Sarwarlal and Others vs State of Hyderabad

Mohd. Ahmed Ansari, J.—These nine applications are under Article 226 of the Constitution and had originally prayed for a Writ in the nature of mandamus to get back the possessions of the Applicants'' jagirs and ''makhta'' from the State of Hyderabad, the Chief Secretary and Jagir Administrator, on the grounds that the Hyderabad (Abolition of Jagirs) Regulation, No. 69 of 1359 P., which became operative on 15-8-1949, and under which possessions of the jagirs and makhta were taken in September 1949, had become unconstitutional due to its having infringed the Applicants'' fundamental right under Article 19(1)(f) of the Constitution. It was also claimed that the Regulation was without any public purpose, contained no provision for the payment of compensation guaranteed under Article 31 of the Constitution, was discriminatory and without legal authority in the person who had promulgated it. Before the applications came on for hearing amended applications were filed on 27-8-1952, wherein each of the nine Applicants prayed that Sub-section (c) of Section 4(1), Sub-section (2) of Section 4 of the Hyderabad Jagir (Commutation) Regulation No. 25 of 1359 F., and Sub-section (4) of Section 6 of the Jagir Abolition Regulation alone be held constitutionally invalid.

To appreciate the long arguments that have been urged before us during the hearings of the applications, we shall first give a brief description of the Jagir tenures in this State, as they were before the Abolition of Jagir Regulation became operative. We shall then deal with the general authorisation given to the Military Governor by H.E.H. the Nizam, under which he enacted the Regulation, and the several provisions in the Regulation. We shall next mention the authority of H.E.H. the Nizam, under which the then Chief Minister of the State passed the Hyderabad Jagir (Commutation) Regulation, its several provisions and the grounds on which the aforesaid sub-sections of the two Regulations are being challenged. For it appears to us that the two Regulations having been passed before the inauguration of the Constitution, any decision on the unconstitutionality of their provisions, which is given after 26-1-1950, should guard against the Constitution of India being given retrospective effect.

Eight out of the aforesaid nine Applicants are jagirdars, and one is a makhtadar. In their original applications they had claimed that prior to the enforcement of the Abolition of Jagir Regulation, they were in possession and enjoyment as absolute owners of their jagirs and makhta. The State in their replies have correctly pointed out the invalidity of such an assertion, which is apparent to any one who is familiar with the rules relating to jagir tenures, in this State before the enactments of the Regulations. Unfortunately words in Crown grants of this State showing heritable estates and construed elsewhere as conferring ownership in the land whenever such words have been used, were never recognised by the authorities of the State as confirming such rights.

In--Laxmi Narayan v. Trimbaklal 25 DLR 1 (A), the then Judicial Committee of this State had held that the Ruler of the State was the absolute owner of all the lands situated therein; he had granted usufructuary rights in them to persons which may be called tenures, one of such tenure-holders were the jagirdars, who paid no revenue, their heirs did'' not succeed automatically, during their life-times their interests were inalienable, the grantor was not bound on the deaths of such grantees to confer the estates on their heirs and no suit relating to such tenures could be instituted in civil Courts without prior permissions.

A copy of the Firman referred to in the aforesaid decision has been placed on the record of Sarwarlal''s application before us, which is dated Ramzan 4, 1319 H. (December 16, 1901). It forbids sales or mortgages of the jagirs without earlier permission of the Government. It further prohibits any jagir being encumbered with debts without earlier sanction. Then it lays down that granting of a jagir on the death of the deceased holder to a person, who may or may not be the heir of the deceased, was within the sole discretion of the grantor. The next important Firman placed on the record of Sarwarlal''s case is dated Rabi-us-sani 5, 1347 H. (September 20, 1928), in which it was reiterated that the powers of the Ruler regarding jagir grants were not curtailed by the rules framed for the guidance of the Atiyat (Crown grants) Courts in succession matters, and an absolute right vested in him to grant the estate or refrain from doing so. He can even confer the estate on a stranger. This absolute right was again emphasised by another Firman of Moharrum 30, 1359 H. (March 10, 1940).

(Therefore, it is clear that the jagirdars of this ''State, whatever be the words used in their original Sanads, did not have heritable estates and each had a life-tenure, which was inalienable during his life without proper sanction.

In this state of things we do not think Sarwarlal''s application, in which his original Sanad has been made part of the record, requires any special decision and it should be dealt with like other applications. Then the usufructs of the jagir tenures could not be attached in execution of civil decrees except with the permission of the Revenue Department and no suit could be entertained by the Civil Court affecting the right of the grantor without special permission. Regarding this last provision there was a Firman of Ramzan 25, 1330 H. (September 8, 1912), which says that no Court without special permission obtained through the Revenue Department, can entertain a suit relating to atiyats.

We will now refer to two cases of the then Judicial Committee in support of our view that jagirdars in this State had only life-tenures, each successor of the estate got a fresh estate, and the powers of the grantor were absolute in matters of granting these estates on the deaths of the jagirdars. In--Sultan-ul-mulk v. Badsha Begum 35 DLR 887 (B), it was held that jagir tenures were, inalienable, non-heritable, reverted to the grantor on the death of the grantees and on being granted to the heirs the order operated as a fresh grant. Again in--Munawar Begum v. Najib Mirga 35 DLR 236 (C), the provisions of the several Firmans were considered and it was held that the grantees of these tenures had no right to burden the estate, and the rights conferred on them were not hereditable. It is obvious that the claim of the Applicants, in view of the aforesaid citations, about being the owners of their respective tenures cannot be upheld, and the powers of the Ruler of this State regarding such estates were absolute and uncontrolled by any legal limitations.

Nevertheless, the jagirdars had during their lives rights of managing their estates, enjoying the incomes from the revenue, cess and excise duties arising there from and other important privileges which conferred considerable monetary benefits on them. Had it not been for the fact that the impugned provisions of the two Regulations were passed prior to the inauguration of the Constitution it is clear that these rights would have been covered by the word ''property'' in Article 31(2) of the Constitution as interpreted by their Lordships of the Supreme Court" in the case of Dwarkadas Shrinivas of Bombay Vs. The Sholapur Spinning and Weaving Co. Ltd. and Others, (D).

The Abolition of Jagir Regulation was passed by the Military Governor in exercise of the authority conferred on him by a Firman of Nizam dated 19-9-1948, which was published in the extraordinary Gazette of 20-9-1948 and is as follows:

Whereas the General Officer Commanding in Chief Southern Army has appointed Major General J.N. Chaudary, O.B.E., to be the Military Governor for the Hyderabad State and whereas all ''authority for the administration of the State now vests in him'', I hereby enjoin all the subjects of the State to carry out such orders as he may deem fit to issue from time to time. I appeal to all officers of the State administration and subjects of the State to render faithful and unflinching obedience to the Military Governor and conduct themselves in a manner calculated to bring about the speedy restoration of law and order in the State.

Before dealing with the provisions of the Abolition of Jagir Regulation, which came into force on 15-8-1949 on its publication in the Gazette, we would point out that this authorisation to the Military Governor, which was later construed to include powers of legislation also, is without any limitations similar (to?) Entry 42 of the List III of Schedule VII of the Constitution. Now the Abolition of Jagir Regulation consists of 24 sections. Section 4 says that no person after the commencement of this Regulation shall be appointed or be recognised as a jagirdar whether in succession or otherwise. Then Sections 17 and 18 exclude jagirdar''s home farms and personal properties from the operation of the Regulation Section 6 directs a date to be notified for the transfer of the administrations of the jagirs to the Government; on the date so appointed the regards were to make over the managements of their jagirs to the Jagir Administrator and on the failure to comply with these provisions the officer appointed under the Regulation could forcibly take possessions. Such dates have been notified and possessions taken before the inauguration of the Constitution.

Then Section 6 lays down that the Jagirs shall be included in the ''diwani'' and unless and until included in a district, shall be administered by the Jagir Administrator. The powers, rights and liabilities in relation to such jagirs shall cease to be exercisable by the Jagirdar and shall be exercisable by the Administration. Sub-section (4) of Section 6 which is challenged by the amended application, is as follows:

(4) No jagirdar shall recover or receive any customary or other dues from any tenant or resident of the jagir.

By Sub-section (7) of Section 6, the jagirdar''s shares in the net income of the jagir are made inalienable save with the previous sanction of the Government and only one-half liable to attachment in execution of decrees. These shares under Sub-section (8) of Section 6 are heritable according to the personal law of the persons entitled to them and in absence of such heirs, they would lapse to Government in case of grants by the Ruler.

The Regulation after providing for the deduction of certain percentage of gross revenue for the expenses of the administration, in Sections 10 and 11 lays down how the income is to be distributed among the persons entitled to it. Section 13 allows the Jagir Administration to make advances. Then Section 14 declares these amounts to be interim maintenance allowances until such time as the terms of the commutation of the jagirs are determined. Section 24 authorises framing of the Rules by the Government for purposes of the Regulation.

Before dealing with the two provisions of the next Regulation which are challenged by the amended application, we would refer to the Firman vesting Shri M.K. Vellodi on his appointment as the Chief Minister with powers of legislation, it is dated 1-12-1949, and reads as follows:

Whereas the General Officer Commanding in ; Chief Southern Army has as from the 1st December, 1949 terminated the,

appointment of Major General J.N. Chaudary, O.B.E., to loaf the Military Governor for the Hyderabad Stated and whereas it is necessary to make other arrangements for the administration of the State as from the said date; Now, therefore, I hereby appoint as from the said date Mr. M.K. Vellodi, C.I.K., I.C.S., to be my Chief Minister and...further direct that all the powers of administration including powers of legislation, vested in the Military Governor before the said date are exercisable by the Chief Minister.

In exercise of this legislative power, which like that of the Military Governor, is uncontrolled by any limitations, the Chief Minister promulgated the Hyderabad Jagirs (Commutation) Regulation, 1359 F., No. XXV of 1359 F., which came into force on the date of its publication in the Jarida on 25-1-1950. It is clear that this enactment also became a law before the inauguration of the Constitution, which'' is an important circumstance when deciding the constitutionality of its provisions. Section 3 of this Regulation lays down the method of calculation of commutation. It says that the commutation sum for every jagir shall be the sum resulting from the multiplication of the basic annual revenue of the jagir calculated in accordance with Section 4 by the figure specified in the appropriate entry in the second column of the table annexed to the Section. The table contains seven entries giving the basic annual revenues of jagirs with Rs. 2,000 or less to those with more than Rs. 2,00,000. Then against each entry the figures, by which it is to be multiplied, are given which vary from thirty to ten. Thus, the basic revenues of jagirs with Rs. 2,000 or less are to be multiplied by 30 and finally those with Rs. 2,00,000 or more by ten.

We shall now quote the relevant parts of Section 4 of the Regulation as two provisions contained therein are challenged by the amended applications.

4(1). The basic annual revenue of a jagir shall be calculated as follows:

(a) The gross basic sum shall first be ascertained in accordance with Sub-section (2);

(b) In the case of a jamiat jagir the gross basic sum shall be reduced by 20 per cent, and the sum resulting from th''is reduction shall be the net basic sum;

(c) 60 per cent, shall be deducted-

(i) in the caste of a jagir other than a jamiat jagir from the gross basic sum; and

(ii) in the case of a jamiat jagir from that net basic sum and the sum resulting from this deduction shall be the basic annual revenue.

(2) The gross basic sum shall be the average annual gross revenue of the jagir for the ten years opening with the year 1347 F. and ending with the year 1356 F.

Section 6 then says that the commutation sum shall be distributable in like proportions as the net income was being distributed u/s 11 of the Abolition of Jagir Regulation and Section 9 makes the amount inalienable save with the previous sanction of Government and not more than one half liable to attachment in execution of decrees. Section 11 then authorises making of the rules to carry out the purposes of the Regulation.

After the inauguration of the Constitution, both the two Regulations were certified by the President on 25-4-1950, under Article 31(6) of the Constitution, and such a certification was published in the Gazettes of the Centre as well as of this State. Then Articles 31-A and 31-B were added by the Constitution (First Amendment) ''Act of 1951, and both the Regulations are included in the Ninth Schedule to the Constitution. As the Supreme Court had in the case of--Shankari Prasad v. Union of India AIR 1951 SC 458 (E), upheld the constitutionality of the aforesaid amendments, the applications in the forms (originally filed in this Court) had lost all importance. Indeed had the nine Applicants before us not been amended and fresh grounds added they would have been dismissed like other unamended applications of jagirdars filed in this Court. We have to examine the fresh grounds and decide how far they are tenable.

In paragraph 2 of the amended applications it is said that according to Section 4(2) of the Jagir Commutation Regulation the basic annual revenue is to be calculated on the average annual gross revenue of the jagirs for ten years opening with the year 1347P. (1937-38) and ending with the year 1356F., (1946-47). The Applicants complain that as the possession of the jagirs were taken in the month of Aban 1358F. (September 1949) there is no justification for excluding the two Fasli years 1357F. and 1358F. (1947-48 and 1948-49); had these years been included they would have raised the average annual gross revenue and the omission is deliberate in order to reduce the annual average gross revenue with a view to minimise the amount of commutation. For these reasons sub-section is claimed to be a colourable and fraudulent exercise of legislative power.

Then as regards grounds for holding Section 4(1)(c) of the Jagir Commutation Regulation as unconstitutional, paragraphs 5 of the applications allege that the deduction of 60 per cent, bears no relation to the costs of the management of the jagirs by the Applicants; it is a devise to arbitrarily reduce the gross basic annual revenue and so bring down the commutation amount by subtracting a fanciful sum. It has been further claimed that the amounts payable u/s 10 of the Abolition of Jagir Regulation for the rights of management, has not been taken into consideration in fixing the commutation amount as Section 6 of the Jagir Commutation Regulation does not mention Section 10, but refers only Section 11 of the earlier Regulation.

In support of the claim that 60 per cent, deduction is arbitrary with no reasonable relation to the object of fixing commutation, it was argued before us that the Jagir Administrator or his subordinates had data before item of the expenses incurred by each jagirdar in managing these estates, for the possession of the jagirs was taken in September 1949 and such data do not justify so huge a deduction. Moreover documents were filed in several applications to show the deduction of 60 per cent, to be arbitrary and amounted to naked confiscation.

Finally the allegations supporting the prayer for holding Sub-section (4) of Section 6 of the Abolition of Jagirs Regulation to be. void are contained in paragraphs 3 and 4 of the applications and say that prohibiting the Applicants from collecting dues from their jagirs is a bare confiscation without any public purpose behind it and hence void.

It appears to us that these amended appellations are based on the authority of-- The State of Bihar Vs. Sir Kameshwar Singh, , wherein two provisions of the Bihar Land Reforms Act of 1950 were held as unconstitutional by the majority judgments of the Supreme Court and which case was also cited before us on behalf of the Applicants during the hearing of the application. We shall now give the summary of such parts of the majority judgments of the Supreme Court holding the two provisions unconstitutional as are relevant for purposes of these applications.

Mahajan, J. has held that:

(i) The existence of a public purpose is an implied condition of the exercise of compulsory powers of acquisition by the State; the language of Article 31(2) does not expressly make it a condition precedent to acquisition; hence Article 31(4) does not bar the jurisdiction of the Court from enquiring whether the law relating to compulsory acquisition of property is Invalid because the acquisition is not being made for a public purpose;

(ii) The scope of Article 31(4) is limited to the express provisions of Article 31(2). Courts cannot examine either the extent or the adequacy of the provisions of the compensation contained In any law dealing with the acquisition of property compulsorily for public purpose; but the barring provisions do not in any way touch the powers of the Court to see whether the acquisition has been made for public purpose;

(iii) Articles 31-A and 31-B merely place beyond the reach of the Court any enactment dealing with compulsory acquisition of property which may infringe any of the provisions of Part III of the Constitution; therefore Article 13(2) cannot be called in aid to impugn the validity of such statutes.

(iv) The validity of acquisition of arrears of rent has to be decided independently of the acquisition of the estates; it stands on the same footing as the other debts of the Zamindars which it was not the object of the Act, to acquire; the only purpose to support the acquisition of arrears of rent was to raise revenue, to pay compensation to some of the zamindars, whose estates are being taken; this purpose does not fall within public purpose and the provision of acquisition of arrears of rent in Section 4 of the Act is unconstitutional;

(v) Section 23(f) of the Act is similarly unconstitutional, the provisions contained therein constitute a fraud on the Constitution and although in enacting the provisions the legislature purported to exercise its powers under Entry 42 of the legislative List III in Sen. VII of the Constitution, in reality it is a colourable exercise of that power under which a thing has been done which is not contemplated by the Entry at all.

Mukherjea, J., who concurred with the conclusions of Mahajan, J. has found that:

(i) Article 31(4) presupposes the enactment to be the result of a valid exercise of a legislative power conferred by the appropriate entries in the legislative lists;

(ii) Section 4 (b) of the Bihar Land Reforms Act read with the provision of Section 24 of the same Act empowers the Slate Government to appropriate all arrears of rent due to a landlord at a particular time; the only obligation it casts on the Government is to allow 50 per cent, of the same amount; on the face of it the legislative provision purports to have been made in exercise of powers conferred under Entry 36 of List II and 42 of List III of the Seventh Schedule;

(iii) But the real object of the legislation is to deprive a man of his money, which is not ordinarily subject matter of acquisition in exercise of powers of ''eminent domain'' without giving anything in exchange, under the guise of acting under Entry 42 the legislature has in truth and substance nullified its provision.

Chandrasekhara Aiyar J., has also held that under the guise of legislating for acquisition the State cannot confiscate and if it does so the Act to that extent has to be declared unconstitutional and void.

It is clear that their Lordships in the aforesaid judgments were dealing with the constitutionality of an Act which had become law after the inauguration of the Constitution, and proceeded to declare the two provisions void as the acquisition of money under one was not covered by ''public purpose'' and the other was colourable exercise of legislative power contained in Entry 42, List III of Schedule VII of the Constitution. The position is not different as regards the Pull Bench case of--''Malojirao v. State of Madhya Bharat'' AIR 1953 Mad 97 (G), which was also cited before us and where the provisions of the Madhya Bharat (Abolition of Jagirs) Act, No. 27 of 1951, were considered iij light of powers conferred by the Constitution. The aforesaid authorities do curtail the effectiveness of the reliance by the State in its replies on the certification of the two Regulations under Article 31(6) of the Constitution for dismissing the applications. For the provisions in the Bihar Act which are similar to those challenged by the amended applications, have been held by the Supreme Court notwithstanding the President''s assent under Article 31(4) to be void, and it appears to us that the certification under Clause (6), of Article 31 of the Constitution is no better than the assent of the President to a measure under Clause (4) of, Article 31.

The provisions of the two Clauses are similar, and the certification under Clause (6) should also only bar the Courts from enquiring into questions of compensation, which are guaranteed by Clause (2) of Article 31. Thus the enquiry about the provisions being bad for absence of public purpose or in excess of authority given by any of the Entries in Lists II and III in Schedule VII of the Constitution should be open to Courts in, case of a measure certified under Clause (6) of Article 31: like the Act assented ''to under Clause (4) of the j aforesaid article. But the crucial question in'', these cases is whether the two authorities cited by the Applicants cover pre-constitution legislation, where the enacting authorities are not bound by any constitutional limitations, can such legislations be construed as having been passed in. exercise of powers of legislations contained in the'' several entries in the lists contained in Schedule VII of the Constitution, even though the Constitution was not then inaugurated? In other words, will Entry 36 of. List II or Entry 42 of List III be applicable to the powers of the Military Governor or of the Chief Minister on 19-8-1949 or 25-1-1950, when they enacted the impugned provisions of the two Regulations as the delegated legislative authorities under the two Firmans of the Nizam, who was then theoretically absolute. There are authorities of the Supreme Court that the Constitution cannot be interpreted retrospectively, and any enactment inconsistent with its provisions is not void in the sense that it never existed.

In- Janardan Reddy and Others Vs. The State, , it was held that Articles 135 and 136 of the Constitution of India do not cover judgments passed by Courts of this State prior to the inauguration of the Constitution. Then in-- Keshavan Madhava Menon Vs. The State of Bombay, , the broad proposition was laid down by the majority of the judgments that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation and this rule of interpretation should be applied for the purpose of interpreting our Constitution.

Similarly in- D.K. Nabhirajiah Vs. The State of Mysore and Others, , it was held that, as the Constitution came into force after the impugned order was made, it could not be held) invalid on the ground of its infringing Article 31(2) or Article 19(1)(f) and the fact of dispossession being after the Constitution made no difference'' as it was mere consequence of the earlier valid* order. We have also the case of-- Syed Qasim Razvi Vs. The State of Hyderabad and Others, , that no exception should be taken to the Special Tribunal taking cognizance of the case under an order of the Military Governor when this happened long before the advent of the Constitution.

Similarly, in- Habeeb Mohamed Vs. The State of Hyderabad, , it has been observed that the Constitution has no retrospective effect and even if the law be discriminatory it must be held to be valid for all past transactions and for enforcements of rights and liabilities, which had accrued before the coming into force of the Constitution. We are, therefore, of the opinion that Article 246 of the Constitution should be similarly construed, and in deciding upon the constitutionality of the two impugned Regulations we are to protect ourselves to the time when these two Regulations were enacted.

It cannot also be denied that there is marked difference between an enacting authority, whose legislative power is uncontrolled, and Legislatures under written Constitutions with powers circumscribed by the various written constitutional provisions. Then there is no denying the fact that on the dates the impugned Regulations were passed, the enacting power of the Nizam was uncontrolled by any written limitations. Nor the two Firmans conferring authorities on the Military Governor or the Chief Minister to pass laws, which have been quoted earlier in this judgment, were in any way circumscribed. The legal consequences of (legislations by) such an uncontrolled authority as compared with the Legislatures under written constitutions have been given by the Supreme Court in reference under Article 143 of the Constitution of India, which is reported in--''In re, Article 143, Constitution of India & Delhi Laws Act (1912)'' AIR 1951 SC 332 (M).

Kania C.J. at pp. 335-330 of the journal has observed:

Such a legislative body which is supreme, has thus certain principal characteristics. It is improper to use the words constitutional in respect of laws passed by such a sovereign body. The question of constitutionality can arise only if there is some touch-stone by which the question could be decided. In respect of a sovereign body like the British Parliament there is no touch-stone. They are all laws and there is no distinction in the laws passed by the Parliament as constitutional or other laws. Such laws are changed by the same body with the same case as any other law. What follows from this is that no Court or authority has any right to pronounce that any Act of Parliament is unconstitutional.

Then Patanjali Sastri J., as he then was, has at pp. 362-363 said:

It is now a common place of constitutional law that a legislature created by a written constitution must act within the ambits of its powers as defined by the Constitution and subject to the limitations prescribed thereby, and that every legislative Act done contrary to the provisions of the Constitution is void. In England no such problem can arise as there is no constitutional limitation on the powers of Parliament which in the eye of law is sovereign and supreme.

So also Mahajan J. at pp. 371, 372 opined:

The Parliament being supreme and its powers-being unlimited it did what it thought was right. The doctrine of ultra vires has no root whatever in a country where the doctrine of supremacy of Parliament holds the field. The sovereignty of Parliament is an idea fundamentally inconsistent with the notions which govern inflexible & rigid constitutions existing in countries which have adopted any scheme of representative-Government....

The Parliament being a legal omnipotent despot apart from being a legislature... it can in exercise of its sovereign power delegated its legislative function or even create new bodies conferring on them power to make laws.; The power of delegation is not necessarily implicit in its powers to make laws. But it may; well be implicit in its omnipotence as an absolute sovereign. Whether it exercises its powers, 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 touch-stone of judicial scrutiny as Court of justice in England cannot enquire into it.

Mukherjea J. at p. 396 has said:

But the validity or invalidity of a delegation of legislative power by the British Parliament is. not and cannot be a constitutional question at all in the United Kingdom, for the Parliament being the omnipotent sovereign is legally competent to do anything it likes and no objection to the constitutionality of its acts can be raised in a Court of law.

Also Das J. at p. 409 of the Journal has observed:

Parliament being supreme and its power to legislate being unlimited there is nothing to-prevent Parliament from delegating its legislative power to the executive officers or other subordinate bodies.

We have given the aforesaid quotations to show that wherever the legislating authority is, absolute and in the quotations it happened to be English Parliament, the laws enacted by such: authority are accepted by Courts of law as valid,; on the ground that there are no legal limitations to serve as touch-stone for ascertaining its constitutionality. Moreover, the delegation by such authority of its legislative functions is equally; immune from judicial enquiry. It, therefore, follows that both the Military Governor and the Chief Minister on the dates they enacted the impugned provisions of the two Regulations were; uncontrolled legislating authority and none of the provisions of the two Regulations on the, dates they were enacted, could be challenged on the grounds that they were without public purpose, I naked confiscation or in excess of powers.

The next question that arises is whether these provisions are prospective so as to render them unconstitutional under the Constitution. W& have pointed earlier in this judgment that u/s 6(1) of the Abolition of the Jagir Regulation all jagirs were included in the ''diwani'', the result being the merger of these tenures in the superior title of the State as the landlord and with the result that all rights of persons ''qua'' such tenure-holders, ceased on the date of the Regulation became operative except such rights as were saved by it. Consequently the rights to recover jagir dues by the Applicants were lost on 15-8-1949, when they ceased to be jagirdars. Thus there is nothing prospective to Sub-section (4) of Section 6 which could become unconstitutional after the inauguration of the Constitution. Similarly, the right to get compensation after the deduction of 60 per cent, on the average annual gross revenue of the jagirs for ten years opening with Fasli year 1347 and ending with Fasli year 1356 became vested in the Applicants on 25-1-1950, the date on which the Jagir Commutation Regulation became operative and the recoveries of these commutation amounts from the Government after deductions of 60 per cent, are consequences of such vesting. Therefore, there are no prospective operations in Sections 4(1)(c) and 4(2) also which can be affected by the inauguration of the Constitution. After all the Applicants have enjoyed the privileges conferred by absolute monarchy. They have had the freedom of their estates being non-attachable without special permission, freedom of getting the estates unless otherwise directed without any debts encumbrances of their ancestors, enjoying the revenue and excise duties which should have gone to the public exchequer and spent for legitimate purposes of the State. They cannot now complain if in exercise of delegated power by the same authority some provisions of law have been enacted which they find somewhat burdensome.

It is mentioned in several places of the (applications that the Jagir Commutation Regulation, because it was passed a day earlier to the inauguration of the Constitution, was a fraud on Constitution. Indeed, the word ''colourable'' has been lavishly used in the two applications. The scope and meaning of the word has been given by the Supreme Court in-- K.C. Gajapati Narayan Deo and Others Vs. The State of Orissa, . It was held there that if the Constitution of a State distributes the legislative powers amongst different bodies which have to act within their respective spheres marked out by specific legislative entries or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the Legislature in a particular case has or has not in respect to the subject-matter of the Statute or in the method of enacting it transgressed the limits of its constitutional powers. Such transgression may be disguised, covert and indirect and it is to this latter class or classes that the expression ''colourable legislation'' has been applied in certain judicial pronouncements.

It is obvious that the use of the words in connection with the legislations by an authority with unlimited enacting power is misconceived and we have shown that the powers of the enacting authorities when the impugned provisions in the two Regulations were passed, were unlimited.

We have not dealt with the merits of the Government reply about the impugned provisions 1 of the two Regulations being reasonable, proper 1 and justified. For it appears to us that the Applicants cases of the aforesaid provisions being unconstitutional fail on the legal ground of the two Regulations having been enacted at a time by persons whose powers were unlimited by any legal qualifications and they are not prospective. Therefore, they cannot be challenged in a Court of law afterwards because the rights and liabilities under them have become vested prior to the inauguration of the Constitution.

We, therefore, dismiss these applications with costs. This judgment will govern all the nine applications. Counsel fee one set fixed at I.G. Rs. 500.

Jaganmohan Reddy, J.

By these nine applications the Applicants have challenged the validity of the Hyderabad (Abolition of Jagirs) Regulation No. 69 of 1359F and the Hyderabad Jagir Commutation Regulation 25 of 1359F which came into force on 15-8-1949 and 25-1-1950 respectively. The Jagir Abolition Regulation inter alia provided for the transfer of Jagirs to Jagir Administrator on an appointed date which was fixed for each of the estate by several notifications and consequently all the Jagirs were taken possession of some time during 4 the course of September, 1949 before the Constitution was promulgated. The Regulation further provides by Section 4 that on the coming into force of the regulation no person shall be appointed to be or recognised as a Jagirdar whether in succession to a deceased Jagirdar or otherwise. The other provisions of the regulations in so faras they are material provided for the Jagirs being enfranchised and included in the Dewani and administered either as part of the District in which they are included or by the Jagir Administrator.

The Jagirdars were prohibited from receiving or recovering any customary or other dues from any tenant or resident of the jagir, and the powers, rights and liabilities in relation to the Jagirs ceased to be exercisable and enforceable by or against the Jagirdar and were to be exercisable and enforceable by or against the Jagir, Administrator. Further, interim maintenance allowances were fixed and were payable to the Jagirdars until such time as the terms of the commutation of Jagirs were determined. I need not advert to the other provisions of the regulation which have been referred to in detail by my learned brother Ansarl. The relevant provisions of the commutation Regulation have also been likewise dealt with by him and I find it unnecessary to reiterate what has already been said in his judgment. It may be, stated that the two aforesaid regulations were certified by the President of the Republic of Indian on 25-4-1950 under Clause 6 of the Article 31 of the Constitution.

Elaborate arguments have been addressed to us to show that inasmuch as the Jagirs have been taken over under the said regulation without prescribing the principle upon which compensation Is to be paid or determined for taking over, the jagirs from the Jagirdars, it is violative of Article 31 and inasmuch as no public purpose is implied in the provision prohibiting the Applicants from collecting their dues from their tenants it is a naked ''confiscation which makes the provision void. Learned Advocate for the Applicants has relied mainly on the authority of The State of Bihar Vs. Sir Kameshwar Singh, . The learned Advocate-General contends with justification that the judgment does not assist the Applicants inasmuch as the legislation which was being considered by the Supreme Court was a post Constitution Legislation while in the instant case the impugned regulations have been passed by an authority competent to make the regulations before the Constitution came into force and consequently being a pre-Constitution measure the provisions of the Constitution do not apply unless they are hit by Article 13.

In the case of-- The State of Bihar Vs. Sir Kameshwar Singh, at p. 270 (F)'' one of the points which fell for determination was whether the provisions of Sections 4(b) and 23(f) of Bihar Land Reforms Act were unconstitutional and void. Section 4(b) of the Act provides that all the arrears of rent including royalties and all cases together with interest if any due thereon for any period prior to the date of vesting which were recoverable in respect of the estates or tenures of the proprietor or a tenure-holder and the recovery of which may not be barred by any law of limitation shall vest in and be recoverable by the estate. Section 23(f) provides for a deduction from the gross assets of costs of works of benefit to the rayats of such estates or tenures at rates varying from four to twelve and a half per cent., the rate of four per cent, being applicable where the gross asset does not exceed Rs. 5,000/- and the rate of twelve and half per cent, being applicable if the gross asset exceeds Rs. 25,000/-.

The matters for decision were (a) whether the amount of compensation was adequate and (b) whether the question of public purpose was justiciable where the act was certified under Clause 4 of the Article 31 of the Constitution. Their Lordships of the Supreme Court held that the question of adequacy of compensation is not justiciable, but on the question whether public purpose was justiciable the views were divergent. Mahajan, Mukherjea and Chandrasekhara Iyer J.J. held that it was, whereas Patanjali Shastri C.J. and Das J. held that it was not.

Patanjali Shastri C.J. at p. 265 observed:

that the objections based on the lack of a public purpose and the, failure to provide for payment of just compensation are barred under Article 31(4) and are also devoid of merits, it becomes unnecessary to consider what is a public purpose and whether the acquisition authorised by the impugned statutes sub serves any public purpose. Nor is it necessary to examine whether the scheme of compensation provided for by the statutes is so illusory as to leave the expropriated owners without any real compensation for loss ?of their property.

He further held at p. 266 that:

If payment of compensation is not a justiciable issue in the case of the impugned statutes, having regard to Articles 31(4), 31-A and 31-B, it is not open to the Court to inquire whether a deduction which results in reducing the compensation is unwarranted and therefore a fraud on the Constitution.

Mahajan J. at p. 273 said:

However repugnant the impugned law may be to our sense of justice, it is not possible for us to examine its contents on the question of quantum of compensation. ...The Courts hands are tied, by the provisions of Article 31(4) and that which has been declared, by the Constitution in clear terms not to be justiciable, cannot be made justiciable in an indirect manner by holding that the same subject-matter which is expressly barred is contained implicitly to some, other entry and therefore open to examination. None of these provisions, however, fetter the power of the Court to inquire into any other matters the cognizance of which is not expressly taken away by the provisions of Clause (4) and Clauses A and B of Article 31. Therefore, the material point for determination is whether the acquisition of the estates is for any public purpose and if it be not so, the law can certainly be held to be unconstitutional.

Similarly, B.K. Mukherjea and Chandrasekhara Aiyar J.J. at pp. 280 and 294-295 respectively held that both the question of compensation and public purpose were justiciable. In the result the majority view was that Section 4(b) and Section 23(f) of the Bihar Land Reforms Act were unconstitutional and void, the former provision for want of a public purpose and the latter provision being a colourable exercise of the power vested in the State under Entry 36 of List II alone or in conjunction with Entry 42 of List III of the 7th Schedule of the Constitution.

In this case also similar arguments were urged before us but as I have already pointed out the only distinction between the case which fell for determination by the Supreme Court and this case is that the former dealt with the constitutionality of an Act passed after the inauguration of the Constitution and raised the question of the legislative competence of the State to pass the impugned Act while the Hyderabad (Abolition, of Jagirs) Regulation and Commutation Law were passed before the Constitution came into force by a legislative authority which had an unfettered legislative competence.

The Nizam, as has been observed in many of the leading judgments of the pre Constitution High Court and the State Judicial Committee, could grant jagirs or take them away. Every grant after the death of a Jagirdar was a fresh grant and the Nizam could grant it to whom he willed although generally he granted it to one of the heirs of the deceased Jagirdar. It is not denied "that if the Nizam wanted to deprive a Jagirdar lie could do so in exercise of his powers as an absolute ruler without paying any compensation whatsoever. Though this was the position, however, after the Police Action H.E.H. the Nizam under pressure of changed and compelling circumstances had to lull in line with the current of public opinion and the changes that were being brought about in the bloodless social and political revolution that, was going on in the rest of India after the advent of Indian Independence when it was proposed to place the sovereignty in the people of India; and governmental power was thenceforth to be exceeded for file greatest good of the greatest number.

In keeping with the spirit of the times H.E.H. the Nizam surrendered to the State his Sarf-e-Khas Jagirs yielding a considerable income through a Firman dated 5-2-1949 which was in the following terms:

As times have changer, I have, keeping in view the requirement of administration in the Sarf-e-Khas and the need for uniformity of standards with the Diwani, entered info certain arrangements whereby the Govt. of the State Will take over control of the Sarf-e-Khas as if it was part of the Diwsui of course, the "Karkhanajats", etc. will remain with me as well as all affairs concerning those of my dependents who have so far been maintained by the Sarf-e-Khas as they are in no way connected with the administration of the Ilaqa.

This was followed up by the promulgation of the Sarf-e-Khas Merger Regulation, No. 41 of 1358 F., on 9-6-1949 which inter alia provided by Section 2 and Sub-section (1) of Section 3 that the Sarf-e-Khas was deemed to have been merged, in the Diwani on 5-2-1049 and that all debts due to and liabilities due by the Sarf-e-Khas on 5-2-1949 shall be deemed to be debts due to and liabilities due by the Government. When the grantor had thus'' surrendered his vast estates, it could not be expected that the Jagirs as such would be allowed to continue in a democratic set up. It cannot be doubted that at that time no fetters were placed on the legislative authority to acquire or appropriate property of any description with or Without compensation whether it be for a public purpose or otherwise. This legislative power was under the Firman of the Nizam referred to by my brother Ansari delegated both to the Military Governor and to Shri M.K. Vellodi Chief Minister who succeeded the Military Governor and consequently both of them were competent to legislate and pass laws and Regulations in the State.

Neither the validity of this delegation or legislative powers by the Nizam nor the competency of the Military Governor or Shri M.K. Vellodi to make the aforesaid regulation can be challenged after what has been held by the Supreme Court in-- Habeeb Mohammad Vs. The State of Hyderabad, . Mahajan J. as he then was dealing with the argument that the Special Judges Regulation 10 of 1359 F. was invalid as it did not receive the assent of H.E.H. the Nizam observed at page 61:

In our opinion there is no substance in this conteh on because the Nizam under a Firman had delegated all his powers of administration including power of legislation to the Military Governor and that being so no further reference to the Nizam was necessary and Military Governor was entitled to issue ordinance in question.

The provisions of the impugned Regutions had taken effect before the Constitution was promulgated, i.e., the Jagirdars were divest of their rights to hold the jagirs which became vested in the State they were entitled to infusing allowances in lieu of commutation and subsequently to the payment of commutation amounts. This and other rights of the jagirdars were detonated by the two aforesaid Regulations prior to the Constitution and I agree with my learned brother An sari that the provisions of the snail Regulations could not be affected by any of the provisions of the Constitution which were prospective.

In the result, I agree with the conclusion arrived at by my brother Ansari in his judgment, which I had the advantage of perusing that neither the impugned Regulations nor any provisions thereof arc void by reason of their being unconstitutional and consequently the nine we applications namely that of (1) Sarwarlal, (2) Dildar Ali, (3) Kanaya Pershad, (4) Nath Rar (5) Yeswant Rao, (6) Ahmed Ali Khan, (7) Sha Sarwar Ali Khan, (8) Mohd. Ali Khan and (sic) Venkat Rao Bakshi, are dismissed with cost Counsel''s fee one set fixed at I.G. Rs. 500/-.