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Judgment
Mehar Singh, J.—This is a petition under Art. 226 of the Constitution of India for declaration that the PEPSU General Sales Tax Ordinance, 2006 Bk. (Ordinance No. 33 of 2006 Bk.), is void and unenforceable and so under its provisions sales tax cannot be levied from the petitioner and for a writ restraining the PEPSU State and the Sales Tax Officer at Barnala from realising the sales tax from him.
The Ordinance came into force on 1st Maghar, 2006 Bk. It was promulgated by the Rajpramukh under Art. 10 of the Covenant entered into, on 5th May 1948. by the Rulers of the former Covenanting States, which formed the Patiala & East Punjab Slates Union. The proviso to Art. 10(2) of the Covenant limits the life of an Ordinance to not more than six months from the date of its promulgation. The petitioner contends that the period of six months expired long ago and so the Ordinance is no longer valid and subsisting law.
The Original Covenant was entered into by the Rulers on 5th May 1948. Later, on 9th April 1949, they entered into a Supplementary Covenant whereby the proviso to paragraph 2 of Art. 10 of the ''Original Covenant was so amended as to confer power on the Rajpramukh to legislate by Ordinance without any limitation as to time till the first meeting of the Constituent Assembly and after that meeting the limitation placed was that any Ordinance made by the Rajpramukh shall no be in force for more than six months from the date of its promulgation.
It appears that no Constituent Assembly was ever formed and summoned as anticipated in paragraph 1 of Art. 10 of the Original Covenant. But on 26th January 1950, the Constitution of India, coming into force in the whole of India, was adopted as the Constitution in force in PEPSU State as well. Article 372 of the Constitution eaves "the existing laws" and the Ordinance, under consideration, was on that date an existing law in this State. It, therefore, continued to be a valid law and apparently the contention on behalf of the petitioner appears to have no validity.
The question for consideration is the validity of the Supplementary Covenant entered into by the Rulers on 9th April 1349? After reciting in the preamble that the Rulers were convinced of the establishment of a new State, comprising the territories of their respective States, with a common executive, legislature, and judiciary, the Rulers resolved to entrust to a Constituent Assembly, consisting of elected representatives of the people, the drawing up of a democratic Constitution for the new State within, the frame work of the Constitution of India, and then they entered into the Articles of the Covenant, dated 5th May 1948. Article 2 provides that the Covenanting States agreed to unite and integrate their territories in one State with a common executive, legislature and judiciary, by the name of Patiala and, East Punjab States Union. Paragraph (1)(a) of Art. 6 lays down that:
The Ruler of each Covenanting State shall, as soon as may be practicable, and in any event not later than 20th August 1948, make over the administration of his State to the Rajpramukh and thereupon-
(a) all rights, authority and Jurisdiction belonging to the Ruler which appertain, or are incidental to the Government of the Covenanting State shall vest in the Union and shall hereafter be exercisable only as provided by this Covenant or by the Constitution to be framed thereunder.
The Covenant thus, among other matters, provides how the Government of the PEPSU State shall be constituted and how that State shall be governed. It would appear from the consideration of these Articles that a Ruler of a Covenanting State ceded his sovereignty fully and completely to the new State. He handed over the State to the Rajpramukh on 20th August 1948, and thereupon all rights, authority and jurisdiction that he possessed or was vested in him in relation to his State became vested in the new State and became exercisable only as provided by the Covenant or by the Constitution that was to be framed thereunder. As stated no such Constitution was Trained under the Covenant and ultimately tile new State came under the Constitution of India so that all power and authority in the new State was vested in the Government of the new State and became exercisable only as provided by the Covenant. Speaking generally sovereignty is indivisible and it could not remain vested partly in the former Rulers and partly in the new State.
It is true that Art. 3 refers to the Constitution of a Council of Rulers, but that body has never come into existence. Besides it had no functions excepting as were to be assigned to it by the Covenant or finder the Constitution of the State. The Covenant assigns no functions to the Council of Rulers and as stated no Constitution of the State was drawn up until this State became part of the Union of India. It follows that reference to the Council of Rulers in Art. 3 does not lead to an inference that each Ruler continued to be vested with sovereignty in relation to his former State. This Council of Rulers was a new institution and its existence-it in fact never came into existence-would not provide any indication of part of the sovereignty of a former Covenanting State having been left with the Ruler of that State.
Under Art. 11 the Ruler of each Covenanting State is entitled to receive annually from the revenues of the PEPSU State a certain amount as privy purse. Under Art. 12 he is entitled to full ownership, use and enjoyment of all his private property. These Articles provide for financial protection to the Rulers, but I do not see how an inference is available from them that the sovereignty of a Ruler of a Covenanting State continued to vest in him in relation to that State.
In Art. 14 succession to the GADDI of each Covenanting State is guaranteed. That the Covenant makes a provision guaranteeing a particular law of inheritance to a Ruler of a Covenanting State again provides no evidence that such a Covenanting State continued to exist as separate entity and part of the sovereignty in that State continued to be vested in the Ruler. The Covenanting State having lost their entities and merged themselves into a new State, it is only for the matter of safeguarding the law and custom of succession in the families of the Rulers for which this provision has been made in the Covenant. It was open to the Rulers when entering into the Original Covenant to make provision for continuance and protection of such law of succession in their families. It is difficult to see How because of this provision a conclusion can be drawn that some measure of sovereignty remained vested in a Ruler of a Covenanting State.
I am disposed to the view that the''-e Articles which appear to have influenced the opinion of the learned Judges In - ''Pirthi Singh v. State of Pepsu'', AIR 1953 Pepsu 161 (A), in coming to a conclusion that the Rulers of the Covenanting States were still sovereigns having capacity to enter into a new Covenant, do not lead to any such conclusion, when, as already pointed out, the other Articles referred to leave not the least doubt that each Ruler ceded complete sovereignty of his State to the new State and upon such cession the only sovereign authority that remains in the new State is the properly constituted sovereign authority under the Covenant itself.
In - AIR 1953 Pepsu 161 (A)'', another argument employed in support of the conclusion arrived at in that case is that International Law also allows modification and revision of treaties made by independent State. This is perfectly correct, but where are the independent States now. The former Covenanting States ceased to exist as sovereign entities on the date of the Original Covenant and no independent States remained in existence having capacity to enter into a fresh treaty modifying and revising the Original Covenant.
Then it is also stated in the same case that the Rulers entering into the Original Covenant dirt not intend to surrender to the new State anything mere than they agreed to surrender by-virtue of the Covenant; nor did they do so in fact, and that the Original Covenant does not contain provisions prohibiting its modification or abrogation. However, with due deference, I am of the opinion that the preamble of the Original Covenant and Arts. 2 and 6 leave no manner of doubt that there was complete surrender of sovereignty by the Rulers to the new State and there is no way of going back upon such surrender. The learned Chief Justice, who wrote judgment in that case, says that
it may be that had the Constituent Assembly contemplated by the covenant come into existence and had that Assembly in exercise of the powers given to it by the covenant made certain laws, if the Rulers wanted to do something inconsistent with those laws, they would have been faced with the real difficulty. It may also be that had any objection been raised to the amendment of the first covenant either by the Rajpramukh who had been given powers to legislate till the coming into existence of the Constituent Assembly or by the Government of India who had in the meanwhile become a suzerain power, if not in law at least in fact, it could have been urged with some plausibility that the second covenant was ultra vires of the Rulers, but no such difficulty arose firstly because the Constituent Assembly was never formed and secondly because while the Maharaja of Patiala who was and is the Rajpramukh was himself a party to the second covenant, the Government of India gave their assent to it.
If I may say so with due respect, I do not see how the fact that the Constituent Assembly did not come into existence makes any difference because in its absence the Covenant makes a provision for the exercise of the legislative functions of the new State. In my view the real matter is that the new State was provided with its own legislature, in what form that legislature functioned is a matter that does not affect the substance of the question whether or not the former Rulers retained any measure of sovereignty in themselves in relation to their former States after the Covenant was signed and the new State came into being. In my view it is a misconception to say that any objection to the validity of the second Covenant on the part of the Rajpramukh or the Government of India is a matter of any importance because the Rajpramukh is, in the new constitutional set-up of the Covenant, a part and parcel of the Government of the new State and therefore whether or not he objected to the second Covenant will not make the least difference to the validity or invalidity of that Covenant or provide any evidence to found the argument that a measure of sovereign still continued to vest in the former Rulers. I am, therefore, not impressed by these considerations in support of the conclusion that a measure of sovereignty still remained vested in each Ruler in relation to his former State.
The opinion of the learned Judges in reaching that conclusion appears to have been influenced by a decision of Madhya Bharat High Court in - Ram Dubey v. The Government of the State of Madhya Bharat'', AIR 1952 MP 57 (B), in which it has been observed that
they (the Rulers) could, at the time of which we are speaking, by mutual consent and concurrence of the Government of India amend, alter or abrogate the Covenant.
It is not clear on what considerations this opinion is founded. In any case in the Covenant of PEPSU State, as I have already shown, there are Article which leave no manner of doubt that there was a complete surrender of sovereignty by the former Rulers to the new State and in my opinion once there has been such a surrender of sovereignty it is not open to the former sovereigns to regain that sovereignty at will.
If it was open to me to consider this question I would say that the Supplementary Covenant could not amend or alter the Original Covenant and the powers of the Rajpramukh to make Ordinances under the Original Covenant could not be changed except by the Constituent Assembly formed under the provisions of the Covenant or in accordance with the provisions of the Constitution of India after it was enforced in his State. But this matter is now concluded by the authority in - AIR 1953 Pepsu 161 (A)'', in which a Division Bench of this Court, following Ram Dubey''s case from Madhya Bharat, has taken the contrary view and has held that the Rulers of the Covenanting States did not deprive themselves of the power to alter, amend, or even to abrogate the Original Covenant. In view of this authority it has now to be held that the Supplementary Covenant was a valid instrument to amend the Original Covenant and that being so, the Ordinance in question remained good law until the constitution of India came into force in this State and thereafter it has remained valid law under Art. 372 of the Constitution.
The result is that the petition fails and is dismissed, but no order is made as to costs.