Yeshwant Singh vs Sagarmal

M.A. Razzaque, J.—This second appeal of the Plaintiff, Sardar Yeshwantsingh is directed against the decree passed by Shri B. R. Dubey, IV Additional District Judge, Indore, in Civil Appeal No. 274/52 confirming the decree of the trial Court dismissing bis suit for declaration of his title to and possession of the land in suit and damages.

The land in suit, municipal khasra Nos. 7779 and 7786, total area 2367 sq. ft., situated in Khajuri Bazar, Indore, belonged to Mashir Bahadur Sardar Rao Shivchandji Kothari who died during the pendency of the suit and therefore his son the present Appellant was brought on record as bis legal representative. The suit was filed in December 1947 and the Prime Minister, Holkar State, Indore, was impleaded as Defendant No. 1 and Rao Bahadur Rajya Bhushao Kanhaiylal Bhandari as Defendant No. 2. Defendant No. 2 died during the pendency of the first appeal and therefore Suganmal and Narendra Singh, who are his legal representatives were brought on record and they are Respondents 1 & 2 in this appeal. Defendant No. 1 was substituted by the "State of Madhya Bharat" on the formation of the State of Madhya Bharat, and now in this appeal the said State has been substituted by the "State of Mahdya Pradesh, Bhopal," as Respondent No. 3, on account of the Reorganization of the States.

A declaration purporting to be made u/s 6(1) of the Indore Land Acquisition Act appeared in the Holkar Government Gazette dated 10th February 194(sic) under the signature of Defendant No. 1 the Prime Minister, Holker State whereby it was declared that the land in suit was required for a public purpose, namely, for a High School, to be used by the public In the said declaration, the Subha was directed to take steps for the acquisition of the said land and further direction was given to the Subha to lake possession of the land on the expiry of 15 days from the date of the publication of the notice issued u/s 9 of the Act. This notice was issued on 23-1-1947. Eventually on 24-4-47 the Subha, District Indore, took possession of the said land through the Naib Amin, Indore Mahal, and handed it over to Defendant No. 2 on the same day who paid Rs. 3,364-2-0 as compensation for it. The Appellant's father, being aggreived by this acquisition which he characterised as illegal, brought the suit out of which this appeal arises.

The case of the Plaintiff was that by virtue of the proviso to Section 6(1) of the Indore Land Acquisition Act, no declaration u/s 6 of the Act could be made unless the compensation to be awarded for the property to be acquired is to be paid by a company or wholly or partly out of public revenues or some fund controlled or managed by a local authority but in the instant case the compensation was paid by Defendant No. 2, agreivate person and thus there as a breach of the provisions of the said proviso. He alleged that it was on this condition that the acquisition of the land for purposes of the Nandlal Bhandari High School was sanctioned by Huzur Shri Shan ar Order No. 32 dated 25-2-1945 (Ex. P.1) It was averred that since the compensation was made payable by Defendant No. 2 to the Plaintiff in contravention of the provisions of the proviso to Section 6 () of the Act, the declaration dated 10-2-1947 made u/s 6(1) is ultra vires, illegal and void. Similarly, taking over possession of the said land by the Government and making it over to Defendant No. 2 was also unlawful. Accordingly Appellant's father brought the suit for a declaration of his title to and possession of the land in suit, Rs. 100 for damages for trespass and mesne profits amounting of Rs. 1,566 from 24-4-1947 to 4-11-1947 and also future profits.

The Defendant No. 1 in a somewhat vague statement denied that the proceedings in connection with the acquisition of the land in suit and its acquisition were either illega. or unlawful.

The Defendant No. 2 resisted the suit on the ground that the said land was acquired by the Government in obedience to and as directed by the Huzur Shri Shankar Order 32 dated 25-2-1945 whereby His Highness the Maharaja Sahib was graciously pleased to order that the land in dispute be acquired and given to the Bhandari High School, an educational institution which worked for public uplift and public good. The said order further directed that the compensation should be paid by Defendant No. 2. It was alleged that the Huzur Shree Shankar Order is final and binding on all the persons and Courts and its validity or binding nature cannot be impeached.

The trial Court held that the acquisition of the land in suit was under Huzur Shree Shankar Order No. 32 dated 25-2-1945 which had the effect of law and therefore the proceedings for the acquisition of the land and its acquisition were neither illegal nor ultra vires. It accordingly dismissed Plaintiff's suit. On appeal, the learned Judge of the first appellate Court agreed with the trial Court that the Huzur Shree Shankar Order (Ex. P-1) had the force of law and the acquisition of the land in suit was lawful and proper. It also held that the proviso to Section 6(1) of the Act stood repealed or modified by the said order as far as this case was concerned. Hence he dismissed the appeal. The Plaintiff had accordingly preferred this second appeal.

The Huzur Shree Shankar Order (Ex. P-1) was made in pursuance of the recommendations of the Prime Minister. This recommendation was neither produced in the trial Court nor in the lower Court as Government claimed privilege for it. The lower Court held that it was not a privileged document but it did not ask the Government to file it. A grievance is therefore made in this appeal that for a proper construction and understanding of Ex. P-1, the lower Court should have required the production of this document

There is no doubt that if the land in suit has been acquired under the Indore Land Acquisition Act, then the acquisition would be bad as the compensation is paid by a private individual which is contrary to the mandatory provisions of proviso to Section 6(1) of the Act which says that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. But the Respondents Bhandaris claim the suit land under the Shree Shankar Order No. 32 dated 25-2-1945 (Ex. P-1) and not under the Notification dated 6-2-1947. The question is what is the effect of Ex. P-1.

Ex. P-1 reads as under:

His Highness the Maharaja is gracieously pleased to sanction the recommendation of the Prime Minister that an assurance may immediately be given to Rajya Bhushan Bai Bahadur Seth K. N. Bhandari,...and (2) that necessary steps for the acquisition of the open plot of land behind the Bhandari High School, would also be taken by the State, on condition that Rai Bahadur Bhandari would pay to the owner concerned such compensation, etc., as might be fixed.

On behalf of the Appellant it is urged that Ex. P-1 is neither an order nor a command but it is only an assurance given to the Bhandaris. Assuming that it is an order, then it is urged that His Highness could not transgress the provisions of the Indore Land Acquisition Act as by his own act he had fettered his prerogative and therefore he could not pass an order for acquisition of land except in accordance with the Land Acquisition Act. On behalf of the Respondents it is contended that Ex. P-1 is an order passed by the sovereign in the exercise of his prerogative, the acquisit on was made under it, and it cannot be impeached in any civil Court.

As regards the contention that Ex. P-1 is a mere assurance to Bhandaris and no more, I was some what surprised to hear it during the course of the argument Surprised because neither in the plaint nor in the memo of appeal this ground was made the foundation of claim either directly or alternatively. Para 4 of the plaint states. "It was on this condition that the acquisition of the said land for the purpose of Nandlal Bhandari High School was sanctioned by Huzur Shree Shankar Order No. 32 dt. 26-2-1945. The underlined words and specially the word "sanctioned" repels the contention that Ex. P-1 was a mere assurance and no more. Further, the memo of appeal of the lower Court as well as of this Court nowhere reveal that Ex. P-1 was treated by the Plaintiff as an assurance only. In fact, almost all the grounds in the memo of appeal of this Court show that Ex. P-1 has been construed as an order of His Highness and not an assurance. If there is any doubt on this point, ground No. 2 in the memo of appeal before this Court "that the lower Court should have held that the order of His Highness embodied in Ex. P-1 was merely an executive order and in no sense an expression of the legislative will of His Highness" would clear it may. These facts and the course of events in this case clearly go to show that all concerned not excluding the Plaintiff treated Ex. P-1 as an order and not a mere assurance.

I have already quoted the relevant portion of Ex. P-1. Stress is laid on the words "assurance" and "necessary steps shall be taken" appearing in the said document and from these it is sought to make out that Ex. P-1 simply concerns with assurance and does not travel beyond that. My reading of Ex P-1 is that it contains both, assurance and command. It conveys assurance to the Bhandaris in the terms of the said document and by clear and necessary implication it also gives command to the officers of the State to acquire the land in suit for Bhandari High School on condition that Rai Bahadur Bhandari would pay to the owner concerned such compensation etc., as might be fixed. In pursuance of this command the officers of the State subsequently took various steps culminating in handing over possession of the said land to Rai Bahadur Bhandari. That is why I say that all concerned not excluding the Plaintiff construed Ex. P-1 as an order and not a mere assurance. I accordingly reject this contention.

Having reached the conclusion that Ex. P-1 is an order or command, we have now to consider whether it had the force of law and whether it would prevail over the provisions of the proviso the Section 6(1) of the Land Acquisition Act or vice versa.

Shree Sanghi for the apellant urged that so long as the Indore Land Acquisition Act was in force, the royal prerogative of His Highness was "merged" in the statute and could not be exercised except in conformity with the provisions of that statute; that when a sovereign enacts a law, the prerogative of the so ereign to that extent is fettered by the law and therefore the conclusions of the lower Court that Ex. P-1 had the force of law and that proviso to Section 6(1) stood repealed thereby were not correct. In support of his view, he relied on Punjab Province v. Tara Chand, AIR 1947 FC 23: The State of Bihar Vs. Abdul Majid, ; Bholanath J. Thaker Vs. The State of Saurashtra, ; and Motor Emporium Company Vs. N.H. Moos, which were also cited before the lower Court.

On behalf of the Respondent, Shri Chafekar urged that the cases to which reference was made by Shri Sanghi were cases where prerogative of the sovereign was curtailed by constitutional provisions; but the Indore Land Acquisition Act has nothing to do with such curtailment. Further he urged that in none of these decisions an order of Firman of a sovereign came in conflict with any statutory law and therefore the cases relied upon cannot be an authority for the proposition canvassed. He maintained that the order of the sovereign is supreme and when it conflicts with any statutory law, the order prevails. In support of his view, he relied on various rulings to which reference will be made hereafter and which in my opinion, concluded the matter. I am also of the opinion that the authorities relied on by the Appellant have no direct bearing on the case.

From what has been observed in Ameer-un-Nissa Begum and Others Vs. Mahboob Begum and Others, , followed in Director of Endowments, Government of Hyderabad and Others Vs. Akram Ali, , it would be clear that the order Ex. P-1 of His Higness the Maharaja of Holkar State had the effect of law. In the case of Ammer-ut-nissa Begum, the Nizam of Hyderabad had issued a Firman directing that the report of a commission appointed by him to advise on a case of succession of a deceased Nawab be implemented. The Supreme Court said that,

Prior to the integration of Hyderabad State with the Indian Union and the coming into force of the Indian Constitution the Nizam of Hyderabad enjoyed uncontrolled sovereign powers. He was the supreme leg slature, the supreme judiciary and the supreme head of the executive, and there were no constitutional limitations upon his authority to act in any of these capacities. The Firmans were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law; may, they would override all other laws which were in conflict with them. So long as a particular "Firman" held the field that, alone would govern or regulate the rights of the parties concerned, though it could be annulled or modified by a later Firman at any time that the Nizam willed.

Proceeding further in the same case, their Lordships also observed that:-

Though the report of the Special Commission could not perse operate as a decree, it had that force after the sanction of the Nizam which was given to it by the Firman dated 26-6-1947. The result was that a decree capable of execution was brought into existence by the Firman of 20-6- 47.

The other case of Director of End.. Govt. of Hyd. v. Akram Ali (supra) dealt with a Firman of the Nizam directing. The Ecclesiastical Department to supervise a "Dargah" until the rights of a contending party had been enquired into and decided by a civil Court. Following Ammer-un-nissa Begum's case, their Lordships of the Supreme Court observed:

Now the Nizam was an absolute sovereign regarding all domestic matters at that time and his words was law. It does not matter whether this be called legislation or an executive act or a judicial determination because there is in fact no clear cut dividing line between the various functions of an absolute ruler whose will is law. Whatever he proclaimed through his Firmans had the combined effect of law and the decree of a Court.

His Highness the Maharaja of the Holkar State at the material time when the order Ex P-1 was passed and the land in suit acquired and possession delivered was equally an Absolute sovereign regarding all domestic matters including the properties situated within his State and therefore at that time his word was law. In view of the two Supreme Court decisions cited above, it must beheld that Ex. P-1 had the force of law and binding on all the parties concerned in the same way as any other law. Nay, it would even override all other laws which were in conflict with it

Similarly, in Rajkumar Mills Ltd. v. State of M. B. 1953 MBLJ 705 Huzur Shree Sbahkar Order No. 173 dated 29-6-1933 came in for discussion. By this notification His Highness the Maharaja ordered that the industrial tax due on the managing agent's commission of profits be recovered and the order was chair, lenged on various grounds. It was held that-

This being an order of the, ruler, who, enjoyed sovereign powers, that order is not open to Challenge. This is a mandate emanating from a sovereign and as such has the force of law. This Court has therefore no power to go behind the order and to enquire as to whether the managing agent's commission on profits is an item of expenditure solely incurred for the purpose of earning profits or not.

Kaul C. J. also observed there that:

I will however content myself with deciding this appeal on the sore ground that Huzur Shree Shanker Order No; 173 dated 14-7-1933 had the force of law......... Those familiar with appellation will not doubt that this was an order passed by His Highness in his capacity as the Sovereign and that it has the force of Law throughout the State.

Similar view was, taken in Nandlal Bhandari Milk Ltd. v. State of M.B. 1960 JLJ 1043. Recently in Gwalior Rayan v. Union of (sic) dia 1960 JLJ 581 in which the Maharaja of Gwalior who was a sovereign ruler passed an order on 18-1-47 exempting the Petitioner from the payment of tax for 12 years from the state his industry concerned started working (sic) following the two Supreme Court rulings cited above, that the order dated 18-1-1947 ruler of Gwalior State had the effect of law.

Similar question came in for consideration in Gaurdwara Sahib v. Piyara Singh AIR 1953 Pepsu 1. In this case, "A" the, owner of the property was deprive of it and given to the Gurdwara by the order of His Highness, the Maharaja of Patiala. The question, arose whether His Highness the Maharaja could do so and whether, the Civil Courts had jurisdiction to question the legality of the Maharaja's order. It was observed that the words of the ruler had the weight and authority of law and he exercised all the powers of a sovereign and discharged all his functions as such in matters Judicial executive and administrative; in his sovereign capacity he had the fullest control over his subjects and their property in his territories and could pass all kinds of orders, and therefore the order passed by him in that capacity depriving a subject of his property and conferring the same Gurdwara Committee could not be questioned in Civil Courts.

From the string it would be clear that Ex. P-1 has the force law. It could override the law of the land that came in conflict with it and that the same could not be challenged in any civil Court. In this view of the case, the direction in Ex. P-1 the compensation for the land in suit to be awarded to the owner should be paid by Raj Bhahadur Bhandari had the effect of modifying or repealing the provisions of proviso to Section 6 (1) of the Indore Land Acquition Act and His Highness had full powers to do so Accordingly it must be held that the order Ex. P-1 had the force of law; it could override the proviso to Section 6(1) and could not be questioned in a Civil Court.

On behalf of the Appellant, reliance was placed on Punjab Province v. Tara Chand AIR 1947 PC 23; Stale of Bihar v. Abdul Majid AIR 1954 SC 243, Bholanath J. Thaker Vs. The State of Saurashtra, and Motor Emporium Co. v. N.H. Moos, AIR 1957 Bom. 606, to press the point that after the statute had been passed end while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the royal prerogative may therefore have been. All these cases have been dealt with in Extense by the learned Judge of the lower Court in his elaborate judgment and he came to the conclusion that they have no application to the case in hand. It will be mere repetition by me to refer to the same discussion again. Three of these cases relate to thedocrine of holding office during the pleasure of the Crown and now during the pleasure of the President or the Governor. Suffice it to say that they are a cases where the royal prerogative was fettered or abridged by constitutional and statutory provisions and in that context it is observed in those cases that where the legislature has dealt with the power under the prerogative, the prerogative must be was nor not to and of property by that it from taking acquiring matter abridged fettered Holkar Maharaja Highness His prerogative al ro- effect the. notice my brought provision constitutional Act Acquisition Land either find do We statute. contained limitations subject manner only excercised can within previously powers statute ?merged? taken State Indore or any> 25. In fact, Ammerun-nissa Begum v. Mahbood Begum (supra) is a complete reply to the argument of the Appellant. In that case Civil Courts were functioning administering the law of the land; they were deciding cases and rassing orders and decrees in accordance with the pecuniary and territorial jurisdiction with which they were invested by the law of the land. In spite of all this his exalted Highness the Nizam deprived the Civil Courts of Am-meerun Nissa Begum's case, made it over [to the commission and the report of the commission was sanctified as a decree by his Firman dated 26-6-1947 and the rest it was that a decree carable of execution was brought into existence by that Firman. If the argument of the learned Counsel for the Appellant were accepted, then what His Exalted Highness the Nizam did in this case should have been held to be ultra vires but that was not done On the other hand it was observed that the Firmans of the Nizam and they were binding in the same way as any other law; nay, they would override all, other laws which were in conflict with them. It was. observed that so long as a particular Firman, held the field, that alone would govern or regulate the rights of the parties concerned though it could be annulled or modified by a later Fir nan at a time that the Nizam willed by analogy the same observations would apply to Ex. P-1 and the same results would.

It must therefore, be held that in the instant case, His Highness the Maharaja of the Holkar State had full powers to pass the order embodied in Ex. P-1 for acquiring the land in suit and further ordering that the compensation therefore to be fixed and awarded to the owner should be paid by Rai. Bahadur Bhandari. I therefore hold that the said order has the fores of law and cannot be questioned in Civil Courts. I further hold that it prevails upon the provisions of the proviso to Section 6(1)of the Indore Land Acquisition Act and therefore the learned Judges of the lower Courts were correct in concluding that to that extent the proviso should be considered as modified or repealed by the said order.

It accordingly follows that the acquisition of the land in suit had been made under the Huzur Shree Shankar Order No. 32 dated 25-2 1945 and not under the notification issued Under the Land Acquisition Act and therefore the acquisition is good.

On the point whether recommendation Of the Prime Minister leading to Huzur Shri Shankar Order is a privileged document, the learned Judge of the lower Court in his elaborate judgment after discussing the facts and law on the point came to the conclusion that the said recommendation was not a privileged document and therefore the trial Court should have called the said document in Court rejecting the claim of privilege A document can be withheld by the gravest consideration of State Policy'' or security or because a disclosure would be injurious to national defence or to good dipomatic(sic) relations or where the practice of keeping a class of documents secret is necessary for proper functioning of the public service The learned Judge of the lower Court referred to these observations and concluded that the document in question is not of a nature involving state policy, security of the State of diplomatic relations. The document merely relates to the recommondation for acquiring a particular plot and there is hardly any reason to keep it secret. The learned Government Advocate simply urged before this Court that the document was a privileged one. He did not attempt to controvert the reasons and the law given and cited by the lower Court. Agreeing with the lower Court, I hold that the said document is not a privileged document.

Then it was argued that the said document should have been called by the lower Court for a proper construction and understanding of the Huzur Shri Shankar Order (Ex. P-l)and as this was not done, the case may either be remanded to the lower Court or the document be called by this Court and considered. The learned Judge of the lower Court gave cogent and substantial season why the production of that document for construing Ex. P-1 as far as it relates to the payment of compensation was not necessary He was of the view that on the plain reading of Ex. P-1 no other conclusion as regards payment of compensation was possible except that the compensation in respect of the land in suit awardable to the owner should proceed from Rai Bahadur K.N. Bhandari even if it is presumed that the document, i.e., the rccommendation of the Prime Minister contain everything which is urged by the Appellant The learned Judge proceeded According to the learned Counsel for the Appellant if the Prims Minister's note had been placed off record, it would have supported his cast that the Prime Minister had made recommendation to acquire the land according to the provisions of the Land Acquisition Act, and because His Highness was pleased to sanction the said recommendation his order (Ex. P-1) cannot be construed to have been passed in exercise Of the prerogative power of His Highness. Then the learned Judge construed the Huzur Shri Shankar Order (Ex P-1) as it stands. He then endeavoured to consider it in conjunction with the Prime Minister's note assuming for the sake of argument that if contained what the Appellant urged. Thus, giving the best case to the Appellant, he found that no favourable conclusion can be reached in favour of the Appellant so far as the payment of compensstion was concerned and therefore he observed that the Prime Minister's recommendation could be dispensed with. This conclusion has my full concurrence Accordingly it is not necessary to send back the case to the lower court nor to call the said document before this'' Court.

The Huzur Shri Shankar Order (Ex. P-1) so far it relates to the direction regarding the source from which compensation for the land in suit awardable to the owner should proceed, is self-contained. The direction is clear and unequivacal to the effect that compensation for the land in suit should the paid by Rai Bahadur K.N. Bhandari Assuming that the Prime Minister in his recommendation had suggested to His Highness for passing the order to acquire the land in suit under the provisions of the Indore Land Acquisition Act and in that he further suggested that the compensation awardable to the owner of the land should be paid from public revenues either wholly or partly, as provided by the proviso to Section 6(1) of the Indore Land Acquisition Act. The case of the Appellant does not become better. From the orderr as it stanps, the will of His Highness was, that as far as payment of compensation was concerned, it should be paid wholly by Rai Bahadur Bhapdari though other, fomalities for acquisition of the land may be taken under the provisions of the Indore Land Acquisition Act. In fact this will and intention of His Highness gets doubly reinforced by the fact that he did not accept the recommendation of his Prime Minister in regard to the source from which the compensation shall proceed. The conclusion in the circumstances is irresistible that it was the will and intention of His Highness that compensation for acquiring the land in suit awardable to the owner should be paid by a private, individual namely Rai Bahadur K. N. Bhandari. Therefore, production of Prime Minister's recommendation for construing the direction relating to compensation can safely be dispenses with The contention is accordingly reicted.

Lastly it was contined(sic) that as the Government has cancelled, the said notification dated 6th, February 1947 published in the Holkar Gazette of 10th February 1947 acquiring the land in suit by subsequent notification dated 11-1-49 (Ex. P-2) the acquisition of the land, and its possession by Defendant No. 2 became unlawful and therefore the, Appellant is entitled to all the reliefs claimed. In my opinion, this contention has no substance. As seen above the acquisition of the lapd in suit is made under the Huzur Shri Shankar Order (Ex. P-1) and not under the said notification and 30 long as the said order held, the field as it holds till today that alone would govern or regulate the rights of the parties concerned. It would, not matter what formal procedure was adopted in acquiring the said land and handing over its possession, to Rai Bahadur K.N. Bhandari, The land has been acquired, the compensation had been paid ,and the sovereign will of the ruler has been carried out. The acquisition is good and the possession of the land in suit by the Respondent Bhandari is lawful, Accordingly the cancellation of the notification by the Government,does not render(sic) the acquisition of the land and its possession by the Bhandaries as unlawful. I therefore reject this contention,(sic)

I may also mention here ground No. 2 of the memo of appeal to the effect that the order of His Highness embodied in Ex. P-1 was merely an executive order and in no sense an expression of the legis ative will of His Highness Thus ground was not urged before me and must be deemed to have been abandpned. Even otherwise, thus ground has no force in Director of Endowments, Government of Hyderabad and Others Vs. Akram Ali, it was held

Now the Nizam was an absolute sovereign regarding all domestic matters at that time and his word was law. does not matter whether this, be called legislation or an executive act or a judicial determintion becouse(sic) there is in fact no clear court(sic) dividing line between the various, functions of an absolute ruler whose will is law. Whatever he proclaimed through his Firmans had the combitied(sic) effect of law and the decree of a Court.

By analogy, this would be a complete reply to this ground.

No other grounds to were Urged.

In the result, the appeal fails and it is dismissed. The decree of the tower Court is confirmed. The appelant shall pay the costs of the Respondents and bear his own. Counsel's fee Rs. 50 for each side, if certified.