U. Owing Singh and Others vs Ka Nosibon Jyrwa and Another

Sarjoo Prasad, C.J.—The common question which arises in all these cases is whether the Seim of Myliem and his Durbar have jurisdiction to entertain and decide civil litigation between the tribals living in a territory which forms part of the United Khasi and Jaintia Hills District but is an area comprised within the Municipality of Shillong. The question being one of importance I constituted this Special Bench to hear and decide the matter.

Civil Rule No. 188 of 1954:

To illustrate the point, it is necessary to refer briefly to some facts. We may take up Civil Rule No. 188 of 1954 in the first instance. It is an application under Article 227 of the Constitution read with Rule 36 of the Rules for the Administration of Justice in the Khasi and Jaintia Hills District. Of the two petitioners in the case, petitioner U Hur Rynjah claims to be the Longkni and petitioner Ka. Salan Rynjah claims to be the legal heir to the property of late Ka Do and U Stir Rynjah Maulieh.

The disputed properties, amongst others, include houses situate at Laban in Shillong within the United Khasi and Jaintia Hills District, but also falling within the Municipal area and thus within the "Administered Areas" of Shillong. The petitioners allege that after the death of U Sumar and U Stir, U Bujai Rynjah since dead became the Longkni (that is, one who looks after the well being of the clan, performs the religious ceremonies and manages the ancestral properties or the clan) of the family being the eldest maternal uncle.

U Bujai was however, a Christian and could not inherit the properties. The petitioner Ka Salan Rynjah, it is claimed, is the niece of U Bujl Rynjah and being the nearest heir is entiated in the Her name was accordingly mutated in the Shillong Municipality, even during the lifetime of U Bujai Rynjah and at the latter''s direction the tenants also paid rent to her. She thus claims to have both title to and possession over the properties.

In October, 1950, Ka Krishibon Rynjah, the respondent No. 1 to this application, filed a petition against Ka Domai Pakma, respondent No. 2, who was living as the wife of U Bnjai Rynjah at the time of his death, claiming the houses in question. The petition was filed before the Seim of Myliem and his Durbar, and registered as Miscellaneous Suit No. 14 of 1950. Notice was issued upon Ka Domai Pokma who appeared before the Seim and his Durbar claimed the property for herself.

The petitioner Ka Salan in the meantime had instituted proceedings for recovery of rent against the tenants before the Additional Deputy Commissioner of Shillong. This was Political Revision Case No. 5 (S) of 1950. The Additional Deputy Commissioner directed that the petitioner should apply to be made a party to the suit pending before the Siem of Myliem and his Durbar, between the respondents 1 and 2 inter se.

Accordingly, in April, 1951 the petitioners were added as party defendants in Misc. Case No. 14 of 1950 before the Seim and his Durbar and they filed their written statement in which they asserted their claim as legal heir. In the course of the said proceeding on 29-8-1951 the Seim and his Durbar passed an ex parte order appointing U Hodri Singh Myntri as receiver to manage the disputed properties and directing the petitioner Ka Salan Rynjah to deposit all rents received by her since 1946 and further restraining her from collecting rents from the tenants of the said holding with effect from 1-9-1951.

The petitioners appealed against that order to the Additional Deputy Commissioner of Shillong in which they also submitted that the said officer had no jurisdiction to try the case. The Additional Deputy Commissioner by his order dated 16-4-1953 passed in Misc. Political Appeal Case No. 8(S) of 1951 held that the property in dispute fell within the Shillong Municipality and was therefore evidently outside the jurisdiction of the Court of the Seim within the meaning of the proviso to paragraph 20 of the Sixth Schedule to the Constitution read with paragraph 4 thereof. He therefore, held that the Sieuvs Court was not competent to try the case.

Against the said order the respondent Ka Domai Pakma moved this Court under Rule 36 of the Rules for the Administration of Justice. The matter was disposed of by Delta, J. by his order dated 9-12-1953. The learned Judge set aside the order of the learned Additional Deputy Commissioner directing that the question of juridsiction should be raised and decided by the Court whore the suit had been instituted.

In other words, he directed that the Seim of Myliem and his Durbar should consider this question of jurisdiction and decide it at the outset. The point was accordingly raised by the petitioners before the Siem and his Durbar, but the Siem refused to entertain the plea and by his order dated 12-10-1954 directed that the case should proceed. The Siem and his Durbar also maintained the order appointing the receiver for the disputed properties. The petitioners then obtained the present rule against the above order Of the Siem.

In issuing the rule this Court also directed further proceedings to be stayed pending disposal of the rule. It is alleged that in spite of the order-directing stay of further proceedings the Siem and his Durbar proceeded to issue Parwanas against the petitioners directing them to refrain from doing certain things, which they complain is in violation and contempt of the order of this Court. Civil Rule No. 17 of 1955 relates to this complaint.

On the above facts it is contended by the petitioners that the Siem and his Durbar have no jurisdiction to entertain the suit in respect of the claim to the disputed properties which lie within the Laban Municipal area of Shillong. Whatever jurisdiction the Siem and his Durbar might have possessed to adjudicate civil disputes in the municipal area at some earlier stage, has now completely disappeared specially after the present Constitution of India came into force

It is contended that even before the Constitution'' of India the Siem and his Durbar had lost jurisdiction to try civil suits in the area which fell within the Municipality of Shillong although forming part of the Khasi Hills District. We five heard with profit the learned Counsel for the parties. We have also heard at length the learned Advocate-General who was requested to assist us as Amicus Curiae.

The learned Advocate-General, with his usual ability, has unravelled for us with painstaking care the tangleid mass of relevant rules and legislations on the point. We think it right to acknowledge our indebtedness to him and to thank him for his invaluable assistance.

The nature of the Siemship and the authority which it exercised in civil, judicial or administrative matters by and large, is shrouded in medieval history. The Shiemship had its origin in the tribal organization of the Khasis and we do not get much light on the nature of this organization, except what we can have from a few books written and published by some public-spirited members of the Civil Service.

Passages from these books have been referred to by: the learned Counsel for the petitioners and they have been relied upon in earlier decisions as containing more or less an authentic account of the subjects with which they deal. These books give us some insight into the early history of the tribal chiefs and their organizations and may be depended upon safely as affording'' satisfactory data for our conclusions. The earliest of them is a monograph by Major P.R.T. Gurdon entitled "The Khasis", at one time Deputy Commissioner of Eastern Bengal and Assam Commission, and Superintendent of Ethnography in Assam.

This book gives an account of the Khasis, their manners; and customs, their original affinities, their laws and institutions etc. In dealing with the question of State Organization Major Gurdon observes that the Khasi States were formed in. more than one instance, by the voluntary association of villages, or groups of villages; the, head pf the Khasi State was the Siem or Chief. The State was a limited monarchy, the Siem�s Dowers being much circumscribed. According to custom, he could perform no act of any importance without first consulting and obtaining the approval of the Durbar, upon which the State ''Mantris'' sat. This Durbar was not to be confused with the electoral Durbar.

It was an executive council over which the Siem presided, and it also possessed judicial powers. The Siem managed-the State*business through his ''mantris''. In some State there were village headmen, styled Sirdars, who settled cases, collected labour, arid assessed and received for the chief the ''pynsuk'', which may be literally translated as "gratification". The Siem''s principal source of income, however, in all the Khasi States was the toll (Khrong), which he took from those who sold a the markets within his territory.

As the Khasis were commonly traders these tolls were often at the larger markets fairly considerable. The Siem was appointed from the Siem family, there being such a family, in each of the fifteen Khasi states, the most important States being Khyrim, Myliem, Cherra, NongstOin and Nongkhlaw. There were a few other petty States presided over by Lyngdohs, or Wahadadars. The Siem in judicial matters acted as a Judge, the whole body of the Durbar being the jury.

There is another book by Keith Cantlie anor ther member of the Civil Service, at one time the Deputy Commissioner of the Khasi and Jaintia Hills. The book is entitled "Notes on Khasi Law" and Chapter XV paragraph 3 refers to the territorial jurisdiction of the Chiefs of these States. In that connection the author makes use of a quotation from some judgment in a case which arose in 1874 wherein it was observed that the Chiefs in the Khasi Hills States were not territorial sovereigns but elected democratic chiefs, whose authority extended over their subjects and not over the lands.

Properly speaking, these Khasi chiefs could not assert territorial limits, but their jurisdiction exteneied over villages and the boundaries of such localities constituted the confines of their respective rule. By tradition, the Khasis came from the eastern country, now the Jaintia Hills, and spread over the land. As none of the Siems could trace back their ancestry very far, it was thought that they were all of more recent origin than the settlement in the western hills.

Tire author also points out that in recent times a claim has been made by Khasis, who migrate from one State to another, that residence in another State does not bring them under the judicial authority of the Chief of that State and that these claims are very insistent in the town of Shillong, where there is a large body of such persons, who do not in fact submit to the judicial authority of the Siem of Myliem.

Thus it appears that the Siem and his Durbar by virtue of the old tribal organization exercised judicial authority, both civil and criminal in matters affecting the welfare of their subjects, or those over whom they ruled. When the British assumed sovereignty of the land, these, indigenous organisations were not swept away. On the contrary they appear to have taken advantage-of their existence and the authority of these Siems was recognised through Sanads granted by the sovereign power.

A model Sanad is given in chapter XVI of Cantlie''s book. The sanad ratified the appointment of the Siem on his election and made him subject to the orders and control of the Deputy Commissioner of the District of trite Khesi ond Jaintia Hills. Under the terms of the sanad the Deputy Commissioner was competent to decide, any dispute that arose between one Chief and another and the Siem was bound to be implicitly any lawful orders which the Deoutv Commissioner, or other officer authorised on that behalf by the. Local Government might issue to him.

Clause II of the sanad empowered the Slem and required him to adiudicate and decide nil civil cases and all criminal offences, except those punishable under the Indian Penal Code with death, transportation, or imprisonment for five years and upwards, which might arise within the limits of their States in which their subjects alone were concerned.

In regard to the offences excepted above and in regard to civil or criminal cases arising within the limits of their States in which Persons other than their own Khasi subjects might be concerned, the Siems were to report and refer those cases for adjudication to the Deputy Commissioner of the Khasi and Jaintia Hills, or by any other officer appointed by him for that purpose and await his orders.

It is obvious that even on the terms of the Model Sanad, the Siem was amenable to the control of the Deputy Commissioner and obey his lawful orders and in certain matters, both civil and criminal he and his Durbar exercised judicial authority over subjects within the confines of his State. It is perhaps useless at this stage to trace back the history of the judicial powers exercised by these chiefs earlier than what is absolutely necessary for the purpose of deciding these cases.

I agree with the learned Advocate-General that we may examine this question in three different stages: namely, (1) the powers which the Siem and his Durbar exercised during the operation of the Government of India Act 1935; (2) the situation Which arose on the attainment of independence in August, 1947; and (3) the effect of the present Constitution on the judicial authority of the Siem and his Durbar.

Under the Government of India Act of 1935 (26 George 5) the functions of the Crown in its relations with Indian States was exercisable in India by the Crown Representative and the Governor General of India was appointed the Crown Representative for these purposes (vide: Sections 2 and 3 of the Act). The Act envisaged a Federal Constitution consisting of the Governor''s Provinces and acceding Indian States which, however, never came into being; but the Governor General continued to function as Crown Representative in relation to the Indian States.

The Governor General u/s 123 of the Act was further authorised to direct the Governor of a Province to discharge as his agent such functions in relation to Tribal Areas as were specified by him. Besides, under the Act, His Majesty by order in Council could declare certain areas to be "excluded" or "partially excluded areas"; and in the areas so declared the executive authority of a Province was limited by the condition that no Act of the Federal or Provincial Legislature would apply to the area unless the Governor by public notification so directed and in giving the direction with respect to any Act the Governor was entitled to make exceptions or modifications as he thought fit.

The Act also vested the Governor with powers to make, regulations for the peace and good government of those areas which would even exclude and override the operation of existing Acts of the Provincial or Federal Legislature in their application to these areas. The regulations so made by the Governor were subject to the assent of the Governor General (vide Sections 91 and 92 of the Act).

Section 311(i) of the Act which was the interpretation clause defined "British India", "India", "Tribal Areas", "Indian State" and "Ruler" etc. "Tribal Areas" according to the definition meant the areas along the frontiers of India or in Beluchistan which ware not part of the British Indian Provinces or of any Indian or foreign State. Thus in the administration of the Tribal Areas the Governor acted as the agent of the Governor General and within his discretion.

This explanation of the Constitutional background is necessary to understand the legislations or notifications which from time to time came in to being in relation to the Khasi States and the administered areas. The term "Administered Area" compendiously signifies the area of the Khasi State which, although not a part of the British territory as such, fell within the ambit of the municipality or Cantonment.

Under the powers vested in the Governor u/s 6 of the Scheduled Districts Act XIV of 1874, he prescribed rules for the Administration of Justice and Police in the Khasi and Jautia Hills District, cancelling all previous orders on the subject. These rules were published in the local gazette under notification No. 2618-A. P. dated 29-3-1937.

The rules extended to the whole of the British territory of the Khasi and Jaintia Hills District, except Part III thereof, which extended only to so much of the British territory of the Khasi and Jaintia Hills ''as fell outside the limits of Shillong Municipality and Cantonment'' Part III embodied the rules relating to criminal justice. In other words, the part of the rules which related to the administration of Criminal justice had no application to the Municipal and Cantonment area of Shillong.

The civil rules, however, applied to the Khasi'' and Jaintia Hills district without exception, including the Municipal and Cantonment area. Rule 25 of those rules provides that the administration of civil justice in the Khasi and Jaintia Hills is entrusted to the Deputy Commissioner, his Assistants, Sardars and Dolois and other chief village authorities. Rule 26 enacts that Sardars and Dolois and other chief village authorities may be recognised by the Deputy Commissioner by sanad under his signature, as competent to try cases without limit as to amount, but subject to certain reservations mentioned in the rule.

By virtue of Rule 26, therefore, the Siem could be recognised by the Deputy Commissioner under sanads granted to him as competent to try civil cases in that District. The above notification applied to the Khasi and Jaintia Hills District but did not of its own force apply to the Khasi States. There was, therefore, another notification No. 164-1B, dated 18-8-1937, issued in exercise of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1937.

By virtue of this notification the Crown Representative was pleased to apply to the Khasi States, ''excluding the portion of the town of Shillong which was not British territory'', the enactment and rules snecified in the Schedule thereto annexed: and item No. 2 in the Schedule is the Rules relating to criminal justice as contained in Section III and Rules relating to civil iustice as contained in Section IV of the Rules for the administration of justice and police in the Khasi and Jaintia Hills District alreadv discussed above.

The promulgation of the rules was also subject to a nroviso that the said enactment and rules should apply only to such cases as the Khasi Chiefs were not empowered to adjudicate and decide under and sanad or grant. There was a similar notification of the same date humbered as 165-1B for the application of enactments to, and for exercise of jurisdiction, within, ''the Shillong administered areas'', that lis to say, ''all areas outside British India in which the Municipal Board of Shillong or the Cantonment Authority of Shillong for the time, being exercised jurisdiction'' by virtue of any notification, under the Indian (Foreign Jurisdiction) Order in Council, 1902.

By virtue of this notification, Rules relating to civil justice as contained in Section IV of the rules for the Administration of Justice and Police were made applicable to this area and the application of the rules was again subject to the proviso that the said enactments and rules should apply only to such cases as the Khasi Chiefs concerned were not empowered to adjudicate and decide under any sanad or grant. These notifications complement and supplement each other.

The first notification No. 164-1B applied to the Khasi states ''excluding the portion of the town of Shillong which was not British territory'' whereas the second notification No. 165-1B was in respect of the ''Shillong Administered Areas, in which the Municipal Board of Shillong or the Cantonment authority exercised jurisdiction''.

By virtue of these notifications the application of the Rules relating to criminal and civil justice was made applicable to the Khasi State: in general, barring the Municipal and Cantonment area; whereas the Rules relating to administration of civil justice alone were made applicable to the municipal and Cantonment area out side the British territory and falling within the Khasi States. Both these notifications made a saving in respect of those cases which under any sanad or grant the Khasi Chief was empowered to adjudicate and decide.

It follows therefore that so far as the Municipal and Cantonment area of Shillong is concerned, which was outside the British area and a part of the Khasi State, the rules relating to civil justice as promulgated by the earlier notification of March, 1937 applied. By virtue of these, ruks the Deputy Commissioner could authorise by grant of sanad the Siem and his Durbar to decide civil dispute between. Khasis in the "Administered Area".

The rules per se did not confer any judicial powers on the Siem and his Durbar unless this power was conferred upon him and recognised by the Deputy Commissioner through the grant of Sanad. There is no such Sanad produced in this case. Reliance is, however, placed by Mr. Ghose for the petitioners on the savings made in the rules promulgated by the Crown Representative under which it was declared that the rules would apply only to such cases as the Khasi Chiefs were not empowered to adjudicate.

It is argued that this presupposes that the Chiefs had some judicial power which the rules preserved and recognized. It is to be noticed, however, that even these savings did not contemplate that such powers were enjoyed as a matter of course by these Chiefs; whatever judicial functions they discharged, they did so under Sanads or -grants and in the absence of any such Sanad either by the Deputy Commissioner or by the Crown Representative and his agent, there could be no presumption that judicial powers were enjoyed by these Chiefs in respect of the "Administered Areas" either in civil or criminal matters.

Even if we make such a presumption on the strength of the Model Sanad mentioned in Cantlie�s book, the judicial power of the Chief was confined to his own subjects; and if for any reason, the Sanad or grant lapsed, the judicial power under the grant also lapsed along with it and the Siem and his Durbar would then become functus officio and would be unable to fall back upon the above rules of 1937 for the purpose of rehabilitating their judicial functions. This question, therefore, brings us to the next stage when the Dominion of India was created.

With the establishment of the Dominion of India with effect from 15-8-1947, His Majesty''s Government ceased to have any responsibility as respects the Government of any of the territories which immediately before that day were included in British India. Similarly, the suzerainty of his Majesty over the. Indian States also lapsed, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the Rulers of Indian States; and so also did all treaties or agreements in force at the date of the passing of this Act between His Majesty and any persons having, authority in the tribal areas, subject to just exceptions.

Section 7 of the Indian Independence Act provides for this. The effect, therefore, was that any Sanads, grants or treaties recognised or entered into by His Majesty''s Government or on its behalf ceased to have any effect or operation after the passing of the Indian, Independence Act and the Constitution of the Dominion of India. But it is common knowledge that about this period the States in anticipation of the impending political changes, were anxious to come to an understanding with the Dominion of India about the preservation of their rights and privileges.

The smaller States banded themselves into a federation in order to be able to negotiate conveniently with the ruling power so as to enter into treaties or agreements with them either individually or collectively through their federations. It appears that the Khasi Chiefs also in this area formed a federation of their own and acceded to the Dominion of India subject to the provisions of an agreement. The accession of the Indian States to the Dominion of India was the initial phase of the process of fitting them in the Constitutional structure.

The integration of the States did not follow a uniform pattern in all cases. Merger of States in the provinces geographically contiguous to them was one form of integration; the second was the conversion of states into centrally administered areas; and the third the integration of their territories to create new viable units known as Unions of States. Each of these forms has been adopted according to size, geography and other factors relating to each State or group of States. The White Paper on Indian States, issued by the Government of India, Ministry of States says that the Khasi Hill States on the north-east of India were not affected by the process of integration until the inauguration of the new Constitution. These. States were for the most part occupied by tribal people and their Rulers were designated as Siems. The succession to the gaddi was not in all cases hereditary; the new Siem was generally elected by the people. Before. 15-8-1947, the relations of the Crown Representative (Governor General) with the Khasi Hill States were conducted through the Governor of Assam.

In practice the administration of the Hill States was in a great measure assimilated to that of the Province of Assam partly by the application of the British Indian laws under the Foreign Jurisdiction Order in Council and partly by administrative measures adopted with the concurrence of the Khasi Chiefs. As I said the accession of the Khasi Hills States to the Dominion of India was subject to the provisions of an agreement. The Instrument of Accession (Appendix XXV) empowered the Dominion Legislature to make laws for the Khasi States in respect of any matter.

The Agreement (Appendix XXVI) which formed part of the Instrument of Accession, provided inter alia for unified legislation on subjects of common interest to Assam and the Khasi Hill States. Constitutionally, therefore, I hi; position of the Khasi Hill States Federation approximated to that of a Chief Commissioner''s Province. One solution for these areas was to merge them outright with the surrounding Province of Assam.

It was, however, considered desirable to preserve some of the tribal traditions and customs of the Khasi States. Accordingly under the Constitution of India the Khasi States have been included in the Sixth Schedule along with Assam tribal area''s. According to the provisions of this Schedule a large measure of local autonomy has been conceded to the District Councils in the tribal areas, and with the coming into force of the Constitution of India, the Khasi Hill States along with the adjoining tribal district of Assam known as ''Jaintia Hill District'' have been constituted into a separate autonomous district of Assam known as ''United Khasi-Jaintia Hills District'' (vide White Paper).

These observations in the White Paper are truly reflected in the provisions of the Constitution. One of the important consequences of the adoption of the Constitution is the completion of the process of territorial integration and with the inauguration of the Constitution the merged States lost all vestiges of existence as separate entities, except to the extent that their existence or authority was preserved by the Constitution itself.

The Constitution provides for the administration of the Khasi Hill States as part of Assam in accordance with the special provisions relating to tribal areas. But before we go to the Constitution it would be necessary to refer to some of the notifications and legislations during the transitional period on the attainment of Independence. The Instrument of Accession is dated 7th of August, 1948, signed by the Siems of the Khasi Hill States and accepted by the Governor General on behalf of the Dominion of India.

The terms of the Agreement provide that the judicial authority then exercised by the State Courts in respect of Khasis would be maintained. Before the accession, however, there were two notifications issued by the Government of India; one notification, No. 165-1B dated the 16th March, 1948 and another No. 166-1B of the same date. These notifications were mutatis mutandis in the same terms as the earlier notifications Nos. 164-1B and 165-1B of 18th August. 1937 to which I have already referred.

It is to be remembered that these later notifications were issued by the Ministry of States, Government of India in exercise of the powers conferred by Section 4 of the Extra-judicial Provincial Jurisdiction Act 1947 (Act XLVII of 1947). Under the first, notification No. 165-1B dated 16-3-1948 the Government of India was pleased to issue orders for application to the ''Khasi States, excluding the portion of the town of Shillong, which was outside the Province of Assam'', of the enactment and rules specified in the Schedule thereto annexed.

True Indian Penal Code and the rules, relating to criminal justice as contained in Section III and the rules relating to civil justice as contained in Section IV of the rules for the Administration of Police in the Khasi and Jaintia Hills made by the Governor of Assam u/s 6 of the Scheduled Districts Act dated 27-3-1937 were made applicable to this area.

Under the other notification No. 166-1B of the same date the Central Government was pleased to make certain orders for the application of enactments to and for the exorcist of jurisdiction within the Shillong ''Administered Areas'' that is to say, ''all areas outside the Province of Assam in which the Municipal Board of Shillong or the Cantonment Authority of Shillong exercised jurisdiction.

Under the notification, the Indian Penal Code, the Criminal Procedure Code (except the first proviso to Section 188) and the Rules relating to civil, Justice as contained in Section IV of the Rules for the Administration of Justice and Police were applied to the ''Administered Areas of Shillong'' Both these notifications again made an exception; in favour of such cases as the Khasi Chiefs were empowered to adjudicate and decide under any agreement. This time they used the word "agreement" and not Sanad or Grant because all Sanads and grants had ceased to be operative and the, anticipated agreement which formed a part of the Instrument of Accession did not come into being until 7-8-1948.

The saving proviso therefore was of no consequence whatsoever; and was probably retained just in line with similar provisions in the earlier notifications. As I have discussed earlier these saving provisions did not ipso facto confer any, judicial powers on the Khasi Chiefs and the Agreement of 7th August which followed these notifications did not improve the position either; inasmuch as it merely served to preserve intact the judicial powers then exercised by the State Courts in respect of the Khasis.

An analysis of these rules therefore shows that in the "Administered Areas" of Shillong the Rules for the Administration of Civil Justice as contained in the 1937 notification continued to apply and the Siem and his Durbar by virtue of these Rules had no ex facie authority to administer justice unless so authorised under a Sanad granted by the Deputy Commissioner.

Notification No. 165-1B dated 16th March 1948, which applied to the ''Khasi States, excluding the portion of the town, of Shillong, which was outside the province of Assam'' was eventually superseded by the Khasi Estates Federation Administration of Justice Order dated 16-6-1948. By this time the contemplated accession of the Khasi Estates to the Indian Dominion through a Federation was almost a settled fact, which may have, necessitated the promulgation of the above order. This order had no application to the "Administered. Area" of Shillong.

Under the terms of the said Order which extended to the Khasi States Federation, ''excluding the Shillong Administered Areas'' criminal and civil justice was to be administered by the Court of the Federation, the Subordinate Courts and the States Courts subject to the ultimate supervision and control of the Assam High Court. This order was in turn substituted by a fresh legislation called the Khasi Siemship (Administration of Justice) Order 1950 on 25-1-1950, just prior to the inauguration of the Constitution on the 26th, morning. This order was promulgated by the Governor under powers delegated to him by the Government of India in the Ministry of States. The order came into force at once. It extended to the, areas of the United Khasi and Jaintia Hills District which were known as Khasi States, ''excluding the area of the District comprised within the Municipality of Shillong. The area to which it extended was called "the Khasi Siemship" area.

Under this order the Siem''s Court was duly constituted as a Court to administer Civil and Criminal Justice in those areas. It included also the "Court of the Sardar, Lyngdoh or Wahadadar. The Courts had jurisdiction over Khasis who resided and held land within the locality and also over non-Khasis who voluntarily invoked and submitted to their jurisdiction. When the Constitution came into being this legislation continued to be good law as a "law in force" in those areas at the date of the Constitution by virtue of Article 372 thereof.

We have thus far traced the history of legislations after the attainment of Independence and the inauguration of the Constitution mainly with reference to the Khasi States which later developed into the Khasi and Jaintia Hills Districts, excluding the "Administered Area" and the town of Shillong. A perusal of those notifications and legislations makes it abundantly clear that they made a distinction between the (1) Khasi States; (2) the portion of the Khasi States which fell within the ambit of the Shillong Municipality and the Cantonment area which was otherwise known as the "Administered Area"; and (3) the Shillong town which was British territory.

In other words in the Shillong town itself there were two distinct areas (1) the British Area of the town and (2) the "Administered Area", which actually formed a part of the Khasi States but was also comprised in the Shillong municipality and Cantonment. I shall refer to a few other relevant legislations pertaining to these areas. The first is the Shillong Civil Courts and Laws Act, 1947 (Act 8 of 1947) which extended the application of certain enactments to the British portion of the Shillong town with a view to bring the Administration of Justice in that area in line with that obtaining in the more advanced parts of the Province.

The Act defined "Shillong" as the British portion of the Khasi and Jaintia Hills District other. than that declared to be a "Partially Excluded Area" and the District Judge of the Assam Valley Districts was constituted the principal Civil Court of original jurisdiction in the District of Shillong. The laws enumerated in the Firs! Schedule thereof were extended to that area, while Rules 25 to 41 of the Rules for the Administration of Justice and Police which related to civil justice stood repealed. It means that by this enactment the rules of civil justice were no longer applicable to the town of Shillong with effect from the date of this legislation.

On 1-6-1949, the Governor of Assam in exercise of the powers delegated to him by the Government of India, Ministry of States u/s 3 of the Extra-Provincial Jurisdiction Act 1947. promulgated an Order called the Khasi States (Application of Laws) Order. In this Order the "Shillong Administered Areas" were defined to mean all areas outside the Province of Assam in which the Municipal Board'' of Shillong or the Cantonment Authority of Shillong exercised jurisdiction and within the meaning of the Act and for the purpose of application of those Laws the "Khasi States" was defined to include the Shillong Administered Areas.

The enactments specified in the Second Schedule of the Order were extended to the Khasi States. It will be therefore noticed that in the town Shillong itself while the District Judge had Jurisdiqtion over the Britdsh portion and the ordinary Laws were generally extended to apply to that area, in the "Administered Area" though some of the ordinary Laws applied, by virtue of this Order, civil justice in that area was administered by the Deputy Commissioner and his subordinates u/s IV of the Rules for the Administration of Justice and Police which continued to operate in this area.

Under these rules the Siem could be authorised to administer civil justice" as a village Court, by the grant of a Sanad by the Deputy Commissioner, but otherwise he could not exercise any such authority. The Khasi Siemship Order had no application here. This of course did not preclude the Government from investing the Siem with judicial powers under the ordinary Laws of the land, if they considered him competent for the purpose.

The inauguration of the Constitution changed the face of things to a very large extent. Article 1 of the Constitution declares that India or Bharat shall be a Union of States specified in Parts A, B and C of the First Schedule and the territories of India shall comprise of the territories specified in Part D of the First Schedule and such other territories as may be acquired. The States mentioned in the First Schedule are nine different States, including the State of Assam.

It is further specified therein that the territory of the State of Assam shall comprise the territories which immediately bexore the commencement of the Constitution were comprised in the Province of Assam, the Khasi States and the Assam Tribal Areas, excluding the area on alteration of boundaries. The Khasi States and the Assam Tribal Areas thus became an integral part of the State of Assam.

Indeed it could not be otherwise after the accession of the States to the Indian Dominion. For our present purpose I need not refer to the States in the other parts of the Schedule. Now Article 244(2) enacts that the provisions of the Sixth Schedule shall apply to the administration of the Tribal areas in the State of Assam. This Article occurs in Part X, whereas Part XI of the Constitution deals with the distribution of legislative powers between the Union and the States. Therefore the Constitution embodies a separate provision for the administration of the Tribal areas in the Sixth Schedule.

We must therefore examine this Schedule and its contents. Under this Schedule the Tribal Area in each item of Part A of the table appended to paragraph 20 of the Schedule was constituted an autonomous district and if there were different Scheduled Tribes in an autonomous District the Governor was empowered to divide the areas into autonomous regions. He could also by public notification make changes in the areas and create a new autonomous district.

Part A of the Table appended to paragraph 20 of the Schedule includes The United Khasi and Jaintia Hills District. The rules provide for the constitution of a District Council for each of these autonomous districts. The Council was to be a body corporate, having a perpetual succession and a common seal and entitled to sue and to be sued in its own name, The Administration of the autonomous district was vested in the District Council for such District and the Governor was authorised to make rules for the first constitution of the District Councils. Thereafter these Councils could frame their own rules.

Under paragraph 3 of the Sixth Schedule the District Council for an autonomous district is empowered to frame laws with respect to matters specified in that paragraph, which come into effect with the assent of the Governor. It is however clear from the paragraph that this power of the District Council does not completely take away the power of the State legislature to make laws in respect of certain other matters not specified In that paragraph. In fact, there is an express saving for compulsory acquisition of land, occupied or un-occupied, for public purposes by the Government of Assam in accordance with the law for the time being in force authorising such acquisition.

Paragraph 4 of the Schedule lays down rules for the Administration of Justice in autonomous districts and autonomous regions. It empowers the District or Regional Councils to constitute village councils or courts for the trial of suits and cases between the parties all of whom belong to Scheduled Tribes within such areas, other than suits and cases to which the provisions of sub-paragraph (1) of paragraph 5 of this Schedule apply. It also authorises the District or Regional Councils to appoint suitable persons to be members of such village Councils or presiding officers of such courts.

The District Council under the law is to exercise powers of a Court of appeal in respect of all suits and cases triable by a village council or court constituted under the above provision in the area, and no other court except the High Court or the Supreme Court has jurisdiction over such suits or cases. The District; Council is also authorised under that provision to make rules regarding constitution of village councils and courts and the powers to be exercised by them, the procedure to be followed by village councils or courts in the trial of suits and cases, both in the original and in the appellate stage and for enforcement of decisions and orders of such courts and all other ancillary matters.

Exceptions are, however, made under paragraph 5 in respect of offences punishable with death, transportation for life, or imprisonment for a term of not less than Ave years under the Indian Penal Code or under any other law, for the time being applicable to the district or region. In such cases, the Governor could confer on the District Council or the Regional Council having authority over such district or region or on courts, constituted by such District Council or on any officer appointed in that behalf such powers under the Code of Civil or Criminal Procedure as he deemed appropriate to enable the Council, court or officer to try suits, cases or offences in exercise of the powers so conferred.

The Governor could also withdraw or modify any of the powers so conferred on the District Council, Regional Council, court or officer. It further says that except as expressly provided in this paragraph the CPC and the Code of Criminal Procedure were not to apply to the trial of any suits, cases or offences in an autonomous district or an autonomous region within the meaning of that paragraph.

It is unnecessary to refer to some other provisions in that paragraph relating to the administrative powers of the District Council or the Regional Council. But it is important to refer to paragraph 12 which provides for application of Acts of the Parliament and the State Legislatures to autonomous Districts or autonomous regions.

This paragraph lays down that no Act of the State Legislature in respect of any of the matters specified In paragraph 3 of the Schedule as matters with respect to which a District Council or a Regional Council may make laws shall apply to any autonomous District or Region, unless the District Council for such district by public notification so directs; and in doing so, the district or regional council could make such exceptions or modifications as it thought fit.

It also provides that the Governor by public notification may direct that any Act of the Parliament or of the State Legislature shall not apply to the autonomous District or Region or shall apply to such district or region or any part thereof subject to such exceptions or modifications as may be specified in the notification for that purpose. It follows therefore that Acts of the State Legislature or Acts of Parliament in respect of all matters, not falling within the meaning of paragraph 3 of the Schedule over which the District Council has powers of legislation would apply to this area unless the Governor notified to the contrary or made certain exceptions.

The Sixth Schedule also embodies certain transitional provisions in paragraph 19. It enjoins on the Governor to take steps for the constitution of a District Council for each autonomous district as soon as possible after the commencement of the Constitution; but so long as such a District Council was not constituted the administration of the district remained vested in the Governor and the provisions of that paragraph apply to the administration of the areas within such district.

It is important to bear in mind that under this paragraph no Act of Parliament or of the State Legislature was to apply to such area unless the Governor by public notification so directed and in doing so, the Governor could make just exceptions or modifications. It also empowered the Governor to make regulations for the peace and good Government of any such area and any regulation so made could repeal or amend any Act of Parliament or of the State Legislature or any existing law for the time being applicable to such area.

The Governor could make these directions even with retrospective effect; but the regulations so made had to receive forthwith the assent of the Presidents and until so assented would have no effect. Thus during the transition period the State Laws would have no application to these areas as a matter of course until the Governor applied them by notification; but if a District Council were constituted in the area, the transitional provisions under paragraph 19 would cease to have effect and the provisions of paragraph 12 would have operation subject to the limitations mentioned in that paragraph.

In other words on the constitution of a District Council the State Laws would apply unless notified to the contrary or unless they covered fields over which the District Council could operate under paragraph 3 of the Schedule. In this respect the provision of paragraph 19, during the transitional period is the very antithesis of the provision in paragraph 12. In the former case the Central or State Laws do not apply of their own force until so notified; in the latter they do unless notified to the contrary.

Now paragraph 20 of this Schedule defines the Tribal Areas within the State of Assam as specified in Parts A and B of the table given therein and the United Khasi and Jaintia Hills District according to ''this paragraph comprise the territories which before the commencement of the Constitution were known as the Khasi States and the Khasi and Jaintia Hills District, excluding any areas comprised within the cantonment and municipality of Shillong, but including so much of the area comprised within the municipality of Shillong as formed part of the Khasi State of Myliem.

Thus the part of the Khasi State of Myliem falling within the Municipality of Shillong remained a part of the United Khasi and Jaintia Hills District. But in this context great importance attaches to the proviso added to Clause 2 of paragraph 20 wherein the operation of Clauses (e) and (f) of sub-paragraph 1 of paragraph 3 and that of paragraphs 4, 5 etc. is nevertheless excluded from this area.

It means in other words that District Council does not exercise jurisdiction over the Shillong Municipal area forming part of the District; nor has it any power to administer justice in this area as contemplated by paragraphs 4 and 5 the operation of which is totally excluded. This result inevitably follows from an examination of paragraph 20. The areas specified in Part B of the table attached to the paragraph are not constituted into autonomous districts; and although they are tribal areas within the State of Assam they appear to be the sole responsibility of the Governor, acting in his discretion as the agent of the President.

The Governor may by notification under Clause, 1 of paragraph 18 with the previous approval of the President extend the provisions of Paragraphs 1 to 17 of the Schedule in whole or in part to any area included in Part B. The areas in Part A of the table appended to paragraph 20 are not outside the executive authority of the Government of Assam but the Schedule provides for the constitution of District Councils or Regional Councils to these areas, barring the powers of the State legislature in certain fields of legislation over-writer legislative powers were to be exercised by the District or Regional Councils.

Subject to the limitations aforesaid the authority, of the Parliament as well as that of the Assam Legislative Assembly extend over these areas under the general provisions of Article 245(1) of the Constitution, unless the Governor by notification directs to the contrary.

These provisions make it clear even in the siemship area appertaining to the Shillong Municipal area the District Council has no power to administer justice. It may be pointed out that the District Council has been constituted in respect of the United Khasi and Jaintia Hills District and the District Council has framed rules for the administration of justice in the autonomous district. Under these rules the village court is composed of the Doloi, Sardar, Siem, Rynjah, Lyngdoh, etc.; and these courts are vested with powers to try suits of a civil nature.

The rules are dated the 8th December 1953, and were promulgated with the assent of the Governor. These rules under the proviso to paragraph 20 Sub-paragraph 2 of the Sixth Schedule have no application to the "Administered Area" or the area of the State of Myliem falling within the Shillong Municipality. Thus the Court of the Siem and his Durbar even if functioning under these rules had no jurisdiction to try civil cases in the "Administered area".

I have pointed out earlier that after the Constitution of the District Council the transitional provisions embodied in paragraph 19 ceased to have effect and the provisions of paragraph 12 applied; as such the Acts of Parliament and those of the State Legislature would apply to the "Administered area" unless notified to the contrary. The contention of Mr. Ghose that even after the constitution of the District Council the transitional provisions continued to apply apparently ignores the existence of paragraph 12 of the Schedule.

It therefore appears to me that the powers of the Siem after the Constitution were continued to the Siemship Order or the Rules framed by the District Council constituting the Siem as a village Court. We are thus reduced to the irresistible conclusion that the Siem and his Durbar have no jurisdiction to entertain suits of a civil nature in this area-even between the Tribals. The above deduction inevitably flows from a careful analysis of the legal position; and the Additional Deputy Commissioner, in my opinion; was quite justified in his view that the property in dispute being within the Shillong Municipality was outside the jurisdiction of the Court of the siem and his Dur bar.

It is, however, contended by Mr. Ghose that hitherto the Siem and his Durbar have continued, to administer Civil Justice between tribals in that area as an original court and that in some cases there was tacit recognition of their jurisdiction even by this Court. The fact that in some cases the Siem may have administered Civil Justice in that area may be due to ignorance or misconception of the real situation and acquiescence to his authority by some parties as a tribal Chief.

Mr. Ghose has relied upon some of my observations in '' U Worshon Kharmawphlong v. Ka Jallyni Kharmawphlong'' Civil Revn. No. 22 (H) of 1953, D/- 26-6-1953 (1955 NUC (Assam) 4186 (A), in support of his contention that the Court of the Siem was recognised as a village Court in that area; but the question of its jurisdiction was never raised in that form.

On the contrary it was conceded that the Siem''s Court had jurisdiction and I had no occasion to scrutinise the position. The decision of Deka, J. at'' an earlier stage in this case is also not helpful to Mr. Ghose, because at that stage my learned brother simply observed that the question of jurisdiction should be raised and decided in the first instance by the Court where this suit had been instituted or the claim had been laid.

Incidentally the question arises whether the ordinary courts subordinate to the District Judge will have jurisdiction to entertain Civil Suits in the "Administered Area". The learned Counsel for the petitioner Mr. Ahmed points out that in the town area of Shillong the normal courts function; We may here recall what I observed earlier-that by virtue of the Shillong Civil Courts and Laws Act (Act 8 of 1947) the application of certain enactments was extended to the British portion of the Shillong town with a view to bring the Administration of Justice in that area in line with that obtaining in the advanced parts of the State and the District Judge of the Assam Vally Districts was constituted the principal Civil Court of original jurisdiction.

This Act however had no application to the "Administered Area" and although by the ''Khasi States'' Application of Laws Order (1949) the application of certain enactments specified in the Schedule thereto was extended to this area as also to other Khasi States, the administration of Civil Justice in this area by virtue of the notification No. 166-1B of 36-3-1948 continued to be regulated by the Rules for the Administration of Justice and Police in the Khasi and Jainta Hills District as adopted and modified by the Assam Autonomous District Administration of Justice Regulation 1952.

Mr. Ahmed contends that the situation is somewhat anomalous that while in a part of the town the ordinary Civil Courts exercise jurisdiction, in other part the administration of Civil Justice should still be in the hands of the Deputy Commissioner and his Assistants. He argues that the Rules for the Administration of Civil Justice in this area are hit by Article 14 of the Constitution. These contentions deserve very serious notice, but at present they do not fall to be decided. It is expected that the State Government will look into this matter and set right the anomaly.

For the disposal of these cases it is enough for us to say that the Siem or his Durbar have no authority to administer Civil Justice in this area and therefore all the orders passed by them in these cases are entirely without jurisdiction and have to be quashed as they do purport to affect valuable rights of the petitioners. The application is accordingly allowed and the rule is made absolute. It seems to me that in a case of this nature which presented doubts and difficulties in view of the somewhat complicated nature of the legislations on the point, it would not be desirable to assess any costs against the respondents. Civil Rule No. 17 of 1955.

In Civil Rule No. 17 of 1955 which is a rule for contempt issued against the respondents, we think that there was an error of judgment on the part of the Siem and his Durbar in assuming that a direction prohibiting the petitioners from interfering with the possession of the receiver was permissible. This Court having stayed further proceedings in the matter the Siem and his Durbar would have been well-advised to refrain from taking any action in the matter at the instance of any party to the litigation.

The Siem and his Durbar have shown cause stating that they respected the order of the Court and had no intention to disobey the same. In the circumstances, we accept this explanation and do not think that any further action is necessary, since we have already quashed the order of the Siem and his Durbar appointing the receiver and directing him to take possession of the disputed property. The application therefore fails and is dismissed.

Civil Rule No. 189 (H) of 1953 and Civil Rule No. (H) of 1955:

For the same reasons we think we should also allow Civil Rule No. 189(H) of 1953 and Civil Rule No. 4(H) of 1950 and set aside the orders challenged before us as ultra vires and without jurisdiction. Civil Rule No. 189(H) of 1953 arises out of a Civil dispute between parties who are tribals relating to a holding situated in the Shillong Municipality.

The Siem of Myiem and his Durbar dismissed the plaintiffs suit and on appeal the Additional Deputy Commissioner confirmed the order. It is true that the petitioners in the case themselves submitted to the jurisdiction of the Siem in instituting the suit before him, but when it has been found that the Siem and his Durbar had no jurisdiction at all to try suits of a Civil nature in the "Administered Area", there is no estoppel against the petitioners.

The forum where they filed the suit was no legal forum at all and any order passed by that body is not binding on the petitioners. The orders therefore must be set aside on this ground alone without any reference to the merits of their claim. The petitioners may if so desired, seek their remedies in the appropriate Court. The order of the Additional Deputy Commissioner confirming the order the Siem is equally without jurisdiction

Civil Rule No. 4(H) of 1955 also arises out of a civil suit instituted before the Siem of Myliem by a non-tribal against the petitioner who is a tribal and also a Member of the Siem''s Durbar. At the very outset the petitioner challenged the jurisdiction of the Siem to entertain the claim but his objection was rejected and on appeal the Additional Deputy Commissioner affirmed the order, though with much doubt and reluctance. In disposing of the matter the officer, Mr. C. Lyngdoh observed thus:

What rules will apply to cases which the Siem of Myliem is empowered to adjudicate and decide is nowhere stated. Under what rule or law then can the Deputy Commissioner or Additional Deputy Commissioner admit appeals from the decision of the Siem of Myliem in cases arising within the Administered Area is a question to(sic) which I do not find any answer.

He however, proceeded to deal with the case on merits since the appeal had been admitted and decided it against the petitioner. The learned officer also found that the cause of action for the suit arose within the Shillong administered area. The learned officer has written a fairly considered judgment. We agree with him that notification No. 166-lBdated 16-3-48 as amended by Regulation III of 1952 is in force in the administered area.

But for the reasons already given we do not agree that the Siem has any jurisdiction to try civil cases in the Administered Area unless directly authorised to do so by the State Government or under some grant of Sanad by the Deputy Comr missioner within the meaning" of the Civil Justice Rules. There is nothing unfair or inequitable in interpreting the law as it stands. We accordingly allow the objection of the petitioner who himself is a Mantri of the Siem''s Durbar and hold that the Siem has no jurisdiction to entertain the suit. The orders impugned therefore have to be set aside, and parties relegated to their remedies in appropriate courts.

Parties will bear their own costs of these applications throughout.

Civil Revision No. 189 (H) of 1953.

analogous to Civil Rules Nos. 188/54, 17/55 (Misc.) and 4(H.)/55.

Ram Labhaya, J.

I have had the privilege of reading the judgment of my Lord the Chief Justice. It embodies a masterly exposition of the law, on the question which falls for determination in these cases. It also gives in impressive details the historical background. I entirely agree with his orders but in view of the importance of the question I add a few words in all humility.

Mr. Ghose has claimed that the Siem and his Durbar retain jurisdiction to try suits between tribals which they had under the rules for the administration of justice in the area in question in 1937 and 1948 and the Instrument of Accession and the subsequent integration of the tribal areas including the United Khasi-Jaintia Hills District with the Dominion of India have not adversely affected this jurisdiction. He argued very seriously that by virtue of Regulation III of 1952 the Siem and his Durbar could exercise the same powers as they had under the rules of August) 1937. The area, with which we are concerned formed part of the State of Myliem. It is within the municipal limits of Shillong and lies in what was described as the administered area before the Constitution came into force.

The Indian Independence Act, 1947, took effect from 15-8-1947. Two new Dominions were brought into existence. The consequences of setting up the new Dominion are specified in Section 7 of the Independence Act, 1947. As from the appointed day His Majestry''s Government in the United Kingdom ceased to have responsibility in regard to the Government of any of the territories which immediately before that clay were included in British India.

Clause (c) of Section 7 provided for the lapse of any treaties or agreements in force at the date of the passing of this Act between His Majesty and any persons having authority in the tribal areas, for the termination of any obligations of His Majesty existing at that date to any such persons or with respect to the tribal areas, and for cessation of all powers, rights, authority or jurisdiction exercisable at that date by His Majesty in or in relation to the tribal areas by treaty, grant, usage, sufferance or otherwise.

As all treaties and agreements in force between His Majesty and tribal chiefs ceased to have effect, the tribal chiefs became independent. The effect was also the same in regard to all other Indian States. There was a complete lapse of paramountcy and obligations created by agreements, treaties, all ceased to have effect. The Indian States like British India became independent.

The agreements which related to customs, transit and communications, posts and telegraphs and other such matters. were to continue to have effect, until the provisions in question were denounced by the ruler of the Indian State or person having authority in the tribal areas on the one hand, or by the Dominion or Province or other part thereof concerned on the other hand, or were superseded by subsequent agreements.

The result was that the Dominion of India had no authority or power left in the tribal areas except to the extent that it was saved by the proviso to Clauses (b) and (c) of Section 7 of the Indian Independence Act, 1947. Thus for exercising any power in the States or in the tribal areas fresh agreements became necessary. Instruments of Accession were then obtained from rulers of States. These Instruments of Accession were not all of the same pattern.

Instruments of Accession which provided for the accession of States to the Dominion of India on three subjects namely, defence, external affairs and communications, were accepted from Princes who exercised jurisdiction within their States. Other, States in respect of which the Crown Representative exercised powers and jurisdiction in the states signed Instruments of Accession which provided for the exercise of similar powers and Jurisdiction by the Dominion Government.

The Government of India Act, 1935 as amended: defines in Section 6 what accession of Indian States signifies. An Indian State is to be deemed to have acceded to the Dominion if the Governor General has signified his acceptance of an Instrument of Accession executed by the Ruler thereof whereby the Ruler on behalf of the State

(a) declares that he accedes to the Dominion with the intent that the Governor-General, the Dominion Legislature, the Federal Court and any other Dominion authority established for the purposes of the Dominion shall, by virtue of his Instrument of Accession, but, subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation to the State such functions as may be vested in them by order under this Act; and

(b) assumes the obligation of ensuring that due effect is given within the State to the provisions of this Act so far as they are applicable therein; by virtue of the Instrument of Accession. Clause (2) of Section 3 reserves liberty for the ruler to specify matters which he accepts as matters with respect, to which the Dominion Legislature may make laws for the State, and the limitations, if any, to which the power of the Dominion Legislature to make laws for the State, and the exercise of the executive, authority of the Dominion in the State, are respectively to be subject. It is not necessary to refer'' to other provisions contained in Section 6.

The Khasi States joined in a Federation and this Federation of the Khasi States also acceded to the Dominion of India. The Chiefs of Khasi States including the Chief of Myliem State signed the Instrument of Accession individually as rulers of Khasi States and collectively as members of the Federation. They declared by this Instrument that they 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 shall by virtue of the Instrument of Accession, but subject always to the terms thereof and for purposes only of the Dominion, exercise in relation to the said Khasi States such functions as may be vested in them by or under the Government of India Act, 1935, as for the time being in force in the Dominion of India.

Obligation was also assumed that due effect would be given to the provisions of the Government of India Act within the Khasi States as far as they were applicable by virtue of the Instrument of Accession. By Clause 3 of the Instrument the tribal Chiefs agreed that subject to the provisions of the annexed agreement the Dominion Legislature may make laws for the said Khasi States in respect of any matter.

It is noteworthy that the accession to the Dominion of India was with the intent that the Governor General of India, the Dominion Legislature and the Federal Court and any other Dominion authority may exercise in relation to the Khasi States such functions as may be vested in them subject to the terms of the Instrument, By virtue of this provision the federated territory stood integrated to the Dominion of India.

The authority and the power that the Government of India could exercise in relation to the Khasi territory was the same as in the rest of India. The only qualification is that the power is to be exercised for the purposes of the Dominion, and this is implicit in the Constitution itself. By Clause 2 obligation for the due enforcement of the provisions of the Act in the area was also undertaken. The integration with the Dominion of India was thus complete.

Clause 3 of the Instrument is important. It provides that subject to the provision of the annexed agreement the Dominion Legislature could make laws for the Khasi States in respect of any matter. The annexed agreement provides for the continuance of the existing administrative arrangements between the Dominion of India and the Province of Assam on the one side and the Khasi States on the other till new or modified arrangements have'' been arrived at between the parties concerned. This provision is subject to exceptions relating to judicial and administrative powers including other matters namely, revenue, the unification of the Khasi territory and also legislation for it by the Assam Legislature.

We are concerned mainly with the exception relating to judicial powers. It was agreed that the Federation would setup a competent court to exercise judicial functions formerly vested in the political officer. In matters of customary law there was to be no appeal from the court of Federation. In other cases appeals were provided to the Governor of Assam and later on to the High Court of Assam when established.

The judicial authority exercised by State courts before the accession was to be maintained in respect of Khasis. Provision was also made in respect to non-Khasis, the unification of Khasi States and the conferment on the State courts of powers under the Criminal Procedure Code in the manner specified in the agreement.

It would appear from the terms of the agreement that even under the exceptions all that could be claimed by the Federation of Khasi States taken as a whole was that the judicial authority exercised by State courts before accession in respect of Khasis should be maintained. There was no reservation of the powers flowing from sovereignty in the Federation of the States or in any of the Chiefs composing the Fede:ation.

The State of Mylliem was represented by the Siem of Mylliem who is a party to the Instrument df Accession. Apart from the provisions contained in Clause 2, which specifies the exceptions in regard to judicial powers, there is no other provision in the Instrument of Accession and the agreement annexed under which any claim for any jurisdiction in the Siem and his Durbar may be made. Even this clause does not provide for the maintenance of any judicial authority or jurisdiction in any of the Chiefs who signed the Instrument of Accession, though the power exercised by the State courts in respect of Khasis was to be maintained. This qualification did not detract from the merger of the Stale in the Dominion of India which the Instrument of Accession brought about.

The Government of India Act became applicable to the area and the administration of the area was to be carried on by the Government of India. The effect of the Instrument of Accession stated shortly was that Khasi States were integrated to the Dominion of India for all intents and purposes, though for purposes of administration they constituted a separate State very much like a Chief Commissioner''s Province. The White Paper on Indian States issued by the Government of India (Ministry of States) supports the view. It describes the status of the Khasi Federation in paragraph 113 in the following terms:

The Khasi Hills States had formed a Federation of their own and had both individually and collectively acceded to the Dominion of India subject to the provisions of an Agreement. The Instrument of Accession (Appendix XXV) empowered the Dominion Legislature to make law; for the Khasi States in respect of any matter. The agreement (Appendix XXVI) which formed part of the Instrument of Accession, provided inter alia for unified legislation on subjects of common interest'' to Assam and the Khasi Hill States. Constitutionally therefore the position of the Khasi Hill States Federation approximated to that of a Chief Commissioner''s Province.

The framers of the Constitution treated the territory of the Federation including the entire State of Mylliem as part of the territory of India. According to the Constitution India is a Union of States. Its territory includes territories of all States of the Union vide Article 1 of the Constitution of India. The territories of the States are enumerated in Parts A, B and C of the First Schedule.

Assam is included in Part A of the First Schedule. The territories of the State of Assam comprise the territories which before the commencement of the Constitution were comprised in the Province of Assam, the Khasi States and the Assam Tribal Areas, excepting a strip of territory ceded to Bhutan in 1951. It is clear that the Instrument of Accession was treated as having brought about the merger of the territory of the Federation and it was therefore treated as part of India and included in the State of Assam.

Article 244, the only Article in Part X of the Constitution, deals with Scheduled and Tribal areas. Clause (1) of the Article provides for the administration and control of the scheduled areas in any State comprised in Part A and Part B of the First Schedule other than the State of Assam. By virtue of Clause (2) the provisions of the Sixth Schedule apply to the administration of tribal areas in the State of Assam.

Before 15-8-1947 the relations of the Crown Representative with the Khasi Hill States were conducted through the Governor. The administration of the Hill States was carried on partly by the application of British Indian laws under the Indian (Foreign Jurisdiction) Order in Council and partly by administrative measures adopted with the consent of the Khasi chiefs. The Khasi States had merged.

It was open to the Constituent Assembly to assimilate them completely with the Province of Assam. But in order to preserve some of the tribal traditions and customs of the Khasi states, they were included in the Sixth Schedule along with other tribal areas of Assam. A very large measure of local autonomy has been ceded to the District Councils under the Schedule.

The tribal areas in Assam are specified in Parts A and B of the table appended to paragraph 20 of the Sixth Schedule. The United Khasi and Jaintia Hills District is one of these areas.

The provision contained in paragraph 1 of the Sixth Schedule is that tribal areas in each item of Part A of the table appended to paragraph 20 of the Schedule shall be an autonomous district. The Khasi and Jaintia Hills District thus became entitled to the status of an autonomous district).

Paragraph 2 of the Sixth Schedule deals with the Constitution of District Councils and Regional Councils. Under paragraph 4 the Regional Council for an autonomous region and the district Council for an autonomous district may constitute village councils or courts for the trial of suits in cases between parties all of whom belong to the scheduled tribes within such areas, other than the suits in cases in which the provisions of sub-paragraph (1) of paragraph 5 of the Schedule apply, to the exclusion of any court in the State, and may appoint suitable persons to be members of such village councils or presiding officers of such courts and may also appoint such officers as may be necessary for the administration of laws made under paragraph 3 of the Schedule.

The agreement annexed to the Instrument of Accession provided that the pre-existing authority of the State Courts in respect of Khasis shall be maintained. Paragraph 4 Clause (1) gives full effect to that provision. It provides for the constitution of village councils or courts for trial of certain suits and cases between parties belonging to scheduled tribes within that area and jurisdiction of these courts is made exclusive. When providing for the administration of the tribal areas in Assam -full effect is given to exceptions made in regard to judicial powers.

The District Council for the United Khasi-Jaintia Hills District has been constituted. It has exercised its rule making power and has with the previous approval of the Governor of Assam made rules for the administration of justice in the District, vide Government Notification No. DC/LX/29/53 dt. 18th December, 1953. Chapter II of the rules deals with the constitution of Courts.

Section 4 of Chapter II provides for three classes of courts for the district, namely (1) Village Courts (2) Subordinate District Council Court and Additional Subordinate District Council Court and (3) District; Council Court. The village court is to be composed of the recognized Doloi, Sirdar, Siem Raid (Bhoi), Basan, Lyngdoh, Lyngskor or Headman of the village. The constitution of the village courts is given in Section 5. These rules do not recognize any customary or traditional power of the Siem and his Durbar, though the Siem like Sardars and Dolois is to be the chairman of the village court unless there are more than one in which case the one elected by the village court is to be the chairman.

The village courts constituted under the Regulation derive their authority from the rules made by a competent authority acting under the Constitution in the autonomous District. No Siem or chief may claim any authority except from laws or regulations made by an authority competent to do so under the Constitution. Paragraph 4 of the Schedule under which the courts are constituted by the District Council does not recognize any pre-existing jurisdiction of the Siem in the State of Mylliem or in any other State.

The District Council is to constitute village courts. But these village courts have to be invested with authority to try suits relating to Khasis. There is nothing therefore in the provisions contained in the Sixth Schedule which supports the claim made on behalf of the Siem of Mylliem. The State of Mylliem does not now exist as a separate entity.

Paragraph 20 of the Sixth Schedule to the Constitution provides that the areas specified in Parts A and B of the table appended to it shall be the tribal areas within the State of Assam. Clause (2) of para 20 defines the extent of the United Khasi Jaintia Hills District, It comprises the territories which before the commencement of the Constitution were known as the Khasi States and the Khasi and Jaintia Hills District, excluding any areas for the time being comprised within the cantonment and municipality of Shillong, but including so much of the area comprised within the municipality of Shillong as formed part of the Khasi State of Mylliem.

Laban, the area, with which we are concerned in this cases, though comprised within the Municipality of Shillong, formed part of the Khasi State of Mylliem. The effect of Clause (2) of para 20 is that the area is included in the United Khasi--Jaintia Hills District, though the whole of the cantonment and the rest of the municipal area are outside the district. The inclusion is not for all purposes. Even this area is not within the United Khasi-Jaintia Hills District for certain purposes.

The proviso to Clause (2) of para 20 lays down that for purposes of paras 4 and 5 and some other provisions contained in the Sixth Schedule, no part of the area comprised within the municipality of Shillong shall be deemed to be within the District. The result is that a part of the Khasi State of Mylliem which has been included in the Khasi and Jaintia Hills District notwithstanding that it is within the municipal limits, cannot be treated as part of the United Khasi-Jaintia Hills District for purposes enumerated in the proviso to Clause (2) including paras 4 and 5 of the Schedule which provide for the administration of justice in the autonomous district and regions.

For purposes of these paragraphs the area in question is not included in the United Khasi-Jaintia Hills District. These paragraphs do not apply to it. The effect of the proviso therefore is that no part of the area which formed part of the Khasi State of Mylliem within municipal limits which is included in the Khasi and Jaintia Hills District, forms part of it for purposes of judicial administration.

The State of Assam virtually stands divided into two parts. The tribal areas constitute one part and their administration is to be carried on by the Governor in respect of areas in Part A of the Schedule annexed to para 20 and by the Governor as agent of the President, in regard to areas specified in Part B of that Schedule. Both the President and the Governor in the discharge of their functions with respect to the areas of Part B of the table have to act in their discretion, vide para 18.

The rest of the territories of the State of Assam are in line with other Part A States. The State apparatus for that area is the same as is provided for other Part A States of the Union, There is no third category for any area of the Slate of Assam. The area in question though a part of the United Khasi-Jaintia Hills District to which the provisions of the Sixth Schedule apply, is not within that district for purposes off judicial administration. It therefore is necessarily a portion of the State of Assam which lies outside the area of the Sixth Schedule for this purpose.

The Constitution contains no provision for saving finy jurisdiction that the Siem of Myllienr and his Durbar or for the matter of that any Khasi Chief may have enjoyed under Sanads, grants, or agreements at any time before the Instrument of Accession was signed by the Chiefs of these-States. The contention that the traditional and, customary: powers of the chiefs, whatever they were, survived the Instrument of Accession and. the integration of Khasi territory brought about by the Constitution is not sound and must therefore be repelled,

We have now to discover what law is applicable to the area with which we are concerned in this case, since it is no part of the United Khasi-Jaintia Hills District for purposes of judicial administration. Mr. Ghose has argued that Regulation III of 1952 is still in force so far as this area is concerned. This regulation was made by the Governor in the exercise of powers conferred on him by para 19(1)(b) of the Sixth Schedule. Paragraph 19 provides for transitional provisions.

The Governor is charged with the duty of. taking steps for the constitution of a District Council for each autonomous district in the State under the Schedule. It further provides that until the District Council is constituted, the administration of the District vests in the Governor and the provisions contained in para 19 alone shall apply instead of the foregoing provisions of the Sixth Schedule. Clause (1)(b) of para 19 authorises the Governor to make regulations for the peace and good government in accordance with the provisions contained in the paragraph.

The Governor when acting under para 19 could act only so far as the tribal areas specified in the Schedule are concerned. The area comprised within the Municipality of Shillong which once formed part of the State of Mylliem was not made part of the United Khasi-Jaintia Hills District for purposes of judicial administration. No law relating the administration of justice in this area could be made by the Governor functioning under para 19 of the Schedule.

The Governor could not legislate for the area outside the Hill District under this paragraph. This could not be the intention, of the framers of the Constitution. No powers for the Chief may therefore be claimed on the strength of the provisions contained in Regulation III of 1952 which was made mainly for purposes of the administration of justice in the autonomous districts during the period of transition.

The administration of the Autonomous, Districts could be carried on by the Governor under para 19 till a District Council was constituted. Any regulation issued under para 19 could have effect till a District Council was constituted. The District Council for the United Khasi and Juintia Hills District has already been constituted. It has also framed rules in the exercise of powers, conferred under sub-para (4) of para 4 of the Sixth Schedule to the Constitution of India.

These rules apply to the whole of the United Khasi-Jaintia Autonomous District excluding sc-much of the area thereof as is for the time being comprised within the Municipality of Shillong. They provide for the administration of justice in the United Khasi and Jaintia Hills District. Since the District Council had no jurisdiction to provide for judicial administration in the area of the United District which fell within the municipality of Shillong, the rules apply to the entire area of the District excepting that which falls within the municipal limits of Shillong town.

Regulation No. III of 1952 therefore stands replaced by the rules framed by the District Council. It could have force and effect in the Hill Districts till the constitution of the District Council and not after.

Section 58 of the Rules of 1953 provides for the repeal of the provisions in the Khasi States (Administration of Justice) Order, 1950 published in Notification No. SK 149/49/8 dated 25-1-1950, the Rules for the Administration of Justice and Police in the Khasi and Jaintia Hills published in the Government of Assam''s Notification No. 2618 AP dated 29-3-1937 and the Assam Autonomous Districts (Administration of Justice) Regulation, 1952 (Regulation No. 3 of 1952) published in the Government of Assam''s Notification No. TAD/ R/ll/51/106 dated 3-4-1952. These rules and regulations were repealed in so far as they related to matters dealt with in the rules of the District Council.

It is true that the repeal of the Regulation was limited to matters dealt with by the rules of the District Council. But this was necessary because the regulation had to remain in force in regard to other Hill Districts of Part A of the table annexed to papa 20 until District Councils were constituted there. The Regulation could be repealed by the District Council of the United Khasi-Jaintia Hills only to the extent that it applied to its territory.

Assuming that the Regulation is not repealed in its application to what was called the administered area outside the t�rritory of the District Council for purposes of judicial administration we have to discover if the powers claimed for the Siem of Mylliem and his Durbar are reserved for him so far as this area is concerned. Regulation No. III gave effect to thenotification No. 166-13 of 16-3-1948 by adopting it subject to certain amendments. An important amendment was made in the rules.

The words "under any agreement" occurring at) the end of the first proviso to Part I of the rules of 1948 were omitted. The rules of 16-3-1948 provided by the first proviso as follows:

Provided, firstly, that the said enactments and rules shall apply only to such cases as the Khasi Chief concerned is not empowered to adjudicate and decide under any agreement." The last words of the proviso "under any agreement" were omitted when the rules were adopted by Regulation 3 of 1952. What remained then was that the rules made applicable to the administered area applied only to cases which the Khasi Chief was not empowered to adjudicate and decide. Power under Sanads, or agreements was not recognized in the rules as applied to the administered area by Regulation 3 of 1952. This Regulation therefore is not of any assistance to the Siem of Mylliem even if it were applicable.

The Governor acting under para 19 had no power to provide for the judicial administration of that part of the administered area which was kept out of it for this purpose. It was not an area which formed part of the United Khasi-Jaihtia Hills Autonomous District for purposes of judicial administration.

The learned Advocate General has argued that by virtue of notification No. 166-l.B. dated 16-3-1948 the rules relating to civil justice as contained in Section 4 of the Rules for the Administration of Justice and Police in the Khasi and Jaintia Hills made by the Governor u/s 6, Scheduled Districts Act, 1874 and published with notification No. 2G18AP dated 29-3-1937 of the Assam Government still apply.

But he contends that even under these rules the Siem of Mylliem does not possess the jurisdiction which is claimed for him. His argument is that the notification of 16-3-1948 whittled down the power of the Khasi Chief by providing that the rules made applicable to the administered area applied to cases which the Khasi Chief concerned was not empowered to adjudicate and decide under any agreement. The relevant provision in the rules of 1937 was rule No. 25, which provided that-the administration of civil justice in the Khasi and Jaintia Hills is entrusted to the Deputy Commissioner, his Assistants, Sardars and Dolois and other chiefvillage authorities. Rule 26 provided that

"Sardars and dolois and other chief village authorities may be recognized by the Deputy Commissioner by Sanad under his signature as competent to try cases...

The change effected in 1948 was that? the rules were made applicable to all cases except such cases which the chief alone could adjudicate and decide under any agreement. The change obviously was necessitated by constitutional changes that had occurred. India had become independent. The Instrument of Accession though signed by the Federation of the Khasi Chiefs, later the provision in favour of Khasi Chief in regard to the administered area was only to the extent that his power was saved or reserved under any agreement.

The only operative agreement between the Siem of Mylliem and the Dominion of India is the Instrument of Accession and the question again turns on its interpretation., I have dealt with this aspect of the matter above and my conclusion is that the Instrument of Accession and the agreement'' annexed to it contain no reservation of power in the Chief of Mylliem State. The exceptions in the agreement apply to all the Chiefs of the Khasi States. No single State is dealt with separately and no distinctive treatment is accorded to any state.

The Chief of the State of Mylliem cannot on the strength of this agreement ask for any privileged position and Mr. Ghose, his learned Counsel has not preferred any such claim on the basis of the terms of the Instrument of Accession. Such a claim would obviously be futile. The State of Mylliem is part of the United Khasi-Jaintia Hills District. The rales of the District Council apply to the entire territory of the Khasi Hills excepting that part which fell within the municipal area of Shillong. These rules do not give the Siem of Mylliem the power which is being claimed for him in the municipal area which once formed part of the State.

The agreement annexed to the Instrument of Accession could not be utilised for reservation of an exclusive jurisdiction in the Siem of Mylliem and his Durbar in a small part of his State which for judicial administration has not been included in the United Khasi-Jaintia Hills District which has not been reserved for him in the rest of the State of Mylliem.

The exclusion of this small area from the United Khasi and Jaintia Hills Disttrict was evidently for the purpose that it may be assimilated and placed on a level with the rest of the town of Shillong which by Act 8 of 1947 (the Shillong Civil Courts and Laws Act, 1947), attained the status of a district and had several important Acts applied to it which were in force in the State of Assam outside the tribal areas.

The Stem and his Durbar do not possess the jurisdiction claimed for them on the basis of any agreement with the Dominion of India and the rules of 1948 do not contemplate jurisdiction on any other basis. The power and authority claimed for the Chief of Mylliem must be spelt out from the provisions contained in the Constitution or enactments and regulations made by competent authorities which are still in force. But it follows from what has been said above that it is not possible to do so.

Mr. Ahmed contended that the rules of 1948 had ceased to have effect. The area in question is part of the State of Assam and ordinary laws of the State apply to it. He argues that ordinary laws have been applicable by operation of the Constitution. Mr. Lahiri''s view was that this result could not follow automatically. Article 372 of the Constitution saved existing laws.

Rules of 1848 could not be wiped out of existence when the Constitution came into force. They would hold the field till such time as they are modified or superseded by competent authority. This no doubt is the effect of Article 372. But Mr. Ahmed has also challenged the validity of the rules on the ground that they offend against the provisions of Article 14 of the Constitution. He points out that in the town of Shillong two distinct sets'' of laws cannot be employed for purposes of judicial administration.

The area in question is part of the Municipality of Shillong and cannot now be administered under archaic rules when the rest of the town of Shillong is being administered under the ordinary laws of the State. This is a serious contention. Speaking strictly it is not necessary to pronounce on this question for the decision of these cases. It is enough for the purpose of these cases to say that the Siem and his Durbar have no jurisdiction. The party seeking redress must go to a competent court for it. I entirely agree with observation of my Lord the Chief Justice on this aspect of the matter.

Deka, J.

I fully agree with my Lord the Chief Justice. In my earlier decision I purposely kept the point as Jurisdiction open so that it might be agitated in the first Court with the hope that some fresh and useful materials might come to light, but unfortunately nothing helpful is obtained from the first Court''s order on the point. Construing the legal provisions and the Constitution as my Lord the Chief Justice has so elaborately done, I quite agree there is no basis to hold that the Siem and his Durbar has any jurisdiction to try civil suits in the "administered area" of Shillong.

By The Court:

The point involved in these cases is one of sufficient importance. We, therefore, certify that these are fit cases for appeal to the Supreme Court.