PREM NATH KAUL vs THE STATE OF JAMMU & KASHMIR. Supreme Court, 02-03-1959
| Judge | DAS, SUDHI RANJAN (CJ),DAS, S.K.,GAJENDRAGADKAR, P.B.,WANCHOO, K.N.,HIDAYATULLAH, M. |
| Parties | PREM NATH KAULTHE STATE OF JAMMU & KASHMIR |
| Date | 02 March 1959 |
| Docket Number | Appeal (civil) 152 of 1955 |
| Court | Supreme Court (India) |
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PETITIONER:
PREM NATH KAUL
Vs.
RESPONDENT:
THE STATE OF JAMMU & KASHMIR
DATE OF JUDGMENT:
02/03/1959
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
DAS, SUDHI RANJAN (CJ)
DAS, S.K.
WANCHOO, K.N.
HIDAYATULLAH, M.
CITATION:
1959 AIR 749 1959 SCR Supl. (2) 270
CITATOR INFO :
R 1962 SC1737 (11)
RF 1972 SC1738 (16)
F 1973 SC 231 (15)
R 1976 SC1031 (11)
RF 1990 SC2072 (44)
ACT:
Landed Estate, Abolition of-Validity of enactment-
Legislative Competency of Yuvaraj Karan Singh-Jammu and
Kashmir Big Landed Estate Abolition Act, XVII of 2007.
HEADNOTE:
This appeal challenged the validity of the Jammu and Kashmir
Big Landed Estate Abolition Act, XVII Of 2007 which was
enacted by Yuvaraj Karan Singh on October 17, 1950, in
exercise of the powers vested in him by S. 5 of the Jammu
and Kashmir Constitution Act 14 of 1996 (1930) and the final
proclamation issued by Maharaja Hari Singh on June 20, 1949,
by which he entrusted all his powers and function to the
Yuvaraj. The object of the Act was to improve agricultural
production by abolishing big landed estates and transferring
land to the actual tillers of the soil. The suit out of
which the present appeal arises was brought by the appellant
in a representative capacity for a declaration that the Act
was void, inoperative and ultra vires and that he was
entitled to retain peaceful possession of his lands. Both
the trial Court as also the High Court in appeal found
against him and dismissed the suit. Hence this appeal by
special leave.
The validity of the Act was challenged mainly on the ground
that Yuvaraj Karan Singh had no authority to promulgate the
Act. It was contended that (i) when Maharaja Hari Singh
conveyed his powers to the Yuvaraj by his proclamation of
June 20, 1949, he was himself a constitutional monarch and
could convey no higher powers, (2) the said proclamation
could not confer on the Yuvaraj the powers specified
therein, (3) the powers of the Yuvaraj were substantially
limited by his own proclamation issued on November 25, 1949,
by which he sought to make applicable to his State the
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Constitution of India, that was soon to be adopted by its
Constituent Assembly, in so far as it was applicable, (4) as
a result of the application of certain specified Articles,
including Art. 370 of the Constitution of India to the State
of Jammu Kashmir, the Yuvaraj became a constitutional
monarch without any legislative authority or powers and (5)
the decision of the Constituent Assembly of the State not to
pay compensation was invalid since the Assembly itself was
not properly constituted.
Held, that Yuvaraj Karan Singh, when lie promulgated the
Act, had the power to do so and its validity was beyond
question.
271
It was indisputable that prior to the passing of the
Independence Act, 1947, Maharaja Hari Singh like his
predecessors, was an absolute monarch so far as the internal
administration of his State was concerned. Section 3 Of the
Regulation 1 of 1991 (1934) issued by the Maharaja not only
preserved all his preexisting powers but also provided that
his inherent right to make any regulation, proclamation or
ordinance would remain unaffected. The Constitution Act 14
of 1996 (1939) promulgated by him did not alter the
position. Sections 4 and 5 of that Act preserved all the
powers that he had under s. 3 of the Regulation 1 of 1991
and S. 72 preserved his inherent powers so that he remained
the same absolute monarch as he was before.
With the lapse of British paramountcy on the passing of the
Independence Act, 1947, the Maharaja continued to be the
same absolute monarch, subject to the agreements saved by
the proviso to S. 7 Of the Act, and in the eyes of
international law could conceivably claim the status of an
independent sovereign.
It was unreasonable to suggest that the provisions of the
Instrument of Accession signed by the Maharaja on October
25, 1947, affected his sovereignty, in view of cl. 6
thereof, which expressly recognised its continuance in and
over his State.
There was no substance in the argument that as a result of
his proclamation issued on March 5, 1948, which replaced the
emergency administration by a popular interim Government
headed by Sheik Mohammad Abdullah and constituted a Council
of Ministers who were to function as a cabinet, the Maharaja
became a constitutional monarch. The cabinet had still to
function under the Constitution Act 14 of 1996 (1939) under
the overriding powers of the Maharaja.
When the Maharaja- on June 20, 1949, therefore, issued the
proclamation authorising the Yuvaraj to exercise all his
powers, although for a temporary period, it placed the
Yuvaraj in the same position as his father till the
proclamation was revoked. The Maharaja was himself an
absolute monarch and there could be no question as to his
power of delegation.
In Re. Delhi Laws Act, 1912, [1951] S.C.R. 747, referred
to.
The proclamation issued by the Yuvaraj on November 25, 1949,
did not vary the constitutional position as it stood after
the execution of the Instrument of Accession by the Maharaja
nor could it in any way affect the authority conferred on
the Yuvaraj by his father.
The contention that the application of certain specified
Articles of the Indian Constitution to the State by the
Constitution (Application to Jammu and Kashmir) Order (C. O.
10) issued by the President on January 26, 1950, affected
the sovereign powers of the Yuvaraj was not correct.
Neither the scheme of Art. 370 nor the explanation to cl.
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