The Nazim was an absolute sovereign regarding all domestic matters at that time and his word was law.
It does not matter whether this be called legislation or an executive act or a judicial determination because three 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; see the judgment of this Court in – ‘Ameerunnissa Begum vs. Mahboob Begum’, Civil Appeals Nos. 101 to 103 of 1954 SC.
Therefore, the effect of this Firman was to deprive the respondent and all other claimants of all rights to possession “pending enquiry of the case”. Exactly what this means is not clear but taken in conjunction with the surrounding circumstances and with the decision of the Director of the Ecclesiastical Department to which we have referred, it is fair to assume that it means, pending the enquiry by the civil Courts about which the Director had twice spoken, that is to say, if there was a right to possession it was held in abeyance till established by the civil Courts.
11- Now, as we have said, the Nizam was at that time an absolute ruler and could do what he pleased. His will, as expressed in his Firman, was the law of the land. Therefore, even if it be assumed that the respondent was in possession, his rights to immediate possession, whatever they may have been, were taken away and held in abeyance till he could establish them in the civil Courts.
The question now arises whether this enured after the Constitution and whether the respondent’s right to possession assuming he had any, revived when the Constitution came into being. We are clear that the Constitution effected no change.
12- It was conceded that the Nizam had power to confiscate the property and to take it away from the respondent ‘in toto’ and it was conceded that if he had done so the rights so destroyed would not have revived because the Constitution only guarantees to a citizen such rights as he had at the date it came into force; it does not alter them or add to them:all it guarantees is that he shall not be deprived of such rights as he has except in such ways as the Constitution allows. But if the Nizam could take away every vestige of right by a Firman he could equally take away a part of them and at the date of the passing of the Constitution the respondent would only have the balance of the rights left to him and not the whole, for what applies to the whole applies equally to the part.
Therefore, even if we accept all the respondent’s facts, the position would still be that at the date the Constitution came into force he had no right to immediate possession; the utmost he had was right to be restored to possession if and when he established his rights in a Court a law.
13- The High Court has relied on a decision of this Court in – ‘Ameerunnissa Begum vs. Mahboob Begum’, C A. No. 63 of 1952, D/- 9-12-1952 – SC, and has held that the Firmans of the Nazim that conflict with the Constitution are ‘ultra vires’. But the learned Judges have failed to observe that in that case the Firman was issued after’ the Constitution and not before. But it was argued that even if that decision does not apply there are others that do and they hold that a law which would have been bad if it had been passed after the Constitution ceases to have effect after that date.
The decisions referred to were considered in – ‘Syed Qasim Razi vs. State of Hyderabad’, (1953) SCR 589 and the law laid down by the majority was this (page 161).
“The effect of Art. 13(1) of the Constitution is not to obliterate the entire operation of the inconsistent laws of to wipe them out altogether from the statute book; for to do so will be to give them retrospective effect which they do not possess. Such laws must be held to be valid for all past transactions ‘and for enforcing rights and liabilities accrued before the advern of the Constitution.”
Quoted from: AIR 1956 SC 60
Categories: Judicial Dictionary