
The cabinet had still to function under the Constitution Act 14 of 1996 (1939) under the overriding powers of the Maharaja.
When the Maharaja on June 20, 1949, therefore, issued the proclamation authorising the Yuvaraj to exercise all his powers, although for a temporary period, it placed the Yuvaraj in the same position as his father till the proclamation was revoked.
The Maharaja was himself an absolute monarch and there could be no question as to his power of delegation.
In Re. ; , , referred to.
The proclamation issued by the Yuvaraj on November 25, 1949, did not vary the constitutional position as it stood after the execution of the Instrument of Accession by the Maharaja nor could it in any way affect the authority conferred on the Yuvaraj by his father.
The contention that the application of certain specified Articles of the Indian Constitution to the State by the Constitution (Application to Jammu and Kashmir) Order (C. O. 10) issued by the President on January 26, 1950, affected the sovereign powers of the Yuvaraj was not correct.
Neither the scheme of article 370 nor the explanation to cl.
(1) of that Article Contemplated that the Maharaja was to be a constitutional ruler.
The temporary provisions of that Article were 272 based on the assumption that the ultimate relationship between India and the State should be finally determined by the Constituent Assembly of the State itself.
So, that Article could not, either expressly or by implication, be intended to limit the plenary legislative powers of the Maharaja.
Till the Constituent Assembly of the State, therefore, made its decision, the Instrument of Accession must hold the field.
The initial formal application of article 385, which was sub sequently deleted from the list of Articles applied to the State, could not justify the conclusion that it had adversely affected the legislative powers of the Yuvaraj.
There was no substance in the contention that the decision of the Constituent Assembly not to pay compensation was invalid as the Assembly itself was not properly called or constituted.
There could be doubt that the Yuvaraj was perfectly competent to issue the proclamation dated April 20, 1951 in variation of the Maharaja 's, under which the Assembly was ultimately constituted, and so the Assembly was properly convened.