whether the re-transfer
of land is without authority or not, whether these properties are under the
control of Household Department as it amounts to deciding the dispute
arising out of the Covenant, which is barred under Article 363 of the
Constitution of India. Even assuming for a minute that these properties
are under the control of the Household Department, still the plaintiff
cannot succeed for the reason that Maharaja of Holkar in the list of
properties furnished has failed to mention these properties specifically,
and interpretation of Covenant is not permissible as per settled law.
The other finding which we are not able to accept is that the
Maharaja is the owner as well as the tenant of the property. All the rights
whichever pleaded by the plaintiff are the rights flown only from the
Covenant. As provided under clause 12(1) of Covenant, admittedly by the
letter dated 29-9-1962 the respondent/plaintiff claimed the title by way of
Covenant and not by any such tenancy rights. Hence, the respondent
plaintiff cannot claim any right of tenancy over the Suit schedule
properties and such plea is misconceived and she is estopped from raising
such a plea.
Now we would like to deal with the other issue i.e., applicability of
Section 158(2) of the Madhya Pradesh Land Revenue Code, 1959. The said
Section came into force with retrospective effect from October 2, 1959 and
reads thus:
158(2): A Ruler of an Indian State forming part of the State of Madhya
Pradesh who at the time of coming into force of this Code, was holding land
or was entitled to hold land as such Ruler by virtue of the Covenant or
agreement entered into by him before the commencement of the Constitution,
shall, as from the date of coming into force of this Code, be a Bhumiswami
of such land under the Code and shall be subject to all the rights and
liabilities conferred and imposed upon a Bhumiswami by or under this Code.
As per Section 158(2) in order to confer the rights of Bhumiswami a Ruler
should be holding land or he should have been entitled to hold land as such
Ruler by virtue of a Covenant or agreement entered into by him. The
plaintiff/respondent cannot seek the status of Bhumiswami independent of
the Covenant because the rights under Section 158(2) arise out of the
Covenant itself. The source to hold the land arises by virtue of a
Covenant. When the right so claimed by way of Covenant is disputed and the
relief of settling these disputes is barred under Article 363 of the
Constitution, in our considered view, one cannot claim to be “Bhumiswami”
under Section 158(2) of the Madhya Pradesh Land Revenue Code, independent
of the Covenant. Accordingly, this issue is held in favour of
appellant/State and against the respondent/plaintiff. Hence we are of the
considered opinion that the Suit filed by the plaintiff for declaration and
injunction is barred under Article 363 of the Constitution of India and the
plaintiff is not entitled for any relief under Section 158(2) of the Madhya
Pradesh Land Revenue Code claiming the rights of Bhumiswami.
For all the foregoing reasons, we allow these appeals by setting
aside the impugned judgments of the High Court and consequently the Suit is
dismissed. However, there shall be no order as to costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 557-558 OF 2012
STATE OF MADHYA PRADESH ... APPELLANT
VERSUS
MAHARANI USHADEVI ... RESPONDENT
JUDGMENT
N.V. RAMANA, J.
1. These appeals by special leave have been filed against the impugned
judgment and decree dated 13.08.2010 and 11.02.2011 of the High Court of
Madhya Pradesh, Bench at Indore in First Appeal No. 421 of 2001 and in
Review Petition No. 396 of 2010 respectively by which the High Court while
setting aside the judgment and decree of the learned Trial Court passed in
favour of the appellant/State, decreed the Suit for declaration of title in
favour of the respondent and also dismissed the review petition preferred
by the appellant/State.
2. The facts leading to these appeals, in brief, are that the
respondent/plaintiff who was the daughter and reportedly sole heir of
Maharaja Yashwanth Rao Holkar, the erstwhile Ruler of Holkar State filed
the present Suit on 7th September 1964 seeking the relief of declaration of
title and permanent injunction in respect of the plaint schedule
properties, i.e, Birs known as Bijasan, Ashapura, Bercha, Mohna and
Gajihata and alternatively sought declaration that the plaintiff is the
Government lessee or a Bhumiswami of the Suit schedule properties. It is
the specific case of the plaintiff that these birs were initially under the
control of the Household Department of the Holkar State. Sometime during
the existence of the Holkar State, the work of cutting and collecting the
grass of these four birs was made over to the Military Grass Farm of Indore
with a direction that the quantity of grass required for the purpose of
household has to be supplied by them.
3. During the lifetime of Maharaja Yashwanth Rao Holkar, he was
depositing Tauzi assessment/revenue charges with the treasury of Holkar
State. On 31-08-1945, these birs were transferred to the Army Department
of the Holkar State, for harvesting grass, for a period of one year on
experimental basis. Again on 22-01-1951, these birs were transferred to the
Maharaja and from that date, these birs are in continuous possession and
enjoyment of the plaintiff’s family till the filing of the Suit. In the
year 1948, Holkar State along with the other princely States was merged
with the Dominion of India as per the Covenant dated 16th June, 1948, which
was later on re-organised as a part of the present State of Madhya Pradesh.
As per Article XII of the Covenant entered between Maharaja Yashwanth Rao
Holkar and Government of India, Ministry of States, by communication dated
7th May, 1949, the land in question being managed by the Household
Department became the exclusive and individual property of the father of
the plaintiff. As the property belongs to the Maharaja, even the
Government demanded revenue qua the said land which was duly deposited by
the plaintiff’s father as well as the plaintiff.
4. It is further case of the plaintiff that the State Government appears
to have passed some orders on May 2, 1964 basing on which, the Collector,
Indore had issued a notice on May 16, 1964 requiring the plaintiff to
handover the possession of the land in question on the ground that the
State Government has declared the Suit schedule property as the property of
the State. According to the plaintiff, she holds these lands either as an
owner or as a Government lessee, and Government has no jurisdiction to pass
such an order. Then the plaintiff moved the Sub-Divisional Magistrate under
Section 57 of the Madhya Bharat Land Revenue Code to adjudicate the
dispute, but the same was rejected on the ground that they had no
jurisdiction. Hence, the plaintiff was constrained to file the present Suit
seeking the relief of declaration and injunction.
5. The appellant/defendant/State contested the Suit by filing written
statement disputing the ownership of plaintiff over the Suit land.
According to the defendant, Maharaja Yashwant Rao Holkar was never the
owner of the Suit scheduled property. Hence, the question of plaintiff
succeeding to the property does not arise. The birs were the property of
the Forest Department of the Holkar State. On August 21, 1926, the Cabinet
of Holkar State transferred Bijasan Bir to the Household Department, and
later the remaining birs were also transferred on settlement of assessment.
Later these birs were transferred to the Forest Department in the year
1930. Again in the year 1943, they were re-transferred to the Household
Department. It is the case of the defendant that in the year 1945, all birs
were with the Army Department of the Holkar State, which was made
responsible to supply grass to the Household Department. At the time of
merger of Holkar State with Dominion of India, these Birs were with the
Army Department and hence cannot be treated as private properties of the
Maharaja as per Item No.14 of list of private properties and apart from all
these grounds, it was urged that the Suit is not maintainable in view of
the bar under Article 363 of the Constitution of India. Basing on the above
pleadings, the defendant sought dismissal of the Suit.
6. It appears that in the year 1979, Section 158(2) was inserted in
Madhya Pradesh Land Revenue Code, 1959. As per the said provision, the
Ruler of an Indian State, forming part of State of Madhya Pradesh, who at
the time of coming into force of the Act was holding land or was entitled
to hold land by virtue of the Covenant shall, as from the date of coming
into force of the Code, becomes a Bhumiswami of such land. The plaintiff
also seeks shelter under the said provision.
7. On behalf of the plaintiff, several voluminous documentary evidence
were marked as exhibits, while on behalf of the defendants, only two
documents were marked. The Trial Court has framed as many as 20 issues,
appreciated both the documentary and oral evidence at length and finally by
judgement and decree dated 9th march, 1992, partly allowed the Suit filed
by plaintiff in respect of three Birs and Ganjihata, and consequential
permanent injunction was also granted. Against this, the State has
preferred First Appeal No.148 of 1992, and the plaintiff has filed First
Appeal 119 of 92. The appellate Court by its judgement dated 24-03-2000 has
set aside the order of the Trial Court and remanded the matter for fresh
adjudication by framing another four additional issues for trial. At the
time of remand, it was further observed by the appellate Court that while
deciding the matter again, the Trial Court will not record any further
evidence nor will allow the parties to make any amendments to the
pleadings.
8. The Trial Court after remand framed 24 issues, and after appreciating
both oral and documentary evidence, dismissed the Suit by judgement and
decree dated 17-08-2001. It is the specific finding of the Trial Court
that the transfer of Suit schedule lands to the Household Department in the
year 1951 is without any authority and therefore bad; the Ruler paid the
Tauzi from 1951, but there is no evidence to show that Tauzi was paid for
the period prior to 1951; the correspondence entered into by the plaintiff
and her father with the Government showed that the Suit scheduled
properties were not included in Item No.14 of exhibit P.78; the plaintiff
was not in possession of the Suit schedule properties either in the form of
ordinary tenant, Government lessee or land owner; that the Suit schedule
lands were not allotted to the Forest Department by the State; and
ultimately, the Trial Court held that in view of bar contained in Article
363 of the Constitution of India, the Suit is not maintainable.
9. Against the said judgement and decree of the Trial Court, the
plaintiff preferred First Appeal No. 421 of 2001. The learned Judge
settled the following two issues for consideration:
Whether the property in question could be treated as a private property of
Maharaja Yashwanth Rao Holkar at the time of merger of Holkar State with
the State Madhya Bharat on June 16, 1948?
Whether the bar contained in Article 363 of the Constitution of India
applies to the controversy in question so as to hold the jurisdiction of
the Courts as barred?
10. The learned Judge, by judgement decree dated 13th August, 2010 set
aside the judgment of the Trial Court and decreed the Suit, by recording
findings to the effect that on the date of merger, the Suit schedule
properties belonged to the Household Department and that the land was
transferred for a specific time and specific purpose; re-transfer of land
on May 3rd, 1951 was in conformity with Item No.20 of Annexure to exhibit
P78 which provides for steps to be taken by Madhya Bharat Government to
hand over the land; By virtue of Section 158(2) of the Madhya Pradesh Land
Revenue Code, the father of the plaintiff by holding the land, became a
bhumiswami, and as such, entitled for the benefits under Section 158(2) of
the Act; the Rulers who prior to their integration of their States with the
Dominion of India were sovereign and after integration have become citizens
of India, and their rights and obligations as citizens of India are
recognized by the Constitution of India; after 1st July, 1949, even the
State cannot raise the dispute, and mere executive order cannot be
sustained unless it is supported by some authority of law; the Suit is not
barred under Article 363 of the Constitution of India because it is based
on the pre-existing right of the plaintiff and not based on the rights
flowing from the Covenant.
11. The learned Judge considered the judgement of this Court in Madhav
Rao Scindia vs. Union of India, AIR 1971 SC 53, Sawai Tej Singh vs. Union
of India and another, AIR 1979 SC 126, Draupadi Devi and Others vs. Union
of India and others, (2004) 11 SCC 425, Dr. Karan Singh vs. Jammu and
Kashmir and others, (2004) 5 SCC 698 and distinguished them observing that
in those cases, no declaration of properties as private properties was
sought, and that the executive orders passed by the State Government was
not shown to be in accordance with law and such interpretation would lead
to complete subversion of rule of law. Therefore, the dispute brought
before the Court cannot be excluded from the jurisdiction of the Court on
the ground that Article 363 of the Constitution of India, bars the Suit.
The learned Judge distinguished Sawai Tej Singh’s case observing that in
the said case, the plea of the plaintiff to recognize the properties as
private properties was rejected by the Government, but in the present case,
private properties of the Ruler have already been finalized, and therefore,
the ratio of the said judgment was not applicable to the case on hand; The
learned Judge, distinguished Draupadi Devi’s case holding that the property
in controversy in that case at no stage has been declared as the private
property of the Ruler, and hence, the said judgment was not applicable to
the facts of the present case, because in the case on hand, the properties
are already declared as private properties.
12. Learned Counsel for the appellant contended that the first and
foremost question that arises is whether the High Court had jurisdiction in
a dispute arising out of the Covenant dated 16.6.1948 between the Maharaja
of Holker and the Government by the reason of Article 363 of the
Constitution of India. The Ld. counsel states that the instant Suit falls
within the two limbs of the Article 363 as the present dispute clearly
arises out of the terms of the Covenant. The Trial Court, therefore,
rightly dismissed the Suit of the respondent, but the High Court committed
a gross error by ignoring the constitutional provisions and settled
principles of law. The claim for declaration of the properties in question
to be the private properties of late Maharaja in terms of Item No. 14 of
the list of properties, was a dispute arising out of the terms of the
Covenant, and it has been clearly mentioned in Article 363 of the
Constitution that jurisdiction of the Courts to adjudicate such claims was
barred.
13. Drawing support from Draupadi Devi (supra) learned senior counsel
submitted that the dispute as to whether a particular property was or was
not recognised as private property of the Ruler was itself a dispute
arising out of the terms of the Covenant, is not adjudicable by Courts
being beyond their jurisdiction by reason of Article 363 of the
Constitution. The origin of the Suit goes to the Government of India’s
letter dated 3rd October, 1963 rejecting the application of the respondent
to include the disputed birs in the list of private properties of the Ruler
under Item No. 14. Thus, the claim of the plaintiff is clearly a dispute
arising out of the terms of the Covenant and jurisdiction of the Courts to
adjudicate such disputes is clearly barred by virtue of Article 363 of the
Constitution.
14. It is further contended that the High Court has failed to take into
account the facts of the case in their true perspective and gravely erred
in declaring that the birs in question are the private properties of late
Maharaja, father of the respondent/ plaintiff. The properties did not
figure anywhere in the list of private properties of late Maharaja, nor the
birs were ever accepted by the State as private properties and hence the
respondent had never succeeded to the ownership of these birs. In the guise
of “interpretation of the Covenant”, the respondent wants to usurp rights
over these birs which are pure Government properties. Only with an ulterior
motive of claiming ownership on these birs as if they were private
properties of late Maharaja, the respondent wrote the letter dated 29th
December, 1962 to the Government of India, to include the disputed lands in
the list of private properties of the Ruler. These birs were in the
possession of the Army Grass Farms when the Covenant was signed
and after annexation, the
Centre of the Madhya Bharat Army was merged with the Government of India
and the Defence Department of the Government of India had taken over charge
of these lands. When the Government of India took a decision in 1955 to
close some Army Grass Farms, the disputed birs were ordered to be returned
back to the concerned Departments of the States. Therefore, the lands in
question were correctly and intentionally not mentioned in the list of
private properties of the Ruler as the same were then subjects of the
Government of India. The respondent’s legal notice dated 12.6.1964 to the
Collector, Indore under Section 80 of the Civil Procedure Code
categorically states her admission to the acknowledgement that after
Federal Financial Integration there was an order by the President of India
dated 6.10.1955 whereby the properties in question were ordered to be
vested with the Madhya Bharat Government. The Government of India, by its
letter dated 3rd October, 1963 clearly stated that the re-transfer of
possession of these disputed lands by the Holkar Army Grass Farm to the
Household Department was unauthorized and has not been accepted by the
Defence Ministry.
15. Learned senior counsel further contended that the view taken by the
High Court qualifying the respondent for the benefit under Section 158(2)
of the Madhya Pradesh Land Revenue Code, 1959 is also arbitrary and wholly
erroneous for the reason that under Section 158(2) of the Code, only the
Ruler holding land by virtue of the Covenant or agreement entered by him
before the commencement of the Constitution shall be a bhumiswami. In the
present case where the applicability of rights through Covenant itself is
in dispute, no bhumiswami rights could be granted by virtue of the
Covenant. If the plaintiff had paid any revenue for these birs that was
done only in ignorance of the fact and no rights would flow on that basis
as these lands have never been given on lease by any competent authority to
the plaintiff. Moreover, two birs namely bijasan and berchha are part of
Reserve Forest Area and on them no rights would accrue to the respondent.
16. Summing up his arguments, learned senior counsel for the State,
finally submitted that the High Court by wrongly appreciating the facts of
the case, allowed the appeal filed by the respondent ignoring the
constitutional provisions contained in Article 363, and also did not look
into the grounds of review in their proper perspective, resulting in
miscarriage of justice. The review of judgement on the basis of discovery
of new document is also permissible in terms of Section 114 read with Order
XLVII of the Code of Civil Procedure. Thus the decision of the High Court
is ultra vires the Constitution and the impugned judgments are required to
be set aside by this Court.
17. Learned senior counsel appearing for the respondent—plaintiff
strongly raised an objection to the filing of certain documents by the
appellant which were not exhibited before the Trial Court and submitted
that when the appellant sought to place on record these documents for the
first time along with the Review Petition, the High Court did not permit
them to do so. Even while remitting the matter to the Trial Court, the High
Court clearly mentioned in its order dated 24th March, 2000 that “while
deciding the matter again, the Trial Court will not record any further
evidence nor will allow the parties to make any amendments in the
pleadings”. The appellant did not challenge this direction of the High
Court and in fact, the appellant obeying this direction, did not produce
any additional evidence or document before the Trial Court when the matter
was heard again by the Trial Court. After so many years of litigation,
placing some documents on record for the first time before this Court
cannot be permitted.
18. Learned counsel for the respondent has vehemently contended that the
bar under Article 363 of the Constitution is not attracted to the present
Suit as the respondent is neither seeking any insertion nor recognition of
something which is already not recognised in the Covenant. The right of the
respondent over the lands in dispute, as argued by the learned counsel, is
not a right arising out of the Covenant, but it is a pre-existing right as
the property in dispute always belonged to the Household Department of the
then Ruler. The respondent-plaintiff is neither disputing the Covenant nor
is intending to meddle with it, but only seeking to establish her right by
the new sovereign by referring to the Covenant. The bar only relates to any
change in the Covenant, whereas the respondent seeks interpretation of the
same in true sense, hence the bar under Article 363 is not applicable to
the present case. The only moot question is whether at the time of signing
of the Covenant the Suit lands were under the administrative control of the
Household Department or not, in the light of Item No. 14 of the list of
properties furnished in terms of the Covenant. If a right is created by
way of document, then enforcement can always be sought.
19. It is also contended that in view of retrospective amendment made to
Section 158(2) of the M.P. Land Revenue Code, the bar under Article 363 is
no longer an issue as “bhumiswami” rights have been conferred on the
respondent. Thereby, all rights arising out of the Covenant have become
part of municipal law paving way for their adjudication in a Court of law.
Also in the light of fact that the Maharaja had duly paid the land revenue
in respect of these properties and after his death, the
respondent—plaintiff had continued to pay the land revenue and other
charges towards these properties, they could be treated as personal
properties of the Ruler. It is clearly available on record that in
accordance with Section 158(2) of the Madhya Pradesh Land Revenue Code,
1959 the respondent’s father had acquired the rights of bhumiswami over one
of these disputed lands, namely the Mohana Bir as per letter dated 22nd
July, 1963 of the Tehsildar of Depalpur District, Indore (Annexure R/9).
The said Section confers bhumiswami rights on a Ruler who was holding or
was entitled to hold land by virtue of the Covenant. The respondent’s
father being bhumiswami for Suit properties gave every right to the
respondent to pursue the dispute, if any, over the Suit lands in a Civil
Court.
20. Further, learned senior counsel contended that the Covenant had
emerged pursuant to the merger of various Princely States of Central India
for the formation of Madhya Bharat State. In terms of Article XII of the
Covenant, a list of properties was furnished by the then Ruler which was
duly approved by the Government of India and the disputed lands are ipso
facto covered under Item No. 14 which expressly and in unambiguous terms
specified that “all properties under the administrative control of the
Household Department of the Holkar State”. Arguing that under the heading
‘Miscellaneous’ in the list of properties, before mentioning the details of
properties, it has been specifically noted that “the above properties
claimed consist in the main, of the following:” which leads to the
inference that the list is not a comprehensive one and the words “in the
main” provides that only some prominent properties are mentioned giving
scope for other properties which are not specifically mentioned in that
list. Even from record, it is evident that the properties in dispute were
taken over by the Army Department of the Holkar State in the year 1945
“only as an experimental measure” for one year, meaning thereby, the actual
control always remained with the Household Department of the Ruler. The
communication dated 22nd January, 1951 (Annexure R/3) of Headquarters of
Madhya Bharat Force, Gwalior also supports this version, wherein it was
clearly mentioned that the disputed lands were “on rent from Household
Department of H.H. Indore”. Other communications dated 21st May, 1951 and
30th May, 1951 of the Army Grass Farms, Indore (Annexures R/4 & R/5) also
categorically specify the handing over of these properties to the Chief
Administrative Officer-in-charge, Household Department on behalf of
Maharaja. In addition, Clause 20 of the list of private properties of the
erstwhile Ruler makes it abundantly clear that after merger, the Madhya
Bharat Government shall hand over to the Ruler, the possession of such
properties which are mentioned in the list as private properties but are
under the control of Madhya Bharat Government. Accordingly, the possession
of these disputed properties was given to the Ruler on 30th May, 1951.
21. It is also urged that the right exists even independent of the
Covenant as a statutory right. Respondent claims that as per Section 31 of
the Indore Land Revenue and Tenancy Act, 1931, the Household Department of
the Ruler became an ordinary tenant and by virtue of Government order dated
26th August, 1926, the Household Department had to pay at settlement rates.
Subsequently, after the Government of Madhya Bharat came into being under
the Raj Pramukh, the Household Department continued to be an ordinary
tenant in view of
Section 54(viii) and Section 54(xviii) of the Madhya Bharat Land Revenue
and Tenancy Act, 1950. Thereafter, under Section 185(1)(ii)(a) read with
Section 190(1) of the Madhya Pradesh Land Revenue Code, 1959 all ordinary
tenants were conferred with bhumiswami rights. Countering the argument
advanced by the State that these properties come under the purview of
reserve forest area and therefore, no bhumiswami rights could accrue on
such lands, learned counsel submitted that the said claim has already been
rejected by the Trial Court as nothing was produced by the State to
establish that the land was forest land.
22. It is contented that the plaintiff’s rights over the lands in dispute
are therefore pre-existing rights which have been recognized by the
Government of India by approving the list of properties, the Covenant and
also in the light of Section 158(2) of the M.P. Land Revenue Code, 1959.
Enforcement of such pre-existing rights cannot, therefore, be barred under
the provisions of Article 363 of the Constitution as the right sought to be
enforced is only statutory one created under a municipal law. It is evident
from the material on record that the right of the respondent/plaintiff is a
pre-existing right duly recognized by the sovereign and it was not created
by the treaty. Relying on this Court’s decision in Madhavrao Scindia
(supra) learned counsel submitted that an order of an executive body is
unauthorized or legislative measure is ultra vires, is not one arising out
of any Covenant under Article 363 of the Constitution of India. In such a
situation, as rightly observed by the High Court, the present dispute
cannot be said to have arisen from any provision of the Covenant.
Therefore, the present dispute cannot be considered to be falling under the
purview of Article 363 of the Constitution and the judgment of this Court
in Draupadi Devi (supra) has no application to the facts of present case.
It is submitted that undisputedly the proviso to clause 3 of article XII of
the Covenant prohibits any dispute to be raised by anyone including the
State after 1st July 1949.
23. Having heard the learned senior counsel on either side, the following
issues of law emerge for consideration before this Court:
Whether the dispute in the present case could be ascribed to the terms of
the Covenant entered into by the Ruler with the Government of India thereby
attracting provisions of article 363 of the Constitution of India? If so,
whether the bar on the jurisdiction of Courts as envisaged under article
363 of the Constitution of India is applicable to the present case in
adjudicating the rights of the plaintiff/respondent in a Civil Suit?
Whether the Court was right in extending the benefit of bhumiswami under
section 158(2) of the Madhya Pradesh Land Revenue Code, 1959 to the
plaintiff?
24. Before adverting to the various arguments advanced by the learned
counsel on both side and the findings recorded by the Courts below, we
would deem it appropriate to extract Article 363 of the Constitution of
India, which reads as under:
363. Bar to interference by courts in disputes arising out of certain
treaties, agreements, etc.:
Notwithstanding anything in this Constitution but subject to the provisions
of Article 143, neither the Supreme Court nor any other court shall have
jurisdiction in any dispute arising out of any provision of a treaty,
agreement, Covenant, engagement, sanad or other similar instrument which
was entered into or executed before the commencement of this Constitution
by any Ruler of an Indian State and to which the Government was a party and
which has or has been continued in operation after such commencement, or in
any dispute in respect of any right accruing under or any liability or
obligation arising out of any of the provisions of this Constitution
relating to any such treaty, agreement, Covenant, engagement, sanad or
other similar instrument.
25. A plain reading of Clause (1) of Article 363 emphatically gives the
impression that no Court in this country, including this Court shall have
jurisdiction to deal with any dispute arising out of treaties, agreements
etc., entered into between the Rulers of erstwhile Indian States and the
Government of India.
26. Coming to the facts of the present case, on 16-06-1948 through the
Covenant that is exhibit P-79 Maharaja of Holkar along with other Princely
States agreed to merge with the dominion of India.
27. According to Article 12 of the Covenant, the Ruler can enjoy the
rights over his personal properties which are included in the Covenant for
which purpose a list of his personal properties was required to be
submitted to the Government. The said Article reads thus:
The Ruler of each Covenanting State shall be entitled to the full
ownership, use and enjoyment of all private properties (as distinct from
State properties) belonging to him on the date of his making over the
administration of that State to the Raj Pramukh.
He shall furnish to the Raj Pramukh before the first day of August, 1948 an
inventory of all immovable properties, securities and cash balance held by
him as such private property.
If any dispute arises as to whether any item of property is the private
property of the Ruler or State property, it shall be referred to such
person as the Government of India may nominate in consultation with the Raj
Pramukh and the decision of that person shall be final and binding on all
parties concerned.
...No such dispute shall be referable after the first day of July, 1949.
28. As per article 12(2) of the Covenant, the Maharaja of Holkar has
furnished the details of the properties under different Heads. He
furnished the details under the Heads as immovable properties comprising of
the properties inside the State, outside the State, miscellaneous and at
clause 14 “certain properties under the administrative control of the
Household Department of the Holkar State except such of the afore mentioned
property with the Household Department as had already been transferred to
the two guest houses at Indore viz the ones situated in the building which
was known as the Indore hostel and the other in Rajender Bhavan on the
Bombay-Agra road”.
29. The Suit scheduled properties which are in possession of the
plaintiff finds no mention in the entire list of properties, but the
plaintiff derives his title to the property from Clause 14 of the list of
properties which speaks about all properties under the control of the
Household Department. The plaintiff to substantiate her case that the Suit
schedule properties are private properties is relying upon clause 14 of the
list of properties, the taxes paid by her and her father in respect of
these properties, the communication dated 07-05-1948 and letter dated 30-01-
1956 wherein the Suit scheduled properties were retransferred to the
Household Department. Though lot of evidence was adduced on behalf of the
plaintiff about paying taxes to substantiate her case that the Suit
scheduled properties are the private properties of the Ruler, the core
issue that requires to be adjudicated is whether it is the personal
property of the Ruler or the property was belonging to the State. To give
any finding with regard to the ownership of the property invariably we have
to look at the Covenant for the reason the Covenant is the source of title
for the plaintiff. At any stretch of imagination, we cannot agree with the
finding of the appellate Court that the right of the plaintiff is a pre-
existing right. By all means the right of the plaintiff flows from the
Covenant by virtue of which the plaintiff claims title over these
properties, which according to her are declared as private properties of
the Ruler.
30. A bare perusal of Article 363 and the relief sought by the plaintiff
in the Suit in unequivocal terms attracts the bar contained in Article 363
of the Constitution of India. The Court below distinguished the judgment in
Draupadi Devi’s case that it is not applicable to the facts of the present
case. We are of the considered opinion that the rule of law laid down in
that case applies to the case on hand. This Court in the case of Draupadi
Devi held:
44. “… …The Covenant is a political document resulting from an act of
State. Once the Government of India decides to take over all the properties
of the Ruler, except the properties which it recognises as private
properties, there is no question of implied recognition of any property as
private property. On the other hand, this clause of the Covenant merely
means that, if the Ruler of the Covenanting State claimed property to be
his private property and the Government of India did not agree, it was open
to the Ruler to have this issue decided in the manner contemplated by
clause (3). Clause (3) of Article XII does not mean that the Government was
obliged to refer to the dispute upon its failure to recognise it as private
property. Secondly, the dispute as to whether a particular property was or
was not recognised as private property of the Ruler was itself a dispute
arising out of the terms of the Covenant and, therefore, not adjudicable by
municipal courts as being beyond the jurisdiction of the municipal courts
by reason of Article 363 of the Constitution”.
31. The above ratio laid down by this Court makes one to understand that
prior to Covenant, the ownership of all the properties remain vested with
the Ruler, but once the Covenant is entered into, the Government takes over
all the properties except those which the Government recognises as private
properties of the Ruler. This court had categorically held that there
cannot be any implied recognition of the property as private property at
any later stages when an opportunity had already been granted to raise this
issue in terms of clause (3) of Article 12 before defined period. In the
case on hand also, similar clause existed where a dispute to recognise a
property as private property could be raised only before 1st July, 1949. A
dispute whether a property was recognised as private property or not was
held to be a dispute arising out of the terms of Covenant, thereby barring
the Courts to adjudicate the same in view of Article 363 of Constitution.
32. Also in Madhav Rao Jivaji Rao Scindia (supra), this Court while
interpreting Article 363 of the Constitution, observed that a dispute
relating to the enforcement, interpretation or breach of any treaty etc.,
is barred from the Courts’ jurisdiction. The bar comes into play only when
the dispute is arising out of the provisions of a treaty, Covenant etc., as
in the present case. This Court held that Article 363 has two parts. The
first part relates to disputes arising out of Agreements and Covenants etc.
The jurisdiction of this Court as well as of other Courts is clearly barred
in respect of disputes falling within that part. Then comes the second part
of Article 363 which refers to disputes in respect of any right accruing
under or any liability or obligation arising out of any of the provisions
of the Constitution relating to any agreement, Covenant etc. It was
specifically mentioned that right as mentioned in Article 363 signifies
property.
33. In yet another case, Karan Singh (Dr.) vs. State of J&K, (2004) 5 SCC
698, while examining the applicability of Article 363 of the Constitution
to the disputes arising out of a treaty, Covenant etc., this Court observed
that all Courts including the Supreme Court is barred to determine any
right arising out of a Covenant . The correspondence exchanged between the
Ruler and the Government would amount to agreement within the meaning of
Article 363.
34. In view of our above discussion and as settled by this Court in the
above judgments, Covenant was an act of State and any dispute arising out
of its terms cannot form the subject matter in any Court including the
Supreme Court, and there cannot be any implied recognition of the property
as private property at any later stages when an opportunity had already
been granted to raise issue in terms of clause 3 of Article 12 before
defined period; above all, the properties do not find place in the
Covenant. The plaintiff is trying to interpret the Covenant that all
properties which are in the custody of the Household Department are the
personal properties of the Ruler. We feel that such interpretation and
implied recognition is impermissible as held by this Court in Draupadi
Devi. Hence the Court below erred in entertaining the Suit without
properly taking into consideration the judgments and the proposition of law
laid down by this Court in catena of cases. Hence we are of the view that
the relief in the Suit falls within the ambit of Article 363 of the
Constitution of India and the Suit is not maintainable. Accordingly first
issue is answered in favour of the appellant/State and against
respondent/plaintiff.
35. Once we have given our finding on the maintainability of the Suit, we
need not to go into the other issues. But in view of the alternative
argument advanced by the counsel, we are of the view that we should throw
some light on those issues. It is the finding of the Trial Court that the
lands were retransferred to the Holkar State in the year 1951, and re-
transferring is without any authority and it is bad. The Trial Court held
that though it is the specific case of the plaintiff that they are paying
Tauzi, there is no evidence to show that they have paid Tauzi prior to 1951
and the correspondence of the plaintiff and her father shows that the Suit
scheduled properties were not included in item no 14 of the list of
properties and further held that Suit scheduled properties were allotted to
the Forest Department. First coming to the issue of transfer of land to
Forest Department, it is settled law that parties are governed by their
pleadings and the burden lies on the person who pleads to prove and further
plaintiff has to succeed basing on the strengths of his case and cannot
depend upon the weakness of the defendant’s case. The State having alleged
several things, has failed to mark any document to show that the properties
were transferred to the Forest Department and the retransfer in the year
1951 was without any authority of law. Though the State has filed certain
documents before us, but as they are not part of the evidence, we are not
inclined to look at those documents.
36. The appellant State as defendant in the Suit has marked two
documents. While remanding the appeals preferred by the defendant and the
plaintiff, the appellate Court gave a categorical finding that the Trial
Court should not permit any of the parties to adduce further evidence. The
remand order of the appellate Court was not questioned by the State. After
the remand, the Suit was dismissed by the Trial Court wherein a finding was
recorded that no evidence is produced before the Court to show that the
property was transferred to the Forest Department. This finding has become
final as no cross appeal is preferred by the appellant/State. Hence we are
not inclined to look into these documents.
37. The plaintiff by marking the voluminous documentary evidence and by
examining PW 5 and PW 7 established that they were in continuous possession
of property till 1960, except for a short period when the Suit scheduled
properties were given to the Army Department. Tauzi was also paid by
Maharaja and later by the plaintiff. The finding of the Trial Court in this
regard that the plaintiff has failed to adduce any evidence to show that
Tauzi was paid prior to 1951, is contrary to the material on record. In
spite of all these factors that the Maharaja and the plaintiff were in
continuous possession of property and paid Tauzi for the properties,
however long the plaintiff’s possession may be and paying of the taxes will
not give her any right seeking declaration of ownership when these
properties are part of a Covenant and calls for an interpretation of the
Covenant. In addition to this, the plaintiff wrote a letter to the
Additional Chief Secretary, Government General, Administrative Department,
Bhopal, dated 1st October 1962, wherein she requested for a declaration of
the Suit scheduled properties as the private properties as declared by the
Maharaja of Holkar which clearly shows that the whole cause of action and
the reliefs sought for in the Suit are based on the Covenant and the rights
flown from the Covenant.
38. We are not inclined to go into the discussion whether the re-transfer
of land is without authority or not, whether these properties are under the
control of Household Department as it amounts to deciding the dispute
arising out of the Covenant, which is barred under Article 363 of the
Constitution of India. Even assuming for a minute that these properties
are under the control of the Household Department, still the plaintiff
cannot succeed for the reason that Maharaja of Holkar in the list of
properties furnished has failed to mention these properties specifically,
and interpretation of Covenant is not permissible as per settled law.
39. The other finding which we are not able to accept is that the
Maharaja is the owner as well as the tenant of the property. All the rights
whichever pleaded by the plaintiff are the rights flown only from the
Covenant. As provided under clause 12(1) of Covenant, admittedly by the
letter dated 29-9-1962 the respondent/plaintiff claimed the title by way of
Covenant and not by any such tenancy rights. Hence, the respondent
plaintiff cannot claim any right of tenancy over the Suit schedule
properties and such plea is misconceived and she is estopped from raising
such a plea.
40. Now we would like to deal with the other issue i.e., applicability of
Section 158(2) of the Madhya Pradesh Land Revenue Code, 1959. The said
Section came into force with retrospective effect from October 2, 1959 and
reads thus:
158(2): A Ruler of an Indian State forming part of the State of Madhya
Pradesh who at the time of coming into force of this Code, was holding land
or was entitled to hold land as such Ruler by virtue of the Covenant or
agreement entered into by him before the commencement of the Constitution,
shall, as from the date of coming into force of this Code, be a Bhumiswami
of such land under the Code and shall be subject to all the rights and
liabilities conferred and imposed upon a Bhumiswami by or under this Code.
As per Section 158(2) in order to confer the rights of Bhumiswami a Ruler
should be holding land or he should have been entitled to hold land as such
Ruler by virtue of a Covenant or agreement entered into by him. The
plaintiff/respondent cannot seek the status of Bhumiswami independent of
the Covenant because the rights under Section 158(2) arise out of the
Covenant itself. The source to hold the land arises by virtue of a
Covenant. When the right so claimed by way of Covenant is disputed and the
relief of settling these disputes is barred under Article 363 of the
Constitution, in our considered view, one cannot claim to be “Bhumiswami”
under Section 158(2) of the Madhya Pradesh Land Revenue Code, independent
of the Covenant. Accordingly, this issue is held in favour of
appellant/State and against the respondent/plaintiff. Hence we are of the
considered opinion that the Suit filed by the plaintiff for declaration and
injunction is barred under Article 363 of the Constitution of India and the
plaintiff is not entitled for any relief under Section 158(2) of the Madhya
Pradesh Land Revenue Code claiming the rights of Bhumiswami.
41. For all the foregoing reasons, we allow these appeals by setting
aside the impugned judgments of the High Court and consequently the Suit is
dismissed. However, there shall be no order as to costs.
……………………………………J.
(RANJAN GOGOI)
……………………………………J.
(N.V. RAMANA)
NEW DELHI,
JULY 15, 2015
of land is without authority or not, whether these properties are under the
control of Household Department as it amounts to deciding the dispute
arising out of the Covenant, which is barred under Article 363 of the
Constitution of India. Even assuming for a minute that these properties
are under the control of the Household Department, still the plaintiff
cannot succeed for the reason that Maharaja of Holkar in the list of
properties furnished has failed to mention these properties specifically,
and interpretation of Covenant is not permissible as per settled law.
The other finding which we are not able to accept is that the
Maharaja is the owner as well as the tenant of the property. All the rights
whichever pleaded by the plaintiff are the rights flown only from the
Covenant. As provided under clause 12(1) of Covenant, admittedly by the
letter dated 29-9-1962 the respondent/plaintiff claimed the title by way of
Covenant and not by any such tenancy rights. Hence, the respondent
plaintiff cannot claim any right of tenancy over the Suit schedule
properties and such plea is misconceived and she is estopped from raising
such a plea.
Now we would like to deal with the other issue i.e., applicability of
Section 158(2) of the Madhya Pradesh Land Revenue Code, 1959. The said
Section came into force with retrospective effect from October 2, 1959 and
reads thus:
158(2): A Ruler of an Indian State forming part of the State of Madhya
Pradesh who at the time of coming into force of this Code, was holding land
or was entitled to hold land as such Ruler by virtue of the Covenant or
agreement entered into by him before the commencement of the Constitution,
shall, as from the date of coming into force of this Code, be a Bhumiswami
of such land under the Code and shall be subject to all the rights and
liabilities conferred and imposed upon a Bhumiswami by or under this Code.
As per Section 158(2) in order to confer the rights of Bhumiswami a Ruler
should be holding land or he should have been entitled to hold land as such
Ruler by virtue of a Covenant or agreement entered into by him. The
plaintiff/respondent cannot seek the status of Bhumiswami independent of
the Covenant because the rights under Section 158(2) arise out of the
Covenant itself. The source to hold the land arises by virtue of a
Covenant. When the right so claimed by way of Covenant is disputed and the
relief of settling these disputes is barred under Article 363 of the
Constitution, in our considered view, one cannot claim to be “Bhumiswami”
under Section 158(2) of the Madhya Pradesh Land Revenue Code, independent
of the Covenant. Accordingly, this issue is held in favour of
appellant/State and against the respondent/plaintiff. Hence we are of the
considered opinion that the Suit filed by the plaintiff for declaration and
injunction is barred under Article 363 of the Constitution of India and the
plaintiff is not entitled for any relief under Section 158(2) of the Madhya
Pradesh Land Revenue Code claiming the rights of Bhumiswami.
For all the foregoing reasons, we allow these appeals by setting
aside the impugned judgments of the High Court and consequently the Suit is
dismissed. However, there shall be no order as to costs.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 557-558 OF 2012
STATE OF MADHYA PRADESH ... APPELLANT
VERSUS
MAHARANI USHADEVI ... RESPONDENT
JUDGMENT
N.V. RAMANA, J.
1. These appeals by special leave have been filed against the impugned
judgment and decree dated 13.08.2010 and 11.02.2011 of the High Court of
Madhya Pradesh, Bench at Indore in First Appeal No. 421 of 2001 and in
Review Petition No. 396 of 2010 respectively by which the High Court while
setting aside the judgment and decree of the learned Trial Court passed in
favour of the appellant/State, decreed the Suit for declaration of title in
favour of the respondent and also dismissed the review petition preferred
by the appellant/State.
2. The facts leading to these appeals, in brief, are that the
respondent/plaintiff who was the daughter and reportedly sole heir of
Maharaja Yashwanth Rao Holkar, the erstwhile Ruler of Holkar State filed
the present Suit on 7th September 1964 seeking the relief of declaration of
title and permanent injunction in respect of the plaint schedule
properties, i.e, Birs known as Bijasan, Ashapura, Bercha, Mohna and
Gajihata and alternatively sought declaration that the plaintiff is the
Government lessee or a Bhumiswami of the Suit schedule properties. It is
the specific case of the plaintiff that these birs were initially under the
control of the Household Department of the Holkar State. Sometime during
the existence of the Holkar State, the work of cutting and collecting the
grass of these four birs was made over to the Military Grass Farm of Indore
with a direction that the quantity of grass required for the purpose of
household has to be supplied by them.
3. During the lifetime of Maharaja Yashwanth Rao Holkar, he was
depositing Tauzi assessment/revenue charges with the treasury of Holkar
State. On 31-08-1945, these birs were transferred to the Army Department
of the Holkar State, for harvesting grass, for a period of one year on
experimental basis. Again on 22-01-1951, these birs were transferred to the
Maharaja and from that date, these birs are in continuous possession and
enjoyment of the plaintiff’s family till the filing of the Suit. In the
year 1948, Holkar State along with the other princely States was merged
with the Dominion of India as per the Covenant dated 16th June, 1948, which
was later on re-organised as a part of the present State of Madhya Pradesh.
As per Article XII of the Covenant entered between Maharaja Yashwanth Rao
Holkar and Government of India, Ministry of States, by communication dated
7th May, 1949, the land in question being managed by the Household
Department became the exclusive and individual property of the father of
the plaintiff. As the property belongs to the Maharaja, even the
Government demanded revenue qua the said land which was duly deposited by
the plaintiff’s father as well as the plaintiff.
4. It is further case of the plaintiff that the State Government appears
to have passed some orders on May 2, 1964 basing on which, the Collector,
Indore had issued a notice on May 16, 1964 requiring the plaintiff to
handover the possession of the land in question on the ground that the
State Government has declared the Suit schedule property as the property of
the State. According to the plaintiff, she holds these lands either as an
owner or as a Government lessee, and Government has no jurisdiction to pass
such an order. Then the plaintiff moved the Sub-Divisional Magistrate under
Section 57 of the Madhya Bharat Land Revenue Code to adjudicate the
dispute, but the same was rejected on the ground that they had no
jurisdiction. Hence, the plaintiff was constrained to file the present Suit
seeking the relief of declaration and injunction.
5. The appellant/defendant/State contested the Suit by filing written
statement disputing the ownership of plaintiff over the Suit land.
According to the defendant, Maharaja Yashwant Rao Holkar was never the
owner of the Suit scheduled property. Hence, the question of plaintiff
succeeding to the property does not arise. The birs were the property of
the Forest Department of the Holkar State. On August 21, 1926, the Cabinet
of Holkar State transferred Bijasan Bir to the Household Department, and
later the remaining birs were also transferred on settlement of assessment.
Later these birs were transferred to the Forest Department in the year
1930. Again in the year 1943, they were re-transferred to the Household
Department. It is the case of the defendant that in the year 1945, all birs
were with the Army Department of the Holkar State, which was made
responsible to supply grass to the Household Department. At the time of
merger of Holkar State with Dominion of India, these Birs were with the
Army Department and hence cannot be treated as private properties of the
Maharaja as per Item No.14 of list of private properties and apart from all
these grounds, it was urged that the Suit is not maintainable in view of
the bar under Article 363 of the Constitution of India. Basing on the above
pleadings, the defendant sought dismissal of the Suit.
6. It appears that in the year 1979, Section 158(2) was inserted in
Madhya Pradesh Land Revenue Code, 1959. As per the said provision, the
Ruler of an Indian State, forming part of State of Madhya Pradesh, who at
the time of coming into force of the Act was holding land or was entitled
to hold land by virtue of the Covenant shall, as from the date of coming
into force of the Code, becomes a Bhumiswami of such land. The plaintiff
also seeks shelter under the said provision.
7. On behalf of the plaintiff, several voluminous documentary evidence
were marked as exhibits, while on behalf of the defendants, only two
documents were marked. The Trial Court has framed as many as 20 issues,
appreciated both the documentary and oral evidence at length and finally by
judgement and decree dated 9th march, 1992, partly allowed the Suit filed
by plaintiff in respect of three Birs and Ganjihata, and consequential
permanent injunction was also granted. Against this, the State has
preferred First Appeal No.148 of 1992, and the plaintiff has filed First
Appeal 119 of 92. The appellate Court by its judgement dated 24-03-2000 has
set aside the order of the Trial Court and remanded the matter for fresh
adjudication by framing another four additional issues for trial. At the
time of remand, it was further observed by the appellate Court that while
deciding the matter again, the Trial Court will not record any further
evidence nor will allow the parties to make any amendments to the
pleadings.
8. The Trial Court after remand framed 24 issues, and after appreciating
both oral and documentary evidence, dismissed the Suit by judgement and
decree dated 17-08-2001. It is the specific finding of the Trial Court
that the transfer of Suit schedule lands to the Household Department in the
year 1951 is without any authority and therefore bad; the Ruler paid the
Tauzi from 1951, but there is no evidence to show that Tauzi was paid for
the period prior to 1951; the correspondence entered into by the plaintiff
and her father with the Government showed that the Suit scheduled
properties were not included in Item No.14 of exhibit P.78; the plaintiff
was not in possession of the Suit schedule properties either in the form of
ordinary tenant, Government lessee or land owner; that the Suit schedule
lands were not allotted to the Forest Department by the State; and
ultimately, the Trial Court held that in view of bar contained in Article
363 of the Constitution of India, the Suit is not maintainable.
9. Against the said judgement and decree of the Trial Court, the
plaintiff preferred First Appeal No. 421 of 2001. The learned Judge
settled the following two issues for consideration:
Whether the property in question could be treated as a private property of
Maharaja Yashwanth Rao Holkar at the time of merger of Holkar State with
the State Madhya Bharat on June 16, 1948?
Whether the bar contained in Article 363 of the Constitution of India
applies to the controversy in question so as to hold the jurisdiction of
the Courts as barred?
10. The learned Judge, by judgement decree dated 13th August, 2010 set
aside the judgment of the Trial Court and decreed the Suit, by recording
findings to the effect that on the date of merger, the Suit schedule
properties belonged to the Household Department and that the land was
transferred for a specific time and specific purpose; re-transfer of land
on May 3rd, 1951 was in conformity with Item No.20 of Annexure to exhibit
P78 which provides for steps to be taken by Madhya Bharat Government to
hand over the land; By virtue of Section 158(2) of the Madhya Pradesh Land
Revenue Code, the father of the plaintiff by holding the land, became a
bhumiswami, and as such, entitled for the benefits under Section 158(2) of
the Act; the Rulers who prior to their integration of their States with the
Dominion of India were sovereign and after integration have become citizens
of India, and their rights and obligations as citizens of India are
recognized by the Constitution of India; after 1st July, 1949, even the
State cannot raise the dispute, and mere executive order cannot be
sustained unless it is supported by some authority of law; the Suit is not
barred under Article 363 of the Constitution of India because it is based
on the pre-existing right of the plaintiff and not based on the rights
flowing from the Covenant.
11. The learned Judge considered the judgement of this Court in Madhav
Rao Scindia vs. Union of India, AIR 1971 SC 53, Sawai Tej Singh vs. Union
of India and another, AIR 1979 SC 126, Draupadi Devi and Others vs. Union
of India and others, (2004) 11 SCC 425, Dr. Karan Singh vs. Jammu and
Kashmir and others, (2004) 5 SCC 698 and distinguished them observing that
in those cases, no declaration of properties as private properties was
sought, and that the executive orders passed by the State Government was
not shown to be in accordance with law and such interpretation would lead
to complete subversion of rule of law. Therefore, the dispute brought
before the Court cannot be excluded from the jurisdiction of the Court on
the ground that Article 363 of the Constitution of India, bars the Suit.
The learned Judge distinguished Sawai Tej Singh’s case observing that in
the said case, the plea of the plaintiff to recognize the properties as
private properties was rejected by the Government, but in the present case,
private properties of the Ruler have already been finalized, and therefore,
the ratio of the said judgment was not applicable to the case on hand; The
learned Judge, distinguished Draupadi Devi’s case holding that the property
in controversy in that case at no stage has been declared as the private
property of the Ruler, and hence, the said judgment was not applicable to
the facts of the present case, because in the case on hand, the properties
are already declared as private properties.
12. Learned Counsel for the appellant contended that the first and
foremost question that arises is whether the High Court had jurisdiction in
a dispute arising out of the Covenant dated 16.6.1948 between the Maharaja
of Holker and the Government by the reason of Article 363 of the
Constitution of India. The Ld. counsel states that the instant Suit falls
within the two limbs of the Article 363 as the present dispute clearly
arises out of the terms of the Covenant. The Trial Court, therefore,
rightly dismissed the Suit of the respondent, but the High Court committed
a gross error by ignoring the constitutional provisions and settled
principles of law. The claim for declaration of the properties in question
to be the private properties of late Maharaja in terms of Item No. 14 of
the list of properties, was a dispute arising out of the terms of the
Covenant, and it has been clearly mentioned in Article 363 of the
Constitution that jurisdiction of the Courts to adjudicate such claims was
barred.
13. Drawing support from Draupadi Devi (supra) learned senior counsel
submitted that the dispute as to whether a particular property was or was
not recognised as private property of the Ruler was itself a dispute
arising out of the terms of the Covenant, is not adjudicable by Courts
being beyond their jurisdiction by reason of Article 363 of the
Constitution. The origin of the Suit goes to the Government of India’s
letter dated 3rd October, 1963 rejecting the application of the respondent
to include the disputed birs in the list of private properties of the Ruler
under Item No. 14. Thus, the claim of the plaintiff is clearly a dispute
arising out of the terms of the Covenant and jurisdiction of the Courts to
adjudicate such disputes is clearly barred by virtue of Article 363 of the
Constitution.
14. It is further contended that the High Court has failed to take into
account the facts of the case in their true perspective and gravely erred
in declaring that the birs in question are the private properties of late
Maharaja, father of the respondent/ plaintiff. The properties did not
figure anywhere in the list of private properties of late Maharaja, nor the
birs were ever accepted by the State as private properties and hence the
respondent had never succeeded to the ownership of these birs. In the guise
of “interpretation of the Covenant”, the respondent wants to usurp rights
over these birs which are pure Government properties. Only with an ulterior
motive of claiming ownership on these birs as if they were private
properties of late Maharaja, the respondent wrote the letter dated 29th
December, 1962 to the Government of India, to include the disputed lands in
the list of private properties of the Ruler. These birs were in the
possession of the Army Grass Farms when the Covenant was signed
and after annexation, the
Centre of the Madhya Bharat Army was merged with the Government of India
and the Defence Department of the Government of India had taken over charge
of these lands. When the Government of India took a decision in 1955 to
close some Army Grass Farms, the disputed birs were ordered to be returned
back to the concerned Departments of the States. Therefore, the lands in
question were correctly and intentionally not mentioned in the list of
private properties of the Ruler as the same were then subjects of the
Government of India. The respondent’s legal notice dated 12.6.1964 to the
Collector, Indore under Section 80 of the Civil Procedure Code
categorically states her admission to the acknowledgement that after
Federal Financial Integration there was an order by the President of India
dated 6.10.1955 whereby the properties in question were ordered to be
vested with the Madhya Bharat Government. The Government of India, by its
letter dated 3rd October, 1963 clearly stated that the re-transfer of
possession of these disputed lands by the Holkar Army Grass Farm to the
Household Department was unauthorized and has not been accepted by the
Defence Ministry.
15. Learned senior counsel further contended that the view taken by the
High Court qualifying the respondent for the benefit under Section 158(2)
of the Madhya Pradesh Land Revenue Code, 1959 is also arbitrary and wholly
erroneous for the reason that under Section 158(2) of the Code, only the
Ruler holding land by virtue of the Covenant or agreement entered by him
before the commencement of the Constitution shall be a bhumiswami. In the
present case where the applicability of rights through Covenant itself is
in dispute, no bhumiswami rights could be granted by virtue of the
Covenant. If the plaintiff had paid any revenue for these birs that was
done only in ignorance of the fact and no rights would flow on that basis
as these lands have never been given on lease by any competent authority to
the plaintiff. Moreover, two birs namely bijasan and berchha are part of
Reserve Forest Area and on them no rights would accrue to the respondent.
16. Summing up his arguments, learned senior counsel for the State,
finally submitted that the High Court by wrongly appreciating the facts of
the case, allowed the appeal filed by the respondent ignoring the
constitutional provisions contained in Article 363, and also did not look
into the grounds of review in their proper perspective, resulting in
miscarriage of justice. The review of judgement on the basis of discovery
of new document is also permissible in terms of Section 114 read with Order
XLVII of the Code of Civil Procedure. Thus the decision of the High Court
is ultra vires the Constitution and the impugned judgments are required to
be set aside by this Court.
17. Learned senior counsel appearing for the respondent—plaintiff
strongly raised an objection to the filing of certain documents by the
appellant which were not exhibited before the Trial Court and submitted
that when the appellant sought to place on record these documents for the
first time along with the Review Petition, the High Court did not permit
them to do so. Even while remitting the matter to the Trial Court, the High
Court clearly mentioned in its order dated 24th March, 2000 that “while
deciding the matter again, the Trial Court will not record any further
evidence nor will allow the parties to make any amendments in the
pleadings”. The appellant did not challenge this direction of the High
Court and in fact, the appellant obeying this direction, did not produce
any additional evidence or document before the Trial Court when the matter
was heard again by the Trial Court. After so many years of litigation,
placing some documents on record for the first time before this Court
cannot be permitted.
18. Learned counsel for the respondent has vehemently contended that the
bar under Article 363 of the Constitution is not attracted to the present
Suit as the respondent is neither seeking any insertion nor recognition of
something which is already not recognised in the Covenant. The right of the
respondent over the lands in dispute, as argued by the learned counsel, is
not a right arising out of the Covenant, but it is a pre-existing right as
the property in dispute always belonged to the Household Department of the
then Ruler. The respondent-plaintiff is neither disputing the Covenant nor
is intending to meddle with it, but only seeking to establish her right by
the new sovereign by referring to the Covenant. The bar only relates to any
change in the Covenant, whereas the respondent seeks interpretation of the
same in true sense, hence the bar under Article 363 is not applicable to
the present case. The only moot question is whether at the time of signing
of the Covenant the Suit lands were under the administrative control of the
Household Department or not, in the light of Item No. 14 of the list of
properties furnished in terms of the Covenant. If a right is created by
way of document, then enforcement can always be sought.
19. It is also contended that in view of retrospective amendment made to
Section 158(2) of the M.P. Land Revenue Code, the bar under Article 363 is
no longer an issue as “bhumiswami” rights have been conferred on the
respondent. Thereby, all rights arising out of the Covenant have become
part of municipal law paving way for their adjudication in a Court of law.
Also in the light of fact that the Maharaja had duly paid the land revenue
in respect of these properties and after his death, the
respondent—plaintiff had continued to pay the land revenue and other
charges towards these properties, they could be treated as personal
properties of the Ruler. It is clearly available on record that in
accordance with Section 158(2) of the Madhya Pradesh Land Revenue Code,
1959 the respondent’s father had acquired the rights of bhumiswami over one
of these disputed lands, namely the Mohana Bir as per letter dated 22nd
July, 1963 of the Tehsildar of Depalpur District, Indore (Annexure R/9).
The said Section confers bhumiswami rights on a Ruler who was holding or
was entitled to hold land by virtue of the Covenant. The respondent’s
father being bhumiswami for Suit properties gave every right to the
respondent to pursue the dispute, if any, over the Suit lands in a Civil
Court.
20. Further, learned senior counsel contended that the Covenant had
emerged pursuant to the merger of various Princely States of Central India
for the formation of Madhya Bharat State. In terms of Article XII of the
Covenant, a list of properties was furnished by the then Ruler which was
duly approved by the Government of India and the disputed lands are ipso
facto covered under Item No. 14 which expressly and in unambiguous terms
specified that “all properties under the administrative control of the
Household Department of the Holkar State”. Arguing that under the heading
‘Miscellaneous’ in the list of properties, before mentioning the details of
properties, it has been specifically noted that “the above properties
claimed consist in the main, of the following:” which leads to the
inference that the list is not a comprehensive one and the words “in the
main” provides that only some prominent properties are mentioned giving
scope for other properties which are not specifically mentioned in that
list. Even from record, it is evident that the properties in dispute were
taken over by the Army Department of the Holkar State in the year 1945
“only as an experimental measure” for one year, meaning thereby, the actual
control always remained with the Household Department of the Ruler. The
communication dated 22nd January, 1951 (Annexure R/3) of Headquarters of
Madhya Bharat Force, Gwalior also supports this version, wherein it was
clearly mentioned that the disputed lands were “on rent from Household
Department of H.H. Indore”. Other communications dated 21st May, 1951 and
30th May, 1951 of the Army Grass Farms, Indore (Annexures R/4 & R/5) also
categorically specify the handing over of these properties to the Chief
Administrative Officer-in-charge, Household Department on behalf of
Maharaja. In addition, Clause 20 of the list of private properties of the
erstwhile Ruler makes it abundantly clear that after merger, the Madhya
Bharat Government shall hand over to the Ruler, the possession of such
properties which are mentioned in the list as private properties but are
under the control of Madhya Bharat Government. Accordingly, the possession
of these disputed properties was given to the Ruler on 30th May, 1951.
21. It is also urged that the right exists even independent of the
Covenant as a statutory right. Respondent claims that as per Section 31 of
the Indore Land Revenue and Tenancy Act, 1931, the Household Department of
the Ruler became an ordinary tenant and by virtue of Government order dated
26th August, 1926, the Household Department had to pay at settlement rates.
Subsequently, after the Government of Madhya Bharat came into being under
the Raj Pramukh, the Household Department continued to be an ordinary
tenant in view of
Section 54(viii) and Section 54(xviii) of the Madhya Bharat Land Revenue
and Tenancy Act, 1950. Thereafter, under Section 185(1)(ii)(a) read with
Section 190(1) of the Madhya Pradesh Land Revenue Code, 1959 all ordinary
tenants were conferred with bhumiswami rights. Countering the argument
advanced by the State that these properties come under the purview of
reserve forest area and therefore, no bhumiswami rights could accrue on
such lands, learned counsel submitted that the said claim has already been
rejected by the Trial Court as nothing was produced by the State to
establish that the land was forest land.
22. It is contented that the plaintiff’s rights over the lands in dispute
are therefore pre-existing rights which have been recognized by the
Government of India by approving the list of properties, the Covenant and
also in the light of Section 158(2) of the M.P. Land Revenue Code, 1959.
Enforcement of such pre-existing rights cannot, therefore, be barred under
the provisions of Article 363 of the Constitution as the right sought to be
enforced is only statutory one created under a municipal law. It is evident
from the material on record that the right of the respondent/plaintiff is a
pre-existing right duly recognized by the sovereign and it was not created
by the treaty. Relying on this Court’s decision in Madhavrao Scindia
(supra) learned counsel submitted that an order of an executive body is
unauthorized or legislative measure is ultra vires, is not one arising out
of any Covenant under Article 363 of the Constitution of India. In such a
situation, as rightly observed by the High Court, the present dispute
cannot be said to have arisen from any provision of the Covenant.
Therefore, the present dispute cannot be considered to be falling under the
purview of Article 363 of the Constitution and the judgment of this Court
in Draupadi Devi (supra) has no application to the facts of present case.
It is submitted that undisputedly the proviso to clause 3 of article XII of
the Covenant prohibits any dispute to be raised by anyone including the
State after 1st July 1949.
23. Having heard the learned senior counsel on either side, the following
issues of law emerge for consideration before this Court:
Whether the dispute in the present case could be ascribed to the terms of
the Covenant entered into by the Ruler with the Government of India thereby
attracting provisions of article 363 of the Constitution of India? If so,
whether the bar on the jurisdiction of Courts as envisaged under article
363 of the Constitution of India is applicable to the present case in
adjudicating the rights of the plaintiff/respondent in a Civil Suit?
Whether the Court was right in extending the benefit of bhumiswami under
section 158(2) of the Madhya Pradesh Land Revenue Code, 1959 to the
plaintiff?
24. Before adverting to the various arguments advanced by the learned
counsel on both side and the findings recorded by the Courts below, we
would deem it appropriate to extract Article 363 of the Constitution of
India, which reads as under:
363. Bar to interference by courts in disputes arising out of certain
treaties, agreements, etc.:
Notwithstanding anything in this Constitution but subject to the provisions
of Article 143, neither the Supreme Court nor any other court shall have
jurisdiction in any dispute arising out of any provision of a treaty,
agreement, Covenant, engagement, sanad or other similar instrument which
was entered into or executed before the commencement of this Constitution
by any Ruler of an Indian State and to which the Government was a party and
which has or has been continued in operation after such commencement, or in
any dispute in respect of any right accruing under or any liability or
obligation arising out of any of the provisions of this Constitution
relating to any such treaty, agreement, Covenant, engagement, sanad or
other similar instrument.
25. A plain reading of Clause (1) of Article 363 emphatically gives the
impression that no Court in this country, including this Court shall have
jurisdiction to deal with any dispute arising out of treaties, agreements
etc., entered into between the Rulers of erstwhile Indian States and the
Government of India.
26. Coming to the facts of the present case, on 16-06-1948 through the
Covenant that is exhibit P-79 Maharaja of Holkar along with other Princely
States agreed to merge with the dominion of India.
27. According to Article 12 of the Covenant, the Ruler can enjoy the
rights over his personal properties which are included in the Covenant for
which purpose a list of his personal properties was required to be
submitted to the Government. The said Article reads thus:
The Ruler of each Covenanting State shall be entitled to the full
ownership, use and enjoyment of all private properties (as distinct from
State properties) belonging to him on the date of his making over the
administration of that State to the Raj Pramukh.
He shall furnish to the Raj Pramukh before the first day of August, 1948 an
inventory of all immovable properties, securities and cash balance held by
him as such private property.
If any dispute arises as to whether any item of property is the private
property of the Ruler or State property, it shall be referred to such
person as the Government of India may nominate in consultation with the Raj
Pramukh and the decision of that person shall be final and binding on all
parties concerned.
...No such dispute shall be referable after the first day of July, 1949.
28. As per article 12(2) of the Covenant, the Maharaja of Holkar has
furnished the details of the properties under different Heads. He
furnished the details under the Heads as immovable properties comprising of
the properties inside the State, outside the State, miscellaneous and at
clause 14 “certain properties under the administrative control of the
Household Department of the Holkar State except such of the afore mentioned
property with the Household Department as had already been transferred to
the two guest houses at Indore viz the ones situated in the building which
was known as the Indore hostel and the other in Rajender Bhavan on the
Bombay-Agra road”.
29. The Suit scheduled properties which are in possession of the
plaintiff finds no mention in the entire list of properties, but the
plaintiff derives his title to the property from Clause 14 of the list of
properties which speaks about all properties under the control of the
Household Department. The plaintiff to substantiate her case that the Suit
schedule properties are private properties is relying upon clause 14 of the
list of properties, the taxes paid by her and her father in respect of
these properties, the communication dated 07-05-1948 and letter dated 30-01-
1956 wherein the Suit scheduled properties were retransferred to the
Household Department. Though lot of evidence was adduced on behalf of the
plaintiff about paying taxes to substantiate her case that the Suit
scheduled properties are the private properties of the Ruler, the core
issue that requires to be adjudicated is whether it is the personal
property of the Ruler or the property was belonging to the State. To give
any finding with regard to the ownership of the property invariably we have
to look at the Covenant for the reason the Covenant is the source of title
for the plaintiff. At any stretch of imagination, we cannot agree with the
finding of the appellate Court that the right of the plaintiff is a pre-
existing right. By all means the right of the plaintiff flows from the
Covenant by virtue of which the plaintiff claims title over these
properties, which according to her are declared as private properties of
the Ruler.
30. A bare perusal of Article 363 and the relief sought by the plaintiff
in the Suit in unequivocal terms attracts the bar contained in Article 363
of the Constitution of India. The Court below distinguished the judgment in
Draupadi Devi’s case that it is not applicable to the facts of the present
case. We are of the considered opinion that the rule of law laid down in
that case applies to the case on hand. This Court in the case of Draupadi
Devi held:
44. “… …The Covenant is a political document resulting from an act of
State. Once the Government of India decides to take over all the properties
of the Ruler, except the properties which it recognises as private
properties, there is no question of implied recognition of any property as
private property. On the other hand, this clause of the Covenant merely
means that, if the Ruler of the Covenanting State claimed property to be
his private property and the Government of India did not agree, it was open
to the Ruler to have this issue decided in the manner contemplated by
clause (3). Clause (3) of Article XII does not mean that the Government was
obliged to refer to the dispute upon its failure to recognise it as private
property. Secondly, the dispute as to whether a particular property was or
was not recognised as private property of the Ruler was itself a dispute
arising out of the terms of the Covenant and, therefore, not adjudicable by
municipal courts as being beyond the jurisdiction of the municipal courts
by reason of Article 363 of the Constitution”.
31. The above ratio laid down by this Court makes one to understand that
prior to Covenant, the ownership of all the properties remain vested with
the Ruler, but once the Covenant is entered into, the Government takes over
all the properties except those which the Government recognises as private
properties of the Ruler. This court had categorically held that there
cannot be any implied recognition of the property as private property at
any later stages when an opportunity had already been granted to raise this
issue in terms of clause (3) of Article 12 before defined period. In the
case on hand also, similar clause existed where a dispute to recognise a
property as private property could be raised only before 1st July, 1949. A
dispute whether a property was recognised as private property or not was
held to be a dispute arising out of the terms of Covenant, thereby barring
the Courts to adjudicate the same in view of Article 363 of Constitution.
32. Also in Madhav Rao Jivaji Rao Scindia (supra), this Court while
interpreting Article 363 of the Constitution, observed that a dispute
relating to the enforcement, interpretation or breach of any treaty etc.,
is barred from the Courts’ jurisdiction. The bar comes into play only when
the dispute is arising out of the provisions of a treaty, Covenant etc., as
in the present case. This Court held that Article 363 has two parts. The
first part relates to disputes arising out of Agreements and Covenants etc.
The jurisdiction of this Court as well as of other Courts is clearly barred
in respect of disputes falling within that part. Then comes the second part
of Article 363 which refers to disputes in respect of any right accruing
under or any liability or obligation arising out of any of the provisions
of the Constitution relating to any agreement, Covenant etc. It was
specifically mentioned that right as mentioned in Article 363 signifies
property.
33. In yet another case, Karan Singh (Dr.) vs. State of J&K, (2004) 5 SCC
698, while examining the applicability of Article 363 of the Constitution
to the disputes arising out of a treaty, Covenant etc., this Court observed
that all Courts including the Supreme Court is barred to determine any
right arising out of a Covenant . The correspondence exchanged between the
Ruler and the Government would amount to agreement within the meaning of
Article 363.
34. In view of our above discussion and as settled by this Court in the
above judgments, Covenant was an act of State and any dispute arising out
of its terms cannot form the subject matter in any Court including the
Supreme Court, and there cannot be any implied recognition of the property
as private property at any later stages when an opportunity had already
been granted to raise issue in terms of clause 3 of Article 12 before
defined period; above all, the properties do not find place in the
Covenant. The plaintiff is trying to interpret the Covenant that all
properties which are in the custody of the Household Department are the
personal properties of the Ruler. We feel that such interpretation and
implied recognition is impermissible as held by this Court in Draupadi
Devi. Hence the Court below erred in entertaining the Suit without
properly taking into consideration the judgments and the proposition of law
laid down by this Court in catena of cases. Hence we are of the view that
the relief in the Suit falls within the ambit of Article 363 of the
Constitution of India and the Suit is not maintainable. Accordingly first
issue is answered in favour of the appellant/State and against
respondent/plaintiff.
35. Once we have given our finding on the maintainability of the Suit, we
need not to go into the other issues. But in view of the alternative
argument advanced by the counsel, we are of the view that we should throw
some light on those issues. It is the finding of the Trial Court that the
lands were retransferred to the Holkar State in the year 1951, and re-
transferring is without any authority and it is bad. The Trial Court held
that though it is the specific case of the plaintiff that they are paying
Tauzi, there is no evidence to show that they have paid Tauzi prior to 1951
and the correspondence of the plaintiff and her father shows that the Suit
scheduled properties were not included in item no 14 of the list of
properties and further held that Suit scheduled properties were allotted to
the Forest Department. First coming to the issue of transfer of land to
Forest Department, it is settled law that parties are governed by their
pleadings and the burden lies on the person who pleads to prove and further
plaintiff has to succeed basing on the strengths of his case and cannot
depend upon the weakness of the defendant’s case. The State having alleged
several things, has failed to mark any document to show that the properties
were transferred to the Forest Department and the retransfer in the year
1951 was without any authority of law. Though the State has filed certain
documents before us, but as they are not part of the evidence, we are not
inclined to look at those documents.
36. The appellant State as defendant in the Suit has marked two
documents. While remanding the appeals preferred by the defendant and the
plaintiff, the appellate Court gave a categorical finding that the Trial
Court should not permit any of the parties to adduce further evidence. The
remand order of the appellate Court was not questioned by the State. After
the remand, the Suit was dismissed by the Trial Court wherein a finding was
recorded that no evidence is produced before the Court to show that the
property was transferred to the Forest Department. This finding has become
final as no cross appeal is preferred by the appellant/State. Hence we are
not inclined to look into these documents.
37. The plaintiff by marking the voluminous documentary evidence and by
examining PW 5 and PW 7 established that they were in continuous possession
of property till 1960, except for a short period when the Suit scheduled
properties were given to the Army Department. Tauzi was also paid by
Maharaja and later by the plaintiff. The finding of the Trial Court in this
regard that the plaintiff has failed to adduce any evidence to show that
Tauzi was paid prior to 1951, is contrary to the material on record. In
spite of all these factors that the Maharaja and the plaintiff were in
continuous possession of property and paid Tauzi for the properties,
however long the plaintiff’s possession may be and paying of the taxes will
not give her any right seeking declaration of ownership when these
properties are part of a Covenant and calls for an interpretation of the
Covenant. In addition to this, the plaintiff wrote a letter to the
Additional Chief Secretary, Government General, Administrative Department,
Bhopal, dated 1st October 1962, wherein she requested for a declaration of
the Suit scheduled properties as the private properties as declared by the
Maharaja of Holkar which clearly shows that the whole cause of action and
the reliefs sought for in the Suit are based on the Covenant and the rights
flown from the Covenant.
38. We are not inclined to go into the discussion whether the re-transfer
of land is without authority or not, whether these properties are under the
control of Household Department as it amounts to deciding the dispute
arising out of the Covenant, which is barred under Article 363 of the
Constitution of India. Even assuming for a minute that these properties
are under the control of the Household Department, still the plaintiff
cannot succeed for the reason that Maharaja of Holkar in the list of
properties furnished has failed to mention these properties specifically,
and interpretation of Covenant is not permissible as per settled law.
39. The other finding which we are not able to accept is that the
Maharaja is the owner as well as the tenant of the property. All the rights
whichever pleaded by the plaintiff are the rights flown only from the
Covenant. As provided under clause 12(1) of Covenant, admittedly by the
letter dated 29-9-1962 the respondent/plaintiff claimed the title by way of
Covenant and not by any such tenancy rights. Hence, the respondent
plaintiff cannot claim any right of tenancy over the Suit schedule
properties and such plea is misconceived and she is estopped from raising
such a plea.
40. Now we would like to deal with the other issue i.e., applicability of
Section 158(2) of the Madhya Pradesh Land Revenue Code, 1959. The said
Section came into force with retrospective effect from October 2, 1959 and
reads thus:
158(2): A Ruler of an Indian State forming part of the State of Madhya
Pradesh who at the time of coming into force of this Code, was holding land
or was entitled to hold land as such Ruler by virtue of the Covenant or
agreement entered into by him before the commencement of the Constitution,
shall, as from the date of coming into force of this Code, be a Bhumiswami
of such land under the Code and shall be subject to all the rights and
liabilities conferred and imposed upon a Bhumiswami by or under this Code.
As per Section 158(2) in order to confer the rights of Bhumiswami a Ruler
should be holding land or he should have been entitled to hold land as such
Ruler by virtue of a Covenant or agreement entered into by him. The
plaintiff/respondent cannot seek the status of Bhumiswami independent of
the Covenant because the rights under Section 158(2) arise out of the
Covenant itself. The source to hold the land arises by virtue of a
Covenant. When the right so claimed by way of Covenant is disputed and the
relief of settling these disputes is barred under Article 363 of the
Constitution, in our considered view, one cannot claim to be “Bhumiswami”
under Section 158(2) of the Madhya Pradesh Land Revenue Code, independent
of the Covenant. Accordingly, this issue is held in favour of
appellant/State and against the respondent/plaintiff. Hence we are of the
considered opinion that the Suit filed by the plaintiff for declaration and
injunction is barred under Article 363 of the Constitution of India and the
plaintiff is not entitled for any relief under Section 158(2) of the Madhya
Pradesh Land Revenue Code claiming the rights of Bhumiswami.
41. For all the foregoing reasons, we allow these appeals by setting
aside the impugned judgments of the High Court and consequently the Suit is
dismissed. However, there shall be no order as to costs.
……………………………………J.
(RANJAN GOGOI)
……………………………………J.
(N.V. RAMANA)
NEW DELHI,
JULY 15, 2015
