MADHAORAO PHALKE versus THE STATE OF MADHYA BHARAT

GAJENDRAGADKAR J.-The question of law which arises for our decision in this appeal is whether the Kalamba.ndis under which the appellant's right to receive Rs. 21/8/- per month by way of (balance) is guaranteed constitute an existing law within the meaning, of Art. 372 of the Constitution. This question arises in this way. The appellant Ma.dhaorao Phalke describes himself as an Ekkan and claims that as such Ekka.n he and his ancestors have been receiving the monthly payment of Rs. 21/8/from the State of Madhya Bharat. It appears that the appellant's ancestors had accompanied the Scindias to Gwalior from Maharashtra. about 200 years ago, and had rendered military service in conquering the territory of Gwalior. In recognition of this service the appellant's ancestors were granted a. fixed amount of money per month, and this amount has been received by the appellant's family for several generations past. The right to receive this a.mount bas been recognised by the Rulers of Gwalior in several statutes, orders, rules or regulations having the force of statutes;· amongst them are the Kalamba.ndis of 1912 and 1935. On April 18, 1952, the Government of Madhya Bharat issued an executive order terminating the said pay- . ment to·the appellant; that is why the a.ppella.nt.ha.d to file the present petition in the High Court of Madhya. Bharat against the State of Madhya. Bharat and the Government of Madhya. Bharat, . Revenue Department, respondents 1 and 2 respectively under Art. 226 of the Constitution. In this petition the appellant had prayed for a.n order that a. writ in the nature of mandamus, or in the alternative a.n · appropriate direction or order be issued calling upon the respondents to forbear from giving effect to the said executive order. In bis petition the appellant challenged the said order on two grounds. It was urged that since the appellant's right to ;receive the specified a.mount had been. statutorily re\mgnised by the s.a.te of Gwalior it was not open to respondent 1 to extinguish that right merely by an executive order. In t.~e a.lterna.t.ive it was contended that the right to receive the said a.mount from month to month was property to which the appellant was entitled, and he could not· be divested of that property without the payment of compensation under Art. 31 of the Constitution.

pp. 959–960

These pleas were denied by the respondents. Tho respondents' case was that the payment ma.de t-0 the appellant's ancestors and to him was by way of emoluments for military sen•ice and did not cons! itute property, and that the Kala.mbandis on which the a.ppeJ. !ant relied did not constitute an existing law under Art. -:172. It appears that along with tho appellant ten other persons had filed similar petitions ma.king prayers for similar writs or orders against the respondents and their pleas were similarly challenged by the respondents. All the eleven petitions were accordingly tried together.

p. 960

These petitions were heard by a. Full Bench of the Madhya. Bharat High Court consisting of Shinde, C.J. and Dixit and Newa.ska.r, JJ. All the three learned judges a.greed in holding that the Ka.la.mba.ndis on which the petitioners bad rested their ca.so were orders issued by the Ruler for the purpose of reorganising the scheme of administration and that they did not a.mount to law or regulation having the forre of law. Dixit, J., gave a. specific reason in support of his con· clusion that the Ka.la.mba.ndis did not a.mount to a. statute. He held that in Gwalior there was a. well recognised law-ma.king machinery or custom, and since the Ka.la.mba.ndis in question did not satisfy the requirements of the forms and solemnities specified in that behalf they could not claim the status of a. statute. In the result all the petitions were dismissed. The appellant then applied for and obtained a. certificate from the High Court under Art. 133(l)(c) of the Constitution, and it is with tho said certificate that he has come to this Court in the present appeal.

p. 960

When this appeal was heard by this Court March 31, 1958, it was conceded by b-Oth the parties that it would be better that they should be allowed to adduce additional evidence before the question of!aw which was undoubtedly one of general importance·,w was decided by this Court. In fact an application ha.d been ma.de by the appellant before this Court for leave to adduce additional evidence and no serious objection was raised to the additional evidence by the respondents. Therefore, by consent the matter was sent ha.ck to the High Court with a. direction that parties should be allowed to adduce additional evidence and the High Court should record its finding on the issue remitted to it in the light of the said additional evidence. The issue remitted to the High Court was whether the Kala.mbandis ·in question were statutes or regulations having the force of statutes in the State of Gwalior at the material time or were they merely administrative orders.

pp. 960–961

After remand parties have led evidence before the High Court, and the High Court has recorded its finding on the issue remitted to it. Abdul Hakim Khan and Newaskar, JJ., have found in favour of the appellant and .have hefd that the Kalambandis in question were regulations having the force of law in the State of Gwalior at the material time ; Krishnan, J., has taken contrary view. After the finding of the High Court wa.s thus recorded papers in the case have been submitted to this Court, and the appeal has now come before us for final disposal ; and so we are called upon to decide the short question of law _set out by us at the commencement of this judgment.

p. 961

At. the outset it may be relevant to refer very briefly to the historical background of the claim made by the appellant and the other petitioners in all these matters. We have already' state'd that the appellant claims to be an Ekkan. These Ekkans, it appears, were class of horsemen who formed part of the Pesh wa's Cavalry along with Silledars. They were single volunteers and they brought with them their own horses and .accoutrements. The other petitioners olaimed to be Silledars whose ancestors formed part of the M11h11r11tta Cavalry.. These Silledars were troopers who brought in their own horses ancl weapons/ , They brought bodies of troops armed and !)62 SUPREME COURT P.EPogrs [ lfJ61] equipped a.t their own expense. They were a.lso known a.s Paiga.da.rA. It also a.rriea.rs that later on a.a aocount. was ma.de as to the expenAec which the Ekkan may have to bear for thr. maintunance of his horse, and from the total amount payable to him the amount of expenses thus determined was deducted, and that presumably left the balance Hs. 21/8/- which was p1tid to him as Bachal or balance. Broadly stated this app<'ars to be the position on the pleadings of the parties in the present proceedings. The question· which calls for our decision is whether the right to rrceh'e this amount is a statutory right; in other words, whdher the Kalambandis on which the right is based were rules or regulations having the force of law in the Sta.to of Gwalior?

pp. 961–962

The two Kalambandis in question were iAsued in 1912 A. D. and 1935 A. D. respectively. The first Kala.mbandi was issued by the Ruler Sir Ma.dhiwrao himself, w hcrea.s the second was issued by the Council which was then in charge of the administration of the State subsequent to the death of Sir Madhavra.o which took place in 1925. It is well-known tha.t the States of Gwalior, Indore and l\falwa integrated and formed a. Union in 1948. After tho Union was thus formed Act ~o. I of 1948 was passed for the purpose of taking over the administration of the covenanting States. Section 4 oft-his Act provided for the a.pplicat.ion of local laws, and as a result a.II laws, ordinances, rules, regulations, etc., having the force of law in any of the covenanting States were to continue to remain in force until they were repealed or a.mended according to law. Thus the existing laws which were in force in the State of Gwalior continued even after the union ; and according to the appellant the operation of tho Kalambandis continued under s. 4.

p. 962

On September 19, 1950, a notification was issued by the CommiAsioncr, Jagir Ina.ms, Court of Wa.rds, Madhya Bharat, declaring that in the case of a.rmy pl'rso1rncl described in p~rag_ra.ph 1, question o'. mutation, adoption. etc., a.rrnmg Ill regard to the sa.1d personnel would be dealt with by the office of the Commissioner, and Ba.chat and other amounts payable to the said personnel would be distributed by the same office. Members of the said army personnel were accordingly asked to claim payment in respect of their Nemnook from the office of the Commissioner. Sub. sequently, under the new set up which came into exis. tence after the formation of Madhya Bharat the a.rniies of the covenanting States were a.ma.lga.ma.. ted and reorganised by the Government of India so as to fit them into the overall plans of the defence of the country. The report of the general administration of Madhya Bharat shows how this reorganisation was carried out. As a result.of this/ reorganisation the expenditure on account of hereditary military pensiof1s of Ba.chat to Silleda.rs and Ekka.ns was a.greed to be charged to the Mua.fi department of the Madhya Bharat Government; that is how the Madhya Bharat Government continued to be liable to pay the a.mount to the appellant from month to month.

pp. 962–963

Then followed the impugned order passed by respimdent 1 on April 18, l!J52. · Clauses 1 to 4 of this order made provision for the continued payment to the persons specified thereunder. Clause 5, however, declared that the distribution of a.mounts to Silleda.rs a.ncj Ekka.ns not covered by els. 1 to 4 would be absolutely stopped from May 1, 1952. It is this order which ha.s given rise to the present proceedings.

p. 963

Before dealing with the question as to whether the Ka.la.mba.ndis constitute a.n existing la.w or. not it m1<y be useful to refer. very briefly to t\le constitutional , position in regard to the Government of Gwalior a.t the material time. It appears that in 1905 Sir Ma.dha.vrao Scindia. set up an advisory council known a.s Ma.jlis Kha.s. He was himself the President of this Council and assumed the title of Mir Ma.jlis. This Council wa.s constituted as a. sort of law-ma.king body, bu tin s. 5 of the Qua.id Ma.jlis Kha.s it wa.s expressly provided that the acceptance or rejection of a.ny recommendations ma.de by the ma.jorit,y of the Council would depend entirely oh the discretio~ of the President. This was f?llowed in 1916 by the establishment ·of Ma.jlis Quan)lnifor the purpose of ma.king laws for ·

p. 963

the State. \.Vith this body v:erc associated some PAo!Acl\ll~~l~na.Qtcd pnblic citizen8. Section 4{a.) of tho Qua.id •B.J 1s na.nnn, wwevor, 1 ma.do it clear that its function wa.s lllerely to a.dviso His Highness on such ma.t-

p. 964

ters aR would be placed before it, and s. ·4(b) left it to . the absolute discrotion of His Highness eithPr to ~ccept or not tho recommenrla.tions of tho body. In 1918 the Constitutional Manual describing the functions of the members of the Ruler's Cabinet was published and :lfajlis Am which was the House of the People was established. It consbted ma.inly of nominated members though some members elected from recognised public bodies also were associated with it. According to s. 31(6) of the relevant law crei,ting this body, deliberations of the body were ultimatt>ly to be submitted to His Highness for his final orders, and it was his orders which a.lone could be executed. It would thus be seon that though Sir Madha.vra.o was gradually ta.king steps to a.ssociato the·public with the government of tho Sta.to and with that object he was establishing institutions consistent with the democratic form of rule, he ha.d maintained a.If his powors a.s a. sovereign with himself a.nd had not delegated any of his powers in favour of any of the ea.id bodies. In other words, despite the creation of these bodies the Me.ha.ra.ja. coritinued to be a.n absolute monarch in whom were vested the supreme power of the legisla.. ture, the executive and the judiciary.

p. 964

In dee.ling with the question a.s to whether the orders issued by such a.n a.bsol ut-0 monarch a.mount to a. law or regulation having the force of law, or whether they constitute merely administrative orders, it is important fQ bea.r in mind ~hat the distinction between executive orders a.nd legislative commands is likely to be merely academic where the Ruler is the source of a.II power. There was no constitutional limitation' upon the authority of the Ruler to act in any ca.pa.city he liked ; he would be the supreme legislature, the supreme judiciary and the supreme head of the executive, and a.11 his orders, however issued, would ha. ve the force of law and would govern and regulate the a.lfa.irs of the State including the rights of its citizens. Tn Ameer-un.Nissa Begum v. · Mahboob B~gum ('). this Court had. to deal wit~ the effect of a FJrman issued by the N 1zam, and 1t observed that so long as the particular Firman issued by the Nizam held the field that alone would govern and regulate the rights of the parties concerned though it .would

pp. 964–965

.fi d b. 1 F' · e annu e or d mo d1 e y a ater irman at any time that the Nizam willed. What was held about the Firman issued by the Nizam would. be equally· true about all effective orders issued by the Ruler of Gwalior (Vide also: Director of Endowments, Government of Hyderabad v. Akram Ali(')) .

p. 965

It is also· clear ·that an order issued by an absolute monarch in an Indian. State which had .the force ·of law would amount to an existing- law under Art. 372 of the Constitution. Article 372 provideA for the continuance in force of the existing laws which were in force in the territories of India immediately before the commencement of the Constitution, and Art. 366(10) defines an existing law, inter alia, as meaning any law, ordinance, order, rule or regulation passed or made before the commencement of the Constitution by any person having a power to make such law, ordinance, order, rule or regulation. In Edward Mills Co., Ltd., Beawar v. State of Ajmer ( this Court has held t.hat " there is not any material difference between the expressions 'existing ht.w.' and the 'law in force'. The definition of an existing law in Art. )166(10) as well as the definition of an Indian law contained in s. 3(29) of the General Clauses Act make this position clear". Therefore, even if it is held that the Kalambandisin question did not amount to a qua.nun or law technically so called, they would nevertheless be orders or regulations which had the force of law in the State of Gwalior at the material time, and would be.saved under Art. 372: The question which then .aris~s is-whether these Kalambandis were regulations havmg the force of law at the material time. / ·In support of the conclusion that they are merely. ~dministrative orders it js urged by '.the learned Advoca.te-General of Madhya. Pradesh that Sir Madh~vrao was a.n ~nlif;lhtened Ruler and was fully conscious of the d1stmct1on between executive orders and st.a.tut-Ory provisions, and so if the Kala.mbandis in question did not take the form of a quanun or a eta.tute it would be safe w iufer tha.t they were intended to operate merely a.s executive orderR. In support of this argument rt>liance ha.s been placed on the obser- ¥ations made by Sir Ma.dha.vra.o, in Volume 7 which deals with Durbar Policy. "Broadly spea.king ", says Sir Madha.vrao, "all orders and directions issued by the Ruin may be reg .• rded as laws. In the tech• nical senS{', however, the latter term signified only commands whose fulfilment is accompanied by the conferment of a. particular concession and whose contravention spells punishment or the extinguishment of a right. Orders issued for the purpose of regulating the working of a de pa; tment generally take the form of Rules, Manual or Kalambandi and are superscribed as such". It may be conceded that this statement does make a distinction between laws technically socalled and Rules, .Manual or Kala.mbandi; but it is significant that the very statement on which this argument is founded ends with the observation that the differentiation in the names is merely intended to indicate the group to which a given set of orders belongs. In other words, the name given to the order would not be decisive; its character, its content and its purpose must be independently considered.

pp. 965–966, margin B

Then it is urged that the Kalambandis in question were not published in the Government Gazette a;.s other laws are; they were published only in th,, military gazette, and it is argued that they are not called quauun or laws as they would have been, if they were intendod to operate as laws. In this con-

p. 966

nection our attention was also drawn to certain acts \passed in the State of Gwalior which a.re described aa 'acts or laws. On the other hand, it is clear that the distinction between Kalambandi and quanun was not always strictly observed. In regard to the juriadictiou of the High Court and the functioning of the Civil and Criminal Court~ rules were issued and yet they were described a Manual. There can be no doubt that the rules contained in this Ma.n~al which govern the jurisdiction, powers and authority of· Courts in the State of Gwalior had the force of law, and yet they were included in a Manual which, judging merely by the description of the document, can be distin-

pp. 966–967

· h d f s· ·1 l " · f gms e rom a quanun. ar y appears rom circulars collected in a bbok called Majmua Circulars (1971 to 1993 Samvat) that the notification issued under the said Circular had the effect of modifying the provisions of the Customs Law. There is also another instance that amendment of statutory provisions was made by Sir Madhavrao by giving directions in that behalf though such directions did not take the form of a quanun. In fact in s. 39 of .the Dur bar Policy, Volume.3, Sir Madhavra.o has described the Kalambandi of Sa.mvat 1969 as quayada. To the same effect is the Durb3r Order No. 5 .dated April 14, 1923. It would thus be clear that the decision of the question with which we a.re concerned cannot rest merely on the description of the order.. It would not be possible to accept the argument urged by the learned Advocate-General that because the Ka.lamba.ndi is not described as a quanun or was not published in the government gazette therefore. it should be treated as an executive order. The words used in describing the several orders issued by the Ruler can afford no material assistance in determining their character. In this connection it is necessary to recall that all orders issued by the absolute monarch had the force of law.

p. 967

Therefore it would be necessary to consider the character of the orders oontained in these Kalambandis .. The first Kalamba.ndi which was issued in 1912 consists of 54 clauses. No doubt it begins by saying that it has been issued for the purpose of arranging for the administration of the department of irregular unit of Shileda.ri, but the nature of the provisions cont,ained in· this document una.mbiguouly impresses upon it the character of a statute or a regulation having the . force of a statute. It recognises and confers hereditary rights; it provides for the adoptioo of a son by ·the · widow of a deceased ·siJlredar sobjeOi' to the a.pprov1~l of the Stil.te; it also provides for the ma.intcnance of widows out of funds specially set a.pa.rt for

pp. 967–968

l . that purposo; 1t contemp ates the offermg of a subs. titute when a Silleda.r has become old or has otherwise !w.come unfit to render service; it makes detailed provisions as to mutation of names after the death of a. SiJl.,da.r, and it also directs that the Asa.mi being for the Shiledari service it cannot be mortgaged for a. debt of any banker, and it forther pro\'idcs that if a. decree is passed against a Silleda.r and the decree. holder seeks to proceed against the a.mount payable to him the. nxecution has to be carried out in accordance with the manner and subject to the limitations prescribed in that behalf. It would thus be set>n that the detailed provisions made by this Kalambandi deal with several aspects of the amount payable to the recipient, and considered as a. whole it. cannot be tre1tted as a.n administrative order issued merely for the purpose of regulating the working of the administration of the department of irregular forces.

p. 968

The second order which was issued. by the Council is substantially on the same lines a.s the first order. It consists of 39 clauses. fts preamble shows that a.s per orders of the Durbar the depa.rtmtmt of irregulars was governed by the regulations issued in that behalf ·in 1912 A.D., and it adds that "because the aforesaid Bedas have now been a.malga.ma.ted with the regular army and a.re ma.de subject to a.II the laws that a.re in force in t.be Gwalior army, the Regulations of 1912 are repealed and orders are issued as under". This dearly reads like a. statutory provision whereby the earlier relevant statute is repealed. The scheme of this ordm follows the pattern of the earlier order. It provides for succession, for the regulation of adoption, for the mutation a.nrl heirship enquiry, for a. substitute being giv()ll in case the Silleda.r is unable to work himself, prescribes a disqua.Iifica.tion from service where the Ismdar is convicted, a.nd imposes a. similar limitation on execution age.inst the a.mount of the Asa.mi. Clause 22 of this order says that in case there is no legal heir or the widow of, the deceased Ismd11.r his na.me will be struck off and the Asami will at once be given to other person. In rio case will the Asalrii be abolished. In our opinion, having regard to the contents of the two orders and the character of the provisions made by them in such a detailed manner it is difficult to distinguish them from statutes or laws; in_ any event they must be treated as rules or regulations having the force law. That is the finding recorded by Abdul Hakim Khan and Newaskar, JJ,, and we think that the said finding is correct.

pp. 968–969, margin F

After the finding was rec_orded and submitted to this Cour.t the appellant has made one more application for permission to lead another piece of additional evidence; This evidence consists of a book named "Guide Book Kalambandi" of October l, 1899. It has been printed, p~blished and issued under the signature of the Ruler, and it relates among other things to the administration of the Revenue :pepa:rtment of the State of Gwalior; it is written in Hindi. It contains a preface and introduction. According to the appellant. the r_elevant portions of this document would clearly show that Kalambandi was treated as indistinguishable from q:aanun or law. This position in not seriously disputed by the respondents; but they contend that the appellant should not be allowed any further opportunity to lead additional evidence because by the.order of remand he was given such an opportunity and he should have produced all the evidence on which he wanted' to rely before the High Cour't.' There is some force in this contention; on the other hand it is clear that publications Jike the one on which the appellant now seeks to rely would be ·rrimarily within the knowledge of respondent l and respondent l should have produced all relevant and material documents to assist the High Court in determining the issue sent to it after remand. However, in view of the conclusion which we have reached on the material that has already been adduced on the record we·do not~think it necessary to consider :whether.the additio,nal. evidence should be allowed to be 1¥}duced. . · · ' It is not disputed that if the Kalambandis on which the appellant's right is based a.re rules or regulations having the force of law the impugned executive order

pp. 969–970

ed b d t l Jd be · ) 'd Th · h 1ssu y respon en wou mva e rig t guaranteed to the appellant by an existing law cannot be extinguished by the issue of an executive order. In fact on this point there has never been a dispute between the parties in the present proceedings. That is why the only point of controversy between the parties was whether the Kalambandis in question amount to an existing law .or not. Since we have answered this question in favour of the appellant we must allow the appeal, set a.side the order passed by the High Court and direct that proper writ or order should be issued in favour of the appellant as prayed for by him. The appellant would be entitled to his oosts throughout.

p. 970

Appeal allowed. THE STATE OF MADHYA PRADESH AND ANOTHER

p. 970

BALDEO PRASAD (B. P. SINHA, c. J., J. L. KAPUR, P. B. GAJENDBA· GADKAB, K. SuBBJ RAo and K. N. WANCHOO, JJ.)

p. 970

Conlrol and of-Conslil11ti-Onal validity of enadment-Test-Central PrOl!inces and Berar Act, r946 (X of r946) amerukd by Act XLIX of r950, ss. 4, 4-A-C011s·

p. 970

of IM.ia, Aris. IJ.

p. 970

By an order passed under s. 4-A of the Central Province. and Berar Goondas Act, 1946 (X o! 1946), as amended by the

p. 970

Pradesh Act XLIX of 1950, the State of Madhya Pra. desh directed the respondent to leave the district of Chhindwara, which bad been specified as a proclaimed area under the Act, and the District Magistrate by another order communicated the same to the respondent. The respondent challenged the said orders under Art. 226 of the Constitution on the growul that the Act violated his lundamental rights under Art. 19o)(d) and (e) of the Constitution and was, therefore, invalidated' by Art. 13 of the Constitution. The HigJ> Court held that ss. 4 and 4-A of the impugned Act were invalid and since they w~e the

p. 970