Prior to August 1947, British India, as it was then described, was governed under the Government of India Act, 1935. Indian States, as they were then described, were independent States not governed by the Government of India. They were under the suzerainty of His Majesty the King and their administration was controlled under the advice of the Political Department of the Government of India, on the footing that the King was the Sovereign and had the right to exercise suzerain powers over those States. On the passing of the Indian Independence Act, 1947, from the l5th August, 1947, the British Parliament and the King ceased to have power to make any laws for India or make any changes in its Constitution. These were left to India.
As regards the Indian States, while provision continued in the Government of India Act for the Rulers signing instruments of accession, no suzerain rights were given to the Dominion of India by the Indian Independence Act. If, therefore, the Dominion of India or any of these States committed acts of aggression or territorial trespass, there was no law, the enforcement of which could give either party a relief and there was no Court also which could give such a relief. Section 204 of the Government of India Act also did not provide any relief to any of these Indian States unless they signed an Instrument of Accession.
With the passing of the Constitution of India, India became a Sovereign Independent Republic. If that Dominion or Republic committed any acts of aggression ‘towards a neighbouring Indian State (as it is convenient to describe under the circumstances) the Supreme Court has no jurisdiction to give relief to the Indian State. As noticed above its jurisdiction under Article 131 is limited and even in respect of a State specified in Part B of the First Schedule if a dispute arises out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument, it will not be entertained by this Court if the conditions of the proviso apply to the same. It is with this background that we have to read Article 363 of the Constitution.
Again it is not disputed that the Constitution is prospective. The question however is that the Supreme Court having been created by the Constitution itself on the day the Court proceeds to determine the matter, what according to the Constitution of India, is the jurisdiction of this Court. This approach does not make the provision retrospective. In this connection, the similarity in language of Articles 363 (1) and131 Proviso (i) may be noted. Considered in that way, the only question which remains for decision is whether on the structure of the plaint, the dispute raised by the suit arises out of the provision of a treaty, agreement, covenant, engagement, sanad or any other similar instrument. I have already noticed above that the dispute in respect of the agreement of the 15th December 1947 is immaterial for the present discussion. If the plaintiff repudiates that agreement he is seeking to enforce his rights after ignoring the same. If the plaintiff ( as noticed in four of the suits) relies on this agreement, it becomes a part of the Instrument of Accession under section 6 (5) of the Government of India Act, 1935, and the dispute will still have to be considered having regard to the terms of the two documents, viz. the original Instrument of Accession and the supplementary Instrument. The question thus resolves itself into an analysis of the plaint and to find out what the plaintiff seeks to get by his suit. Apart from the fact that in prayers (f) and (g) of his plaint he seeks to enforce his rights under the Agreement of the 15th December 1947, it appears clear that the whole ambit of the suit is to enforce his instrument of Accession. The plaintiff contends firstly that it had signed the Instrument of Accession through its Ruler. The State next complains that, acting beyond the powers given over under the instrument of Accession, the Dominion of India and the State of Bihar are trespassing wrongfully on its legislative and executive functions, that the Dominion of India and the State of Bihar are making laws which they have no power to make, having regard to the Instrument of Accession, and are wrongfully, interfering with the administration of the State beyond the rights given to them under the Instrument of Accession.
Instrument of Accession and is covered by Article 363 (l) of the Constitution of India. The question of the validity of the different enactments and orders is also based on the rights claimed under the Instrument of Accession so far as the plaintiff is concerned. On the side of the defendants, the position is that they admit the Instrument of Accession and they do not claim that they are exercising the disputed rights under that Instrument. Their contention is that the Agreement of the 15th of December 1947 was validly signed and is binding and enforceable against the plaintiff. The defendants contend that their action in passing the disputed legislation and orders and the action in taking over the administration are all based on that Agreement of 15th December 1947. If the plaintiff contends that that Agreement is not binding on it, it cannot enforce, its rights under the Original jurisdiction of the Court. If the plaintiff has a grievance and a right to a relief which the defendants conten it has not, the forum to seek redress is not the Supreme Court exercising its Original jurisdiction on the transfer of the suit from the Federal Court. According to the defendants the situation in those circumstances will be of a Sovereign Independent State trespassing on the territories, powers and privileges of another neighbouring independent State.
On the 16th January1950, ten days before the inauguration of the Constitution of India, the State of Seraikella (an Orissa State attached to the Eastern States Agency) brought a suit in the Federal Court of India against the Dominion of India and the Province of Bihar for the following reliefs:
“(a) Interpretation of the relevant provisions of the Government of India Act, 1935, the Indian Independence Act,1947, and of the States Merger (Governor’s Provinces) Order, 1949;
(b) Declaration that the Dominion Government has no authority vested in it to assume any power or jurisdiction beyond the matters specified in the instrument of Accession and had no authority to delegate any power or powers in relation to the plaintiff State on the Provincial Government of Bihar or 0rissa;
(c) Declaration that the Extra Provincial Jurisdiction Act 47 of 1947, the Constituent Assembly Act I of 1949, Section 290 A of the Government of India Act, 1935, and the States Merger (Governor’s Provinces) Order 1949, are ultra vires, illegal and inoperative in so far as they are made applicable to the plaintiff State and that all orders made or purported to be made and/or all actions taken or purported to be taken thereunder are also illegal and inoperative;
(d) Declaration that the Province of Bihar has no authority or jurisdiction to carry on the administration of the plaintiff State and that the alleged merger of the said State in the Province of Bihar is illegal and unauthorized and is not binding on the said State and its Ruler;
(e) Declaration as to the rights of the parties and as to the extent of authority of the defendant Dominion of India over and in respect of the plaintiff State;
(f) Declaration that the plaintiff State retains its entity and territorial integrity that its administration should in any event be carried on in the name of its Ruler and that his rights and privileges as set out in annexure “0” and his private properties as set out in annexure “D” remain unaffected;
(g) Declaration that the Province of Bihar has no authority or jurisdiction over the plaintiff State and that it should not interfere in any way with the said State or the sovereignty of its Ruler.”
All the different reliefs set out above in substance converge on the relief stated in clause (f). The plaintiff wants a declaration from this Court to the effect that the State of Seraikella retains its entity and territorial integrity and has not integrated itself with the territories of the Indian Dominion.
- This suit was pending in the Federal Court on the 26th January 1950 and under the provisions of article 374 (2) of the Constitution it has to be heard and determined by this Court. The plaintiff claims the above reliefs on the following allegations:
(1) That on the 16th August 1947 the plaintiff State acceded to the Dominion of India under the terms of an Instrument of Accession (Exhibit A) executed by its ruler and accepted by the Governor General of India, that the said instrument could not be added to or amended unless such addition or amendment was accepted by the ruler by a supplementary instrument; that no such supplementary instrument was ever executed or accepted by the ruler;
(2) That from 31st August 1947 the Government of 0rissa wrongfully and illegally purported to administer the plaintiff State by virtue of an alleged delegation of authority by the Dominion Government by a notification dated 23rd December 1947 issued under an Act called the Extra Provincial Jurisdiction Act, 47 of 1917 that the said Act is ultra vires and of no effect and does not bind the plaintiff and that the Act was not authorised by the Instrument of Accession;
(3) That the defendant claims to rely for the validity of its wrongful acts on an alleged agreement of 15th December 1947, but the same is void and inoperative and that it never became a concluded contract between the parties:
(4) That on the 18th May 1948 the Province of Bihar wrongfully and illegally took over the administration of the State and issued an administrative order under Act 47 of 1947, that the Dominion of India had no authority beyond the Instrument of Accession to delegate its power to the Province of Bihar to administer the plaintiff State;
(5) That on the 26th July 1949 the Governor General wrongfully and illegally promulgated an order called the States Merger Order of 1949, under which the State was illegally merged in the Province of Bihar, that this order was made under section 290. A of the Government of India Act which section was introduced in that Act by section 6 of the Constituent Assembly Act, I of 1949, which was ultra vires and illegal that the Dominion of India had no authority to bring the plaintiff State within the provisions of section 290 A of the Government of India Act, that the Constituent Assembly Act, I of 1949 was inoperative as it was enacted without the consent of the Governor General, that the Merger Order prejudicially affects the existence and entity of the State, its position and status and goes beyond the ambit of section 290-A.
Shorn of all its verbiage, the plaint in substance denies the agreement of 15th December 1947 on the foot of which the plaintiff State was integrated with the territories of the Indian Dominion and on the basis of which Act 47 of 1947 was made applicable to it, and the notifications mentioned in the plaint were issued. On the basis of the same agreement section 290A of the Government of India Act was also made applicable to the plaintiff State. By reason of the denial of the agreement of 15th December it is asserted by the plaintiff that the actions of the Dominion Government in first merging the plaintiff State with the Province of Orissa and subsequently merging it with the State of Bihar is unlawful and illegal; in other Words, the plaintiff alleges that in the absence of any supplementary agreement as contemplated by Section 6, sub-section (3) of the Government of India Act, 1935, the Dominion of India had no authority whatsoever to bring the plaintiff State within the ambit of the different statutes mentioned above and that all its acts in depriving the State of its legal entity are acts in excess of the terms of the Instrument of Accession and amount to usurpation of the sovereignty of the plaintiff State which was retained by it under that instrument and that being so, the plaintiff is entitled to a declaration from this Court to the effect that the plaintiff State still retains its entity and territorial integrity and that the various orders and laws under which it has been integrated with the State of Bihar are void and ultra vires and are acts of encroachment on the sovereignty of the State. Shortly stated, the plaintiff seeks by this suit to specifically enforce the terms of the Instrument of Accession by denying the existence of the agreement of 15th December 1947 or by pleading its invalidity.
Ref: AIR 1951 SC 253 : (1951) SCR 474