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Judgment
Teja Singh, C.J.—The following question has been referred to the Full Bench:
Does not a Civil Court have jurisdiction to determine whether it was within the competence of the Rulers of the erstwhile Patiala State to give the land that was the private property of the Plaintiffs to the Gurdwara Committee by an executive order.
In order to be able to appreciate the significance of the question it appears to be desirable to refer briefly to the facts of the case out of which the reference has arisen. The suit property consists of 542 bighas and 4 biswas of agricultural land and a residential house situate within the boundaries of village Gaga. The Plaintiffs brought a suit for a declaration that the suit property with the exception of the Muafi of land-revenue belonged to and was in their possession. They also prayed for a permanent injunction that the defendants. Who claimed to be members of the Managing Committee of Gurdawara Nawin Padshahi of Gaga be restrained from interfering with their possession.
They alleged that they were the owners of the suit property and had been in possession thereof as such but by virtue of an order issued by the Head of the Deorhi Mualla of His Highness the Maharaja of Patiala it had been mutated in the revenue papers in the name of the Gurdwara, that the defendants who were described as defendants No. 2 in the plaint had been appointed members of the Managing Committee of the Gurdwara, that the possession had been taken away from the Plaintiff''s and had been given to the said defendants on 20-3-2000, that a few days later i.e., on-2-4-2000, the Plaintiffs took back the possession from the defts. on which they were prosecuted for criminal trespass but were acquitted by the High Court, & that since the said defts. were threatened to interfere with their possession they were entitled to the declaration and injunction prayed for. It was admitted in the plaint that so far as the revenue of the land is concerned it was a "Muafi" in the name of the Gurdwara but according to the Plaintiffs this was the only right that the Gurdwara had in the land and it had no connection whatever with its ownership. The defendants denied the Plaintiffs'' title to the suit property and pleaded that since it had been put in possession of the defendants in accordance with the orders of His Highness the Maharaja, Civil Court had no jurisdiction to entertain the suit. They also denied the Plaintiffs'' allegation that proper notice had been given to them.
The following preliminary issues were framed by the trial Court:
Is the suit not competent in this Court and it has no jurisdiction to try the case?
Is the notice given by the Plaintiffs defective?
Both the issues were found against the defendants and it was held that the suit was competent.
Exhibit D/A is the copy of the order of the Head of the Deorhi Mualla referred to in the plaint and relied upon by the defendants. As I have already mentioned the fact that the order was issued and was acted upon was admitted in the plaint. This is how the order reads:
Order of His Highness the Maharaja Dhiraj Mohindar Bahadur as conveyed by S. Bharpur Singh Dhillon, Sardar Sahib Deodhi Mualla-
''After the death of Mahant Harnam Singh of Gurdwara Sahib, Lehra Gaga, a Committee was appointed to manage this religious institution, but obstacles were placed in their way by the Pujaris of this sacred Gurdawara. Neither they performed the ceremonies of Dhup-Dhip (burning incense etc.) nor did they provide food to casual visitors (the Panjabi word is "Rahi" which literally means passersby). For this reason all the Pujaris are being dispossessed from the Gurdawara of village Lehra Gagga, sacred to the memory of Shri Guru Tegh Bahadur, and approval is being given through the Deodhi Mualla for the appointment of a paid Manager & a local Managing Committee. Approval is also being given for having the mutation of 542 bighas and 4 biswas of land which according to the re-Venue papers belongs to the said Gurdwara as well as Rs. 106/- representing the Muafi. and Rs. 170/- annual grant made in the name of the said Gurdawara etc.
The defendants position was that the above order having been issued by His Highness in the capecity of the Ruler of the State it was not open to Civil Court to determine whether he had the power to do so. Hence the question referred to the Full Bench.
The most important point to be determined is what was the position of the erstwhile Patiala State at the time His Highness made the order, that is to say, whether it was an independent and sovereign State, and if so, whether the Ruler had unlimited power to make any order that he liked.
It is common knowledge that until the time of Aurengzeb and even for some time after his death, the territory which later on came to be known as Patiala State like the rest of the Punjab was a part of the Mughal Empire. Due to the tyrannies of the Mughal Government over non-Muslims, started during the time of Aurangzeb and intensified by some of his successors, rebellions and revolts broke out in different parts of the country. In the Punjab the Sikhs became a special target of the Government fury with the result that they were forced to take up arms to defend themselves and for ridding the country of an alien and tyrannical rule. The Empire began to totter. The authority of Lahore and Sirhand satraps was shaken and quite a number of independent principalities sprang up throughout the breadth and corner of the land.
In the mean while came the invasion of Nadar Shah which further disorganised and weakened the authority of the Mughal Government in the Punjab. The Sikhs were not slow to take advantage of the confusion thus caused and captured parts of the territory. Nadar Shah annexed a part of the North West India to his Kingdom but his death, in 1747 left his work unfinished. After him Ahmad Shah Abdali tried to capture the whole of Punjab. This naturally brought him in clash with the Sikhs. For a detailed account of the struggle that the Sikhs carried on with him and also with the agents of the Mughal throne at Delhi, who joined hands with the foreign marauders for their extermination, one must turn to books of History. All that need be mentioned here is that, by 1780, when the first pitched battle took place between the Sikhs and Abdali at Manipur, Ala Singh who founded the ruling family of Patiala and after whom the city was later on named, had carved out a small state for himself and it was he who led the Sikh Army. Reference in this connection may be made to the treatise "Rise of the Sikh Power" by Dr. Narindar Krishan Sinha.
Thereafter there were three parties to the struggle for power in the Punjab the Moghuls, Abdali and the Sikhs. The Sikhs were no doubt weak but they fully profited by the situation created by the war between Abdali and the Moghuls and they gradually consolidated themselves. Occasionally the agents of the Moghul Emperor sought their help to fight Ahmed Shah Abdali and this gave them further opportunity of acquiring real power and extending the boundaries of the States that they had been able to establish here and there. The hold of the Moghul Emperor became weaker day after day and in the beginning of fifties though the ''de jure'' ruler of the Punjab was the Moghul Emperor ''de facto'' power had been usurped partly by Abdali and partly the Sikhs. In 1751 Abdali invaded India for the third time. He defeated Mir Manu, the Moghul Subedar of Lahore and conquered Kashmir. The Moghul Emperor became so helpless that he ceded the northern part of the Punjab upto Sirhind to Abdali and the latter appointed Mir Manu as his Governor of Lahore.
This was the beginning of the second phase of the Sikh struggle for independence, The Moghuls had practically washed their hands of the Punjab and their place was taken by Abdali and since he showed considerable keenness for routing the Sikhs they had now to fight him. This, however, did not daunt them in any way and they continued acquiring more power and territory. A circumstance which favoured them was that Lahore wanted to be independent of Abdali and the Marhattas from the south appeared on the scene. Abdali again came to India and fought his enemies at Panipat in 1761. This battle is known as the third battla of Panipat.
Ala Singh took up the side of Abdali. Though Abdali won the battle but he did not stay here for long and went back to his country after conferring more territory upon Ala Singh. In the years that followed the Sikhs succeeded in capturing a greater part of the Punjab and Ala Singh became a powerful Ruler. Ahmad Shah again invaded Punjab, massacred the Sikhs in what is known as the ''Great Ghalu Ghara'' on 5-6-1762, over powered Ala Singh and took him to Lahore. He, however, soon realised his difficulty, released Ala Singh and recognised his right to rule over his territories on payment of a small tribute to his Governor of Lahore. Nominally Ala Singh became a vassal of Abdali but his submission was nothing more than bowing before a storm. The ninth and the last invasion of Ahmad Shah Abdali took place in 1767. He, now ho doubt, defeated the Sikhs in battles, but he was unable to subjugate them completely. So he went back and left the field free for them.
The Sikhs were not slow to exploit the situation created by the exit of Abdali and in a few years became masters of the whole country from Saharanpur to Attock and from Multan to Kangra. They established twelve principalities known as "Misles". One of them, namely, the Phulkian Misle was headed by Ala Singh. After Ala Singh''s death his grandson Amar Singh succeeded him. He was known popularly as "Padshah-i-Zamindar" (Dr. Sinha, p. 81) and was acknowledged as Raja-i-Rajgan by Ahmad Shah. Zaman Shah, the successor of Ahmad Shah Abdali, made an effort to re-conquer the Punjab but his ambition proved to be a dream and by 1703 whole of the Province had become independent.
Hari Ram Gupta, in his well-known History of the Sikhs (1739-1786) has summed up the position in the following words:
Having overpowered all their enemies, the Sikhs obtained possession of the major portion of the Punjab, extending in the east from the bank of the Jamna, running from Buriya to Karnal, in the west as far as the Indus from Attock to the vicinity of Bhakhar, and in the south from the neighbourhood of Multan and Sind, to the foot of the Shivalik Hills, in the north upto the boundaries of Bhimbar, Jammu and Kangra, interspersed here and there with some petty independent chieftains." (p. 269)..."Thus had the Sikhs emerged triumphant from their deadly struggle of the past thirty years; and the long drawn agony of their subiection came to an end and the dream of their independence was realized...(p.271)
After 1768 neither the Moghuls nor the successors of Ahmed Shah Abdali exercised any kind of authority, ''de facto'' or ''de jure'', over the different States including the State of Patiala, that had by then been established and each State particularly the major ones, among which Patiala occupied a prominent position, became Independent. On the other side of Sutlaj Maharaja Ranjit Singh, the head of the Sukarchakya Misle annexed the smaller principalities, conquered Lahore and established himself is a powerful monarch. His territories extended from Sutlej to Kandhar and from Shikarpur (now in Sindh) to Multan. Being afraid that his ambitions might lead him to swallow the States of Patiala, etc. on this side of the Sutlaj, the rulers of these States sought the protection of the Britishers who had by then acquired sway over Delhi. The British Governor General who had himself been fearing the exploits of Maharaja Ranjit Singh and was'' beginning to think that if left undisturbed the Maharaja might at one time prove a real danger, to the British Empire in India, or at least to its extension which he was determined to make, considered this as a God-sent opportunity and arrangements were made by which Patiala entered into friendly relations with Lord Lake, the British Commander-in-Chief, in March, 1804 (see Punjab States Gazetteer, Vol. 17-A, p. 47).
In 1809 the British Government issued a formal proclamation of protection of the Cis-Sutiaj States, including Patiala against Lahore, which according to the above Gazetteer, after stating that
the country of the chiefs of Malwa and Sir-hind had entered under the protection of the British Government" went on to secure to these chiefs "the exercise of the same rights and authority within their own possession which they enjoyed before.
Two years later, another proclamation of protection, this time to protect the Cis-Sutlej Chiefs against one another, was issued. From this it will be seen that the alliance that Patiala made with the British Government was wholly for defence purposes and the internal sovereignty of the State was not affected thereby.
During the Sikh wars and also during the Mutiny of 1857 the Rulers of Patiala cast their lot with the British and helped them with men and money. As a reward for these services the British Government granted certain territories to Patiala State, at first for administrative purposes and later on in perpetuity. Since there existed a sort of confusion regarding the exact powers that the State had over the territories that had been bestowed upon it by the British Government and it was also considered necessary to define the scope of the authority of the Ruler over the original territory of the State a Sanad was granted to the Maharaja of Patiala by the Viceroy and Governor-General of India on 5th May, 1860 to clarify these matters. The relevant words of the Sanad are:
The Maharaja Sahib Bahadur and his successors will, in the present and future time, exercise sovereignty with pence of mind and in perfect security, in accordance with ancient custom, over his ancestral possessions and the dominions bestowed on him by the British Government, and consider the territory granted to him by the British Government in recognition of his good services as his ancestral territory with all powers and rights internal and external....
...All powers great and small, administrative and criminal and in respect of the produce of revenue etc. will, as heretofore, remain permanently vested in the power and control of the Maharaja Sahib Bahadur and his successors, generation after generation, and descendant after descendants, in pre sent and in future for ever and in perpetuity....
The Sanad also provided that
with regard to internal management and the affairs of brothers, household and relatives, the rulers and arrangements made by the Maharaja Sahib Mahindar Bahadur will always be respected and not interfered with by the powerful British Government.
(-The Indian States by D.K. Sen, p. 60).
This is a brief historical survey of the position enjoyed by the Patiala State. Before it sought and obtained the protection of the British Indian Government, it was a sovereign independent State owing allegiance to no other State, neither the Moghul Emperor of Delhi nor the Maharaja of Lahore. The fact that it became a protectorate of the British Indian Government made no difference so far as internal sovereignty was concerned because the protection that the British Government agreed to give was against external aggression and left the internal sovereignty of the State undisturbed. Moreover if there was any scope for doubt it was set at rest by the Sanad of 1860 mentioned above.
Sen in his "Indian States" groups the Indian States from the historical standpoint under the following heads:
i. States which were sovereign and independent, de jure and de facto,
ii. States which were dependent de jure but sovereign de facto.
iii. States which lost their independence and separate existence for a period but were restored to their former status and rights with certain restrictions and modifications by the British Government.
iv. States which owe their separate and independent existence to the British Government.
v. States which paid tribute to other States. He places Phulkian States of the Punjab in the first category. This view appears to me to be correct.
Sovereignty, as is observed by Hibbert in his jurisprudence, being a human institution and the result of historical development, does not admit of an absolute definition. It results from the habits of mankind and therefore can only be defined by reference to such habits. At page 58 of the book (sovereignty is) defined by reference to such habits. At page 58 of the book Hibbert gives the following definition of ''Sovereign'':
The term ''sovereign'' means a political superior who is not subject to any other political superior.
At page 62 he refers to the various classifications of sovereignty given by Austin, such as, monarchy, oligarchy, aristocracy and democracy. Professor Holland makes the following observations at page 50 of his book, the Elements of Jurisprudence:
The sovereignty of the ruling part has two aspects. It is ''external'' as independent of all control from without; ''internal'' as paramount over all action within.
Jurists are now agreed that a State by ceding certain powers with regard to external affairs to another State does not case to be sovereign, if its power with regard to internal matters remains unrestricted. This principle was recognised by the House of Lords in - ''Duff Development Co. Ltd. v. Government of Kelantan'' 1924 A.C. 797. The facts of that case were that the Government of Kalentan granted to the Appellant Company certain mining and other rights to be exercised in that State and the deed contained an arbitration clause which incorporated the Arbitration Act of 1839 (of England), so far as applicable. Disputes having arisen as to the effect of this deed, they were referred to an arbitrator, who made an award in favour of the Company and directed the Government to pay the costs of the arbitration. The Government applied to the Chancery Division u/s 11 of the Arbitration Act to set aside the award, but the application was refused. Later on the Company obtained from the Kings Bench Division u/s 12 of the Act an order giving leave to enforce the award but this order was set aside on the application of the Government on the ground that Kelantan was a sovereign State. It was proved that the Sultan of Kelantan had entered into an agreement with the Government of England whereby he had agreed to have no political relations with any foreign power except through the medium of the King of England and further in all matters of administration (other than those touching, the Mohammedan religion and Malay custom) to follow the advice of an adviser appointed by the King. It was held that the sovereignty of Kelantan and its rulers was not intended to be qualified by the terms of the agreement.
The following were the observations made by Lord Cave on the point:
The documents enclosed in this reply show that Kelantan had formerly been recognised as a dependency of Siam; that the Siamese Government had by the Treaty of Bangkok transferred to the British Government all its rights over Kelantan; and that by the agreement dated October 22, 1910 referred to in the letter from the Secretary of State, the Rajah (afterwards styled the Sultan) of Kelan tan had engaged to have no political relations with any foreign power except through the medium of His Majesty the King of England and to follow in all matters of administration (save those touching the Mohammadan religion and Malay custom) the advise of the adviser appointed by His Majesty. Upon these documents it was argued on behalf of the Appellants that, although the Secretary of State had stated in the letter of October 9, 1922, that Kelantan was an independent State and its Sultan a sovereign ruler, this statement must be held to be qualified by the terms of the documents enclosed with the letter; that, taking the information as a whole, the true result was that Kelantan was not an independent but a dependent State, and accordingly that the Sultan was not immune from process in the English Courts.
My Lords, in my opinion, this argument cannot prevail. Vattel (Droit des Gens, ed. Pradier-Fodere (1863), vol. I, Ch. 1) defines. a sovereign State as a nation which governs itself by its own authority and laws without dependence on any foreign dower (Section 4) but he also lays it down (Section 5) that a State may without ceasing to be a sovereign State be bound to another more powerful State, by an unequal alliance, and he adds:....(Then follows a quotation from Vattel work).
Applying this principle I hold that far as the internal administration is concerned Patiala remained a sovereign State even, after it became a protectorate of the British Indian Government.
The point now to be determined is whether the order made by the Ruler or such a State could be questioned by a Court of law. Both sides are agreed that the Ruler was the undisputed head of the State and his power and authority was unrestricted. He could make and administer laws. He was the fountain-head of justice, his word law, and if I may repeat what a famous monarch of France once said, he was the State. In modern States which have written or unwritten Constitutions there are legislatures whose function it is to make laws and such laws confer powers upon various classes of persons or bodies of persons, authority to frame rules and to issue orders. When the question arises, whether a particular law or a rule or order made or issued is intra vires the Courts must examine the relevant provisions of the Constitution or in case of a rule or order the relevant provisions of law, with a view to finding out whether the authority that made it had the requisite power. But no such question can arise in the case of the head of a sovereign independent State for the simple reason that he does not derive his authority from any one and what he lays down or ordains or orders has the force of law and has to be obeyed. This is what Holland says at page 370 of his book while dealing with the functions of the Constitutional Law:
The primary function of Constitutional law is to ascertain the political centre of gravity if any given State. It announces in what portion of the whole is to be found the ''internal'', ''sovereignty'', ''suprema'', ''postestas'', ''staatsgewalt'' or as Aristotle called it.... In other words, the sovereign part of the State, as thus ascertained, is omnipotent. Since it is the source of all law, its acts can never be illegal. As little can they be, strictly speaking, unconstitutional. The latter term is properly applied only to characterise an act of an inferior political authority in excess of its delegated powers. Thus a statute passed by the Congress of the United States may be unconstitutional, because the sovereign people has empowered the President and Congress to legislate only subject to certain restrictions, and has entrusted to a Supreme Court the duty of deciding whether any given enactment is or is not made in pursuance of the restricted powers thus delegated; but the authority of the King, Lords, and Commons in England is fettered by no such limitation.
In Britain the Parliament which consists of the King, Lords and Commons is the sovereign authority. At page 41 of Dicey''s Introduction to the Study of the Law of the Constitution we find the following passage taken from Blackstone''s Commentaries:
The power and jurisdiction of Parliament, says Sir Edward Coke, is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.... It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal civil, military, maritime, or criminal: this being the place where that absolute despotic power which must in all governments reside somewhere, is entrusted by the Constitution of there kingdoms.
(After enumerating different things that it can do it proceeds:)
impossible and therefore some have not scrupled to call its power, by a figure rather too bold, the omnipotence of Parliament. It is true, that what the Parliament doth, no authority upon earth can undo.
After enumerating certain facts Dicey arrives at three conclusions, two of which are (page 88):
That there is no law which the Parliament cannot change and
That there does not exist in any part of the British Empire any person or body of persons, executive, legislative or judicial which can pronounce void any enactment passed by the British Parliament on the ground of such enactment being opposed to the constitution, or on any ground whatever, except of course, its being repealed by Parliament.
Since as regards the internal matters the sovereign power of the Ruler of the Patiala State was identical with that of the British Parliament in England, I am of the view that the above remarks made by Dicey equally apply to him and the legality of no order made by him can be questioned by a civil Court. The question whether the order which takes away the property of a person and gives it to another is immaterial, because the power of the Ruler extended to making of all kinds of orders.
I may also mention here that a similar view was expressed by Sir Jai Lal, President of the Judicial Committee of the Ijalas-i-Khas of the erstwhile Patiala State in - ''Sham Lal v. Narain Muni'' 2 J.C. Rep. (Patiala) 253. His observations were:
No suit is maintainable in civil court to contest the validity of an order passed by His Highness Shri 108 Maharajadhiraj Mahendra Bahadur.
I pointed out in my referring order that the facts of that case were somewhat different and Sir Jai Lal''s remarks were of the nature of an obiter dicta. Inspite of this they are entitled to great weight and I respectfully agree with them.
For all these reasons my answer to the question referred to the Full Bench is that a Civil Court has no jurisdiction in the matter.
Gurnam Singh, J.
I agree with my Lord the Chief Justice.
Passey, J.
The question, which is doubtlessly one of Law and of vast importance referred by the learned Chief Justice to the Full Bench is
Does not a civil Court have jurisdiction to determine whether it was within the competence of the Ruler of the erstwhile Patiala State to give the land that was the private property of the Plaintiffs, to the Gurdwara Committee by an executive order.
The land in suit was alleged to form part of the estate belonging to Gurdwara Guru Teg Bahadur at Ghaga out was admittedly in the possession of the Plaintiffs. The Sardar Sahib Deorhi Mualla, who controlled the administration of religious institutions in the State, with the approving order of the Maharaja of Patiala, appointed a Committee for the management of the Gurdwara replacing the Plaintiffs, lie further directed that the possession of the land attached to the Gurdwara be taken over by the Committee constituted by him from the Plaintiffs. The Plaintiffs thereupon brought a suit for a declaration that the land belonged to them and not to the Gurdwara and further prayed for an injunction restraining their dispossession by the newly formed Managing Committee.
One of the main defence to the suit was that Civil Courts had no jurisdiction to entertain the suit; but this did not find favour with the trial court which decided the objection against the defendants giving rise to a revision petition in which it was contended that as the Patiala State was a sovereign State so far as its internal administration went, and its Ruler enjoyed unlimited powers appurtenant to that sovereignty, Civil Courts were precluded from entering upon the question and giving a decision on the validity or otherwise of the orders passed by him as the judicial head of his State. The defendants'' counsel went to the length of maintaining that even if the Ruler by a capricious or arbitrary order snatched away and deprived A of his property and gave it to B, Civil Courts would have no jurisdiction to try the suit, if A brought any, disputing the validity of the deprivation order. The above is the background of the present reference. Except a judgment by Sir Jai Lal, President of the Judicial Committee Patiala, in - ''Sham Lal v. Narain Muni'' 2 J.C. Rep (Patiala) 253, neither side has been able to cite any precedent. In the case decided by Sir Jai Lal the point on which he made his observations was not in issue. His observations that no suit was maintainable in a Civil Court to contest the validity of the order passed by His Highness the Maharajadhiraj of Patiala were thus in the nature of obiter dicta. The question before this Bench which is largely one of the political and constitutional history of the State and the powers enjoyed by its rulers is also one of great legal complexity and since the counsel of neither side has been able to trace the history of such powers, it has to be decided on their arguments and on whatever meagre material they have been able to refer to.
It is not necessary to go into the said history earlier than the time when the Maharaja of Patiala went into the protection of the British Crown and the status of his state and his own status were guaranteed by a Sanad amounting to a treaty. As the relevant contents of the Sanad reproduced hereafter would show Patiala was one of those States who had become vassals of the British Crown but enjoyed and exercised fullest internal sovereignty and unrestricted civil and criminal jurisdiction over their subjects. The Sanad said,
The Maharaja Sahib Bahadur and his successors will, in the present and future time, exercise sovereignty with peace of mind and in perfect security in accordance with ancient custom, over his ancestral possession and the dominions bestowed on him by the British Government and consider the territory granted to him by the British Government in recognition of his good services....as his ancestral territory, with all powers and rights internal and external...complaints against the Maharaja Sahib from his subjects, Muafidars, Jagirdars, dependents, brothers and servants etc., will on no account be listened to by the powerful British Government,....with regard to internal management and the affairs of brothers, household and relatives, the rules and arrangements made by the Maharaja Sahib Mohinder Bahadur will always be respected and not interfered with by the powerful British Government.
This is how the internal sovereignty of Patiala was recognised.
The Sanad further gave the assurance that as regards the internal administration of the State and the exercise of sovereign powers over his subjects the Maharaja would have uncontrolled independence. We are not in the proceedings before us, so much concerned with the extent of external powers and rights of the Ruler of Patiala envisaged in the Sanad as with his powers inside the State and over his subjects. In this context it is necessary to know what in his case the word ''sovereignty'' meant. Sovereign, according to Wharton''s Law Lexicon (14th Edition), means a chief or supreme person; and sovereign power or sovereignty means that power in a State to which none other is superior. The sovereignty which the Maharaja of Patiala enjoyed did not fully answer to this definition. While he was the Chief of his subjects, he was not a power to which none other was superior. It is conceded by the learned Counsel of the Appellant that no sovereignty in practice vested in the Maharaja so far as the external relations of the State were concerned. It was the British Government that controlled, conducted and regulated the external affairs and relations of the State. The Patiala State, being a native Indian State, was only a portion or member of the bigger body India which had a government constituted under the authority of the British Parliament. Patiala was not an independently sovereign State but was subordinate to the superior and paramount power, viz., the British Government functioning in India through the Government of India and was in that sense subject to the control of the British Government in certain matters and was bound by treaty obligations which in themselves offended against the term ''sovereign'' being employed to the case of the Ruler in matters internal even.
The sovereign power that the Ruler exercised within his State was also not wholly limitless for cases and causes of interference by the paramount power are not entirely unknown and such intervention has developed from various considerations and in certain contingencies. The right of intervention of the paramount power in matters falling within the category of ''internal matters'' is incidental to the relationship between the paramount power and the protected States. The paramount power has interfered to the length of deposing Rulers of Indian States of the class to which Patiala belonged on grounds of humanity or the presence of conditions indicating of gross internal misrule jeopardising the safety of the subjects of the State and their property. Intervention by the paramount power was also conceivable when the misrule of a ruler, the so-called sovereign, of an Indian State threatened to invade the protection of the person and property, of British subjects or subjects of foreign powers in alliance with the British Crown or where the misrule threatened to be a danger to any part of British India or to a native State which the British Government had undertaken to protect. It is thus manifest that the internal sovereignty of Patiala like the sovereignty of other Indian States with similar or almost similar guarantees from the British Government, was subject to the right of the British Crown to interfere in case a contingency warranting interference arose. There are numerous other things, e.g., the setting up of Railways and Telegraphs that the Ruler could not do without the concurrence of the Government of India. It is thus impossible to use the word ''internal sovereignty'' to Patiala in its full meaning or to say that its ruler enjoyed absolutely limitless powers of sovereignty and was entirely uncontrolled by any external authority.
His was an anomalous or quasi-sovereignty inasmuch as the over-riding sovereignty vested in the British Government. This however, should not confuse the issue before us of which the scope is not wide or vast. The restriction on the powers of the Ruler of Patiala in matters external or on those which he could usually exercise in his own State, could at the worst render him a ruler with limited powers of sovereignty. It cannot, however, be denied and it is conceded by the learned Counsel of the respondent that he possessed and exercised powers, free from any control if I may say so, with regard to matters legislative, executive and judicial and these are all attributes of sovereignty - internal sovereignty at any rate. He had jurisdiction as the Sanad provided and recognised the ancestral custom in that behalf, over all persons and in respect of all offences committed within his territories. He was the fountain head of justice and legislation. His powers to make laws for his subjects were exclusive and were unrestricted. He was, in fact, the law giver of his State and he could modify or repeal any law in force in his State. The Legislative sovereignty thus vested in him clearly.
He had also full and complete control over the executive part of the administration of his State. As a matter of fact, the Government was run by him and in his name. Every servant of the State from the highest to the lowest was appointed by him and removed by him or in exercise of the powers delegated by him. All Government servants were his servants being responsible to him alone. He alone could exercise powers of clemency and grant pardons or order commutation of sentences. It was he again who confirmed sentences of death or transportation for life. He could reverse the decision of any court or tribunal in the State and substitute his own orders. Until it was so permitted by him recently, no suit could lie against his Government or against the Government servants for acts committed in their official capacity. It would not be wrong to say that his word had the weight and authority of law and in short, he exercised all the powers of a sovereign and discharged all his functions with regard to matters judicial, legislative and executive He exercised the fullest control, however astounding it might look, over his subjects and their property within his territories. In view of these sovereign powers enjoyed by the Ruler of Patiala my answer to the question would be in the negative.
By full bench: The case will now go back to the Single Judge with the expression of above opinion.