Karnataka High Court
Srikantadatta Narasimharaja Wodeyar, ... vs State Of Karnataka And Others on 6 November, 1997
Equivalent citations: ILR1998KAR960, 1998(2)KARLJ587
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
ORDER G.C. Bharuka, J.
1. The only son of the erstwhile late Jayachamarajendra Wodeyar, Maharaja of Mysore, is the petitioner before us. He has filed these two writ petitions inter alia, questioning the validity of the Government Order No. GAD 2 PSR 76, dated 26-2-1976, passed by the State Government by which it has taken over the possession and management of the Mysore Palace along with adjoining lands and moveables therein (hereinafter called the "properties") in public interest and the continuance thereof on the ground of violation of Articles 14, 21, 31-A(b) and 300-A of the Constitution of India and for consequential relief of directing the State Government and its servants to restore the possession and management of the said properties to the heirs of late Maharaja.
It is a historical fact that the State of Mysore was being ruled by the Wodeyar family. But with execution of the Instrument of Accession by the Maharaja of Mysore on 9-8-1947 and its acceptance by the Governor General of India on 16-8-1947, read with supplementary Instrument dated 1-6-1949, the said Indian State acceded to the Dominion of India on 1-6-1949.
2. Subsequently, an agreement dated 23-1-1950 was entered into between the Government of India and Maharaja of Mysore in respect of properties and privy purse. Clauses (1) and (2) of the Article II of the said agreement which is material for the present purpose, is to the following effect:
Article II "(1) The Maharaja 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 this agreement.
(2) The Maharaja will furnish to the Government of India before the Twenty-third day of January, 1950, an inventory of all the immovable properties, securities and cash balances held by him as such private property".
3. As stipulated in the aforesaid clauses, the Maharaja submitted an inventory of his private movable and immovable properties as on 26-1-1950. The Palace at Mysore and the adjoining lands are at Sl. No. 22 of the inventory. The note appended to the said serial number pertaining to the Palace at Mysore is of material bearing on the present controversy. The said note reads thus:
"Note.--(1) This item of the property will be inalienable and will be preserved for use by the Ruler and his successors. The State Government will bear the expenditure on the maintenance of the building, grounds and gardens inclusive of water supply and electricity.
(2) The temples situated within the compound of the Palace will continue to be managed as at present and will receive grants from the State Government at rates not below those now sanctioned.
(3) For the three Palaces at Mysore, Bangalore and Yern Hill, Ootacamund, electricity and water supply charges will be free and the expenditure to be borne by the State Government on (a) general maintenance and (b) the gardens will be subject to a maximum of Rs. 75,000/- under each of the two items".
4. On receiving the said Inventory, Sri B.P. Menon, the then Secretary to the Government of India in the Ministry of States, under his letter dated 8-1-1951 addressed to the Maharaja communicated the acceptance of the inventory as of private properties of the Maharaja. The material part of the letter was as under:
"Government of India, with the concurrence of the Government of Mysore, have accepted as your private property all the items specified in the enclosed inventory".
5. From the aforesaid stipulations in the agreement between the Maharaja and the Government of India, it is quite clear that the properties in question had been conclusively accepted as private properties of the Maharaja and his successors including the petitioner. It is also not in dispute that as per the said agreement, the State Government was required to bear the expenditure on the maintenance of the buildings, grounds, and gardens, inclusive of water supply and electricity supply charges.
6. The makers of the Constitution of India gave constitutional recognition to the said agreement by incorporating Article 291 therein, which read thus:
"291. Privy purse sums of Rulers.--Where under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of this Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the government of the Dominion of India to any Ruler of such State as privy purse.-
(a) such sums shall be charged on, and paid out of, the Consolidated Fund of India; and
(b) the sums so paid to any Ruler shall be exempt from all taxes on income".
7. Similarly, under Article 362 special provisions were made for preservation of rights and privileges of Rulers of Indian States, which read thus:
"362. Rights and privileges of Rulers of Indian States.--In the exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in Article 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State".
8. Subsequently, in 1971 the Parliament felt that the concept of Rulership, with privy purses and special privileges unrelated to any current functions and social purposes, was incompatible with an egalitarian social order. Accordingly, it passed "the Constitution (Twenty-sixth Amendment) Act, 1971" which was brought into force from 28-12-1971. By this amendment, Articles 291 and 362 were omitted and new Article 363-A was inserted so as to terminate expressly the recognitions already granted to the Rulers of erstwhile princely States and their successors. The newly inserted article reads as under:
"363-A. Recognition granted to Rulers of Indian States to cease and privy purses to be abolished.--
Notwithstanding anything, in this Constitution or in any law for the time being in force.-
(a) the Prince, Chief or other person who, at any time before the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, was recognised by the President as the Ruler of an Indian State or any person who, at any time before such commencement, was recognised by the President as the successor of such Ruler shall, on and from such commencement, cease to be recognised as such Ruler or the successor of such Ruler;
(b) on and from the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, privy purse is abolished and all rights, liabilities and obligations in respect of privy purse are extinguished and accordingly the Ruler or, as the case may be, the successor of such Ruler, referred to in clause (a) or any other person shall not be paid any sum as privy purse".
9. It appears that consequent to the said constitutional amendment many questions were raised before the Government of India regarding the impact of the amendment on the private properties of the former Rulers. Keeping in view those questions, the Government of India in its Ministry of Home Affairs, under its letter dated 20-10-1972, addressed to the Chief Secretaires of all the States, clarified the legal position in the said regard, For the present purposes Paragraphs 2 and 7 of the said letter are only relevant, which read as under:
"2. Under the Covenants/Merger Agreement, the Rulers were guaranteed full enjoyment, use and ownership of the properties which they claimed as private properties (as distinct from State Properties). After the Government of India recognised these properties as their private properties, the Government of India is of the view that the Constitution (Twenty-sixth Amendment) Act, 1971, does not affect the properties which were recognised as private properties of the Rulers in accordance with the settlement with them. That being so, the properties which had vested in the Rulers in accordance with these settlements will continue to remain with them.
3 to 6. xxx xxx xxx.
7. The Rulers were also given certain privileges i.e., shooting and fishing rights, free supply of water and electricity, etc., Instructions have already been issued for the withdrawal of privileges that had been given by executive instructions vide this Ministry's letter No. T.21/3/72-Pol. III, dated the 29th April, 1972".
10. Keeping in view the said historical and constitutional developments taking place from the day of accession of State of Mysore with the Dominion of India and abolition of privy purses and privileges conceded to the Ex-Rulers and their successors, it emerged as a hard fact that though the properties claimed by the Maharaja of Mysore as his private properties retained its character as such, and devolved on his legal heirs by rule of succession as per the personal law governing the family but they were deprived of claiming the expenditure on the maintenance of the properties and the privilege of free water supply and electricity. This legal position is accepted by the learned Counsel appearing for the petitioner as well as the respondent State Government.
11. It is the case of the petitioner that because of abolition of privy purse and the sudden demise of Maharaja on 23-9-1974, the Royal family started feeling great financial stress because of levy of State duty and outstanding arrears of Income-tax and Wealth tax. According to him, consequent to the abolition of privy purses, a significant number of workers in the Palace had to be retrenched since it was not possible to maintain them with meagre resources. Apart from the said aspects the family started feeling difficulty in meeting even its day-to-day expenses befitting the traditions of the family. They also found it difficult to manage and maintain the properties.
12. In order to tide over the aforesaid situation coupled with the wishes of the late Maharaja to preserve the major portion of the Royal properties for public use, the petitioner with some of the other heirs, approached the State Government through several letters dated 18-8-1975, 8-9-1975, 7-2-1976, and 10-2-1976 to sort out a solution. The letter dated 18-8-1975 (Annexure-K) was addressed to the Chief Secretary to the State Government inter alia, with the following request:
"6. It has not been possible to register the Trust in respect of the Mysore Palace excluding the area occupied by us and pending final decision in respect of the matters pertaining to the Bangalore Palace, we feel it necessary that effective steps are taken for the maintenance and proper preservation of both the Palaces, the priceless properties and jewellery which had been put into the Trust. After careful consideration of all the factors, involved, we are convinced that it would be in the interest of everybody, the Government take over the possession of the Palace at Mysore excluding the property occupied by us and 450 acres of lands belonging to the Palace at Bangalore, Except the main Palace building and 10 acres of land surrounding the main Palace, and all the movable properties which are proposed to be put into the Trust, so that they are properly maintained and preserved for public purposes. Pending finalisa-
tion of the quantum of compensation interim compensation of not less than 50 lakhs may kindly be arranged to be paid to us immediately to enable us to meet the various demands, and the balance of compensation may be arranged to be paid in the form of Bonds.
7. We agree that the nature and character of the balance Palace lands, except the main Palace the amount to be paid therefore and other incidental and ancillary matters may be settled later in accordance with law".
13. A request similar to the above was again made under their letter dated 7-2-1976, jointly by Rajamata and the petitioner to take over the management of the properties subject to payment of compensation as suggested in the letter. But since the Government did not respond to the said request, letter dated 10-2-1976 was addressed by or on behalf of the seven heirs of the Maharaja to take over the maintenance and management of the property in question. The contents of the letter are as under:
"In modification of our letters dated 18-8-1875, 8-9-1975 and 7-2-1976 we hereby agree and request that pending finalisation of the matter (i) the Palace in Bangalore along with the entire vacant land around it; and (ii) the Palace in Mysore, except the portion occupied by us, along with the entire vacant land etc., around it; and (iii) the movables in both the Palaces may be taken possession of by the State Government forthwith for maintenance and management.
14. On receiving the last letter dated 10-2-1976, referred to above, from the heirs of the Maharaja, the State Government immediately responded by passing the impugned Government Order dated 26-2-1976, the material part whereof reads as under:
"ORDER No. GAD 2 PSR 76, Bangalore, dated the 26th February, 1976 Government after careful consideration and in the requirements of overall public interest are pleased to direct that the Palace in Mysore along with the entire vacant lands etc., around it except the portion occupied by the heirs of Sri Jayachamarajendra Wodeyar and all the movable therein be taken possession of in terms of the representation made by the heirs and legal representatives".
15. After taking the decision as above tinder the impugned order, the Superintendent Engineer, PWD was directed to take possession of the Mysore Palace and the surrounding lands and other immovable properties including jewelleries and paintings etc., after drawing property inventory for the purpose of maintenance and preservation of the said properties. Appropriate provisions were also directed to be made for staff and expenses.
16. The allegation of the petitioner is that though the respondent after taking over the properties for management and maintenance started collecting rents, entrance fee to the Palace etc., running into lakhs of rupees per month but not a rupee was paid to the Royal family at any point of time nor any provisions were made to liquidate the mounting tax arrears. The Government also did not take any step for paying any compensation to the family as desired by them. They also have the grievance that for parting with the invaluable properties in question, since the date of handing over, in return they have been met with only harassment, contemptuous treatment, distress and disillusionment. Faced with such a situation, the petitioner wrote a letter to the respondent in April, 1978 (Annexure-H) withdrawing the offer made by the heirs regarding management and maintenance of the property, but the Government did not respond to the same and maintained complete silence over the issue. According to the petitioner, forced with the said circumstances, particularly the callous attitude of the State Government, under his letter dated 15-3-1975 (Annexure-F) after setting out the facts leading to the handing over the properties to the State Government and their failure in honouring the trust reposed in them, requested for restoration of the properties to the petitioner by concluding that:
"Looking to the above mentioned facts, I am now tired and have lost hope that anything can be done in the matter by the Government because I have suffered from 1976 to March, 1985, a more than reasonable period. Hence, I have decided to get possession of the Mysore Palace back from the Government. You are therefore requested to issue necessary orders in the matter".
17. But since the Government did not respond to the said request therefore, the present writ petitions, with the prayers as noticed above, were filed.
18. The respondents, in their statement of objections, have not disputed the ownership of the Maharaja and his successors over the properties and the revocation of authority given to them for management by the owners, but they have tried to justify their right of management in the public interest. The averment made in this regard is to the following effect:
The Government has no intention of depriving the petitioner the possession of the Mysore Palace. The petitioner continues to reside there. The Government took possession of a portion of Mysore Palace for purposes of management in public interest. At the unconditional request of the heirs and legal representatives of late Maharaja Sri Jayachamarajendra Wodeyar, no period was specified by either party for such management and this situation will not continue indefinitely since the Government have already issued relevant notifications to acquire the properties at Mysore and Bangalore under the relevant laws. Thus, it is submitted that there is no violation of fundamental rights or any right for that matter nor is the present possession by the Government is arbitrary, illegal or unjust".
19. It may not be out of place to note here that preliminary notification under Section 4(1) of the Land Acquisition Act, 1894 was published by the State Government on 1-7-1986 for acquiring the properties in question and the validity whereof was questioned by the petitioner herein in W.P. No. 21059 of 1986 but the same was dismissed on 23-9-1994 on the ground of being prematured. Against the said order, W.A. No. 2734 of 1994 was preferred in which Rule and ad interim order of stay of further proceedings was ordered on 5-12-1994, but recently the same has been dismissed as withdrawn on 4-11-1997. But, to our mind, the said aspect does not have any material bearing on the issues raised herein since the acquisition proceedings has to take its course as per the procedure laid down under the Land Acquisition Act.
20. Under the aforesaid facts and circumstances, the questions which fall for our consideration are:
(i) Under what authority of law the State Government has taken possession and management of the properties?
(ii) If the said act of management and possession of property is found to be contrary to law or without authority of law, then whether its act can be held as arbitrary and unbecoming of a welfare State committed to the rule of law and thus hit by Articles 14, 31-A(1)(b) and 300-A of the Constitution of India?
(iii) Whether the continued possession of the State Government over the properties without authority of law amounts to deprivation of property of the petitioner in contravention of Article 300-A of the Constitution of India, setting out a cause of action for issuance of a writ of mandamus for handing over the possession of the property to the petitioner?
(iv) Whether non-handing over the property to the petitioner, which if efficiently managed can prove to be income bearing in nature, amounts to affecting the right of livelihood of the petitioner as enshrined in the Article 21 of the Constitution requiring interference under Article 226 thereof?
21. For answering the above issues, the first and the foremost aspect to be ascertained is the nature of jural relationship that came into being between the heirs of the Maharaja and the State Government vis-a-vis the present properties.
22. As discussed above, it is not in dispute that the heirs of the Maharaja, including the petitioner are owners of the present properties. It is also not in dispute that at the request of the owners, the State Government pursuant to its executive powers had passed the impugned order dated 26-2-1976 and took over the possession and management of the properties.
23. The executive powers of the State Government and the manner of its exercise have been enumerated in Articles 162, 166, 298 and 299 of the Constitution which are being reproduced hereunder:
"Article 162. Extent of executive power of State.--
Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
Article 166. Conduct of business of the Government of a State. -- (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
Article 298. Power to carry on trade, etc. -- The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose:
Provided that. -
(a).....
(b)....
Article 299. Contracts. -- (1) All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise".
24. Mrs. Chidambaram, learned Senior Counsel appearing for the petitioner, has submitted that the impugned Government order dated 26-2-1976 made by the State Government is void ab initio since, under Article 31 (now Article 300-A) of the Constitution which was very much on the statute book at the material time, no person could have been deprived of his property except by the authority of law made by the competent legislature. She also submitted that the impugned order suffers from another Constitutional infirmity arising out of Article 31-A(1)(b) which forbids even the Legislature authorising the taking over of the management of any property for an unlimited period even in public interest.
25. On the other hand, Sri Narasimha Murthy, learned Senior Counsel appearing for the State, has submitted that because of the offer given by the petitioner and the other co-owners of the property under their letters dated 18-8-1975, 8-9-1975, 7-2-1976 and 10-2-1976 and the acceptance thereof by the State Government under the impugned order dated 26-2-1976, a concluded contract had taken place between the parties in pursuance whereof only the possession and management of the properties was taken over. According to him, unless the true scope and purport of the said contract is determined on the basis of oral and documentary evidence to be lead by the parties, their competing rights and obligations cannot be adjudicated. According to him, these are all factual aspects which can be ascertained only in a properly constituted civil suit and not by taking recourse to the writ jurisdiction of this Court.
26. Mr. Narasimha Murthy has tried to develop the case of the State by further submitting that though keeping in view the contents of the four letters referred to above, as written by some of the heirs of the Maharaja, and the impugned Government order, it cannot be, with any reasonable certainity, said anything about the nature of the contract but it can be construed as either one of agency or for sale of the property itself. His submission is that if it could be construed as a contract of agency then no doubt under Section 201 of the Indian Contract Act, 1872, the heirs of the Maharaja, being the principals, had an unfettered right to terminate the same but Section 221 of the said Act authorises the State to retain the possession of the property till the amounts spent on the management are not fully accounted for or paid to the State. His alternative submission is that if the agreement is taken to be that for sale then the State has a right to retain the possession under Section 53-A of the Transfer of Property Act, 1882.
27. In my opinion, for appropriately weighing the rival contentions, the crucial question to be determined is as to whether any contract at all had came into existence between the parties and if so, what was its nature. For resolving this complex question, it would be better to reproduce the Government order in extenso. It reads as follows.--
"ORDER No. GAD 2 PSR 76, Bangalore, dated the 26th February, 1976 Government after careful consideration and in the requirements of overall public interest are pleased to direct that the Palace in Mysore along with the entire vacant lands, etc., around it except the portion occupied by the heirs of Sri Jayachamarajendra Wodeyar and all the movables therein be taken possession of in terms of the representation made by the heirs and legal representatives.
2. The Superintendent Engineer, Public Works Department, Mysore Circle, Mysore is directed to make all necessary arrangements to take over vacant possession of the Palace at Mysore along with the surrounding areas and movables therein as indicated in Para 1 from the heirs. The Superintendent Engineer shall be responsible for the proper maintenance and preservation of the Palace and the lands surrounding it. For this purpose, the Superintendent Engineer shall, subject to the general supervision and control of the Chief Engineer, PWD (Communications and Buildings) work under the administrative control of the Chief Secretary to Government.
3. The Superintendent Engineer, Public Works Department, Mysore Circle, Mysore should take over possession of the Palace after drawing an inventory of all movable articles including jewellery, paintings, etc., in the Palace utilising the services of any approved jewellery valuer immediately.
4. For attending to the maintenance of the Palace and the lands surrounding it, sanction is accorded to the creation of posts under the Superintending Engineer, PWD, Mysore Circle, Mysore and to the non-recurring expenditure as indicated in the Annexe to this Government Order for the period ending 31st March, 1977. The Superintending Engineer is requested to take immediate action in consultation with the Chief Engineer (C and B) and the Director of Horticulture to fill all these posts. The Horticultural staff and the Electrical staff sanctioned for the Palace will work under the immediate Administrative control of the Assistant Engineer, Public Works Department in charge of the Palace, subject to technical guidance from the Director of Horticulture wherever necessary.
5. The expenditure on the entire staff during the current year shall be debited to the Head of Account "259 P.W. 1 Direction and Administration" and the same shall be met by re-appropriation from savings.
6. The existing arrangement for guarding the Palace at Mysore made by the Police Department should be continued.
7. Government are also pleased to direct that the Trust Deed made on 28-4-1975, should be treated as defunct.
8. This order issued with the concurrence of the Finance Department vide U. 01--No. D. 778, as dated 13-2-1976.
By order and in the name of Governor of Karnataka Sd/- N. Shankaranarayan Addl. Secretary to Government General Administration Department"
28. It is a matter of record that none of the four letters referred to above written by some of the heirs of the Maharaja, who are the co-owners of the property, were responded to by the State Government by giving any reply to those either accepting or rejecting the offers made by the heirs. Further, in none of these letters the heirs had expressed any desire to sell the property to the State Government. So far as the properties are concerned, the repeated request made to the Government was to take over the property for its safety and proper maintenance since because of the abolition of privy purse, the royal family was finding it difficult to augment financial resources for its required maintenance which, according to the desire of late Maharaja, was to be preserved for public purpose by creating a trust. In lieu of handing over the management of the properties, the co-owners also requested to pay certain amount of compensation so that they may tide over the financial crisis faced by the family because of tax liabilities arising under the Income Tax, Wealth Tax and Estate Duties Acts. But the State Government instead of making any formal communication to the heirs, came out with the impugned order treating the said letters as representations made by the heirs.
29. In the present case, admittedly, no deed or a formal written contract was executed either for sale to the State Government or creating any agency in its favour for management. But it may not be of much consequence because in case of Union of India and Others v N.K. Private Limited and Another, it has been held by the Supreme Court that.--
"It is now settled by this Court that though the words "expressed" and "executed" in Article 299(1) might suggest that it should be by a deed or by a formal written contract, a binding contract by tender and acceptance can also come into existence on this behalf by the President of India. A contract, whether by a formal deed or otherwise by persons not authorised by the President cannot be binding and is absolutely void".
30. Further, in the case of K.P. Chowdhry v State of Madhya Pradesh and Others, a five-judges bench of the Supreme Court, after analysing earlier judgments of the Supreme Court on the point, has held that Article 299(1) of the Constitution does not permit the acceptance of any implied contract between the Government and another person. In Para 10 of the report, it has been held that.--
"What was said in these cases with respect to Section 175(3) of the Government of India Act, 1935, applies with equal force to Article 299(1) of the Constitution. Two consequences follow from these decisions. The first is that in view of Article 299(1) there can be no implied contract between the Government and another person, the reason being that if such implied contracts between the Government and another person were allowed, they would in effect make Article 299(1) useless, for then a person who had a contract with Government which was not executed at all in the manner provided in Article 299(1) would get away by saying that an implied contract may be inferred on the facts and circumstances of a particular case. This is of course not to say that if there is a valid contract as envisaged by Article 299(1), there may not be implications arising out of such a contract. The second consequence which follows from these decisions is that if the contract between the Government and another person is not in full compliance with Article 299(1) it would not be contract at all and could not be enforced either by the Government or by the other person as a contract".
31. In the present case, though a detailed statement of objection had been filed on behalf of the State Government, but it has nowhere been averred that the possession and management over the properties was taken over by the State Government pursuant to any contract between the parties. Though Mr. Narsimha Murthy secured the original records but still he could not lay hand on any correspondence emanating from any authorised person to the heirs of the Maharaja accepting their offer for management so as to constitute any concluded contract within the meaning of Article 299(1) of the Constitution. As noticed above, the passing of the impugned order and the right to continue with the possession and the management over the properties have been sought to be justified under the guise of public interest. Further, there is nothing to show that the Additional Secretary of the Government who has authenticated the impugned Government order had been authorised to execute the purported contract on behalf of the Governor.
32. It is further of importance to note here that the very reading of the impugned Government Order dated 26-2-1976 unambiguously shows that it was passed in purported exercise of the executive powers recognised under Article 162 of the Constitution since under this order, which is the only document justifying taking over of possession and management of the property, the Government had issued a direction to the above effect authorising its Officers and servants to take necessary steps in the said direction with a clear averment in Paragraph 5 of the order that the expenditure incurred for the management will be debited to the Consolidated Fund of the State. Further, the Additional Secretary has authenticated the order as "by order and in the name of the Governor of the Karnataka" as required under Article 166 and not by expressing it to have been made "on behalf of the Governor" as required under Article 299(1). This Constitutional formality is also indicative of the nature of power which has been exercised by the State Government while issuing the impugned order dated 26-2-1976.
33. For the aforesaid reasons, I am constrained to hold that the possession over the properties was taken over by the State Government under the impugned order passed in the purported exercise of its executive powers under Article 162 read with Article 166 of the Constitution and not as a consequence of any contract entered into between the heirs of the late Maharaja and the State Government in exercise of the executive powers envisaged under Article 298 read with Article 299(1) of the Constitution.
34. Having come to the conclusion that the impugned Government order was issued by the State Government pursuant to its purported executive powers under Article 162 of the Constitution, the only remaining question to be examined is whether it is void from its very inception and thus, does not justify the continuance or possession by the State Government over the property.
35. To test the Constitutional validity of the impugned Government order, I would first refer to the Article 31 of the Constitution as it stood at the material time before its deletion by the Constitution (Forty-fourth Amendment) Act, 1978 with effect from 20-6-1979. It reads as under:
31. Compulsory acquisition of property.--(1) No person shall be deprived of his property save by authority of law.
(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be determined in accordance with such principles and given in such manner as may be specified in such law; and no such law shall be called in question in any Court on the ground that the amount so fixed or determined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash:
Provided that in making any law providing for compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1) of Article 30, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(2-A) xxx xxx xxx.
36. In the case of Dwaraka Das Srinivas v Solapur Spinning and Weaving Company Limited , the Supreme Court was called upon to examine the constitutional validity of the Solapur Spinning and Weaving Company (Emergency Provision) Act, 1950, on the ground of violation of Articles 14, 19 and 31 of the Constitution. Under the said Act, the Central Government was authorised to manage and run the affairs of the mill by the Directors appointed by the Central Government. The Court, on examining the relevant constitutional aspects including doctrine of eminent domain, concluded that the Act having not provided for compensation for deprivation of property of the Company, it violated the fundamental right under Article 31(2) and was thus void. In Para 27 of the judgment, it has been held that.--
"It is more in consonance with the judicial principle that possession after all is nine-tenths of ownership, and once possession is taken away, practically everything is taken away, and that in construing the Constitution it is the substance and the practical result of the Act of the State that should be considered rather than its purely legal aspects".
37. In Paragraph 57 of the judgment in Dwaraka Das Srinivas's case, supra, it has been declared by Bose, J., that.--
"Now Article 31(1) says that no one shall be deprived of property save by authority of law. That to my mind is straightforward and simple. It means that no one's property can be taken away arbitrarily or by executive action. There must be legal sanctioning for every act of deprivation".
38. For testing the constitutional validity of the impugned executive order, it is also necessary to refer at Article 31-A(1)(b) of the Constitution as it is stood at the material time of its amendment by the Constitution (Fourth Amendment) Act, 1955 which was made inter alia for overcoming the above referred judgment of the Supreme Court requiring payment of compensation even for taking over of the management of the property by the State. This Constitutional provision reads thus:
"Article 31-A. Saving of laws providing for acquisition of estates, etc.--(1) Notwithstanding anything contained in Article 13, no law providing for.--
(a) xxx xxx xxx xxx.
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
(c) to (e) xxx xxx xxx xxx.
shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent".
39. The scope and protection to an enactment referred to in Article 31-A(1)(b) providing for taking over of the management of any property has been examined by the Supreme Court in case of Ramanlal Gulabchand Shah v State of Gujarat. In this case, it was held that if the management is taken over without any clear time limit, then the relevant statutory provision authorising, taking over of management cannot seek protection under Article 31-A(1)(b). In Para 12 of the judgment it has been held that.--
"Looking at the matter in the light of Article 31-A as it is today (and it must be deemed to have been so always) 'management' is specially provided in (b) and must be considered under that clause. The words of that clause are 'the taking over of the management of any property'. 'Any property' means property of any kind and would embrace land of landholders and non-landholders alike. The words 'by the State' indicate that the taking over must be by the State. The next requirement is that this taking over must be either in the public interest or in order to secure the proper management of the property. And lastly the taking over must be for a limited period".
40. Coining to the facts of the present case, a bare reading of the impugned order dated 26-2-1976, shows that under this executive order possession of the properties of the heirs of the Maharaja has been taken over for management in overall public interest without specifying any time-limit for the same.
41. As held by the Supreme Court, even a law made by the legislature providing for taking over of possession of properties for management could not have been protected but by providing a clear time limit for retaining the same. A Government exercising executive powers under Article 162 of the Constitution cannot claim protection higher than even the legislature.
42. It may be relevant to notice here that on April 30, 1979, the Constitution (Forty-fourth Amendment) Act, 1978, was passed. By Section 2(a)(ii) of the said Act, sub-clause (f) of clause (i) of Article 19 was omitted from the Constitution and, by Section 2(d), consequential amendments were made in clause (5) of Article 19. By Section 8 of the said Act, Article 31 was omitted from the Constitution. By Section 34, a new chapter, namely, Chapter IV headed "Right to Property", was inserted in Part XII of the Constitution, containing Article 300-A.
43. Article 300-A of the Constitution as inserted by the 44th Amendment Act, reads as under:
"Article 300-A. Persons not to be deprived of property save by authority of law.--No person shall be deprived of his property save by authority of law".
44. In the case of Jilubhai Nanbhai Khachar v State of Gujarat, it has been held by the Apex Court that.--
"The word "law" used in Article 300-A must be an Act of Parliament or of State Legislature, a rule or statutory order having force of law. The deprivation of the property shall be only by authority of law, be it an Act of Parliament or State Legislature, but not by executive fiat or an order. Deprivation of property is by acquisition or requisition or taken possession of for a public purpose".
45. It requires to notice with certain emphasis that Article 162 of the Constitution is qualified by an obstante clause "subject to the provisions of the Constitution". Therefore, the executive power of the State envisaged under Article 162 is hedged with constrains and limitations envisaged under the other provisions of the Constitution. Under the scheme of our Constitution both before and after the 44th Constitutional Amendment the sovereign power of eminent domain to deprive a person of his properties or any right therein, can be exercised only through an Act of the competent legislature and not by passing executive orders as has been done in the present case. Therefore, the impugned Government order authorising its servants to take over the possession of the properties for the purposes of management has to be held as void ab initio and non est in the eye of law rendering their possession over the properties, contrary to the wishes of the owners, as illegal, arbitrary and an instance of gross misuse of State's executive power.
46. Sri Narasimha Murthy, appearing for the State, has raised a plea of estoppel and waiver against the petitioner to defeat the prayer made in the writ petition on the ground that since the possession over the properties was taken over on the representation of the owners, therefore, no writ of mandamus for restoration thereof can be granted. In my opinion, once it is found that the act of the State is violative of Article 14 of the Constitution, then no such plea is admissible to the State in order to perpetuate its illegal acts. Now, it is firmly established that the Article 14 does not only ensures non-discrimination but it is also construed as guaranteeing a fair and lawful treatment at the hands of executive. It is also judicially recognised that arbitrariness is an anti-thesis to reasonableness. In the case of Basheshar Nath v Commissioner of Income-tax, Delhi and Rajasthan and Another, the Constitution Bench of the Supreme Court has held that:
"The very language of Article 14 of the Constitution expressly directs that "the State", which by Article 12 includes the executive organ, shall not deny to any person equality before the law or the equal protection of the law. Thus, Article 14 protects us from both legislative and executive tyranny by way of discrimination.
Such being the true intent and effect of Article 14 the questions arises, can a breach of the obligation imposed on the State be waived by any person? In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because a person tells the State that it may do so? If the Constitution asks the State as to why the State did not carry out is behest, will it be any answer for the State to make that "true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no objection to my doing it". I do not think the State will be in any better position than the position in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State's above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidded fruit. It seems to us absolutely clear, on the language of Article 14 that it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every Welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State".
47. A subsequent Constitution Bench of the Supreme Court again in the case of Olga Tellis v Bombay Municipal Corporation, rejected the preliminary objection of estoppel with respect to fundamental rights. It has been held that:
"The preamble of the Constitution says that India is a democratic Republic. It is in order to fulfill the promise of the preamble that fundamental rights are conferred by the Constitution, some on citizens like those guaranteed by Articles 15, 16, 19, 21 and 29, and some on citizens and non-citizens alike, like those guaranteed by Articles 14, 21, 22 and 25 of the Constitution. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all powerful State could easily tempt an individual to forgo his precious personal freedoms on promise of transitory, immediate benefits".
48. Accordingly, the objection taken by Mr. Narasimha Murthy, based on the plea of estoppel/waiver to defeat the cause of the petitioner is rejected.
49. For the foregoing discussions, the impugned Government Order dated 26-2-1976 taking possession of the Palace in Mysore along with entire vacant land etc., around it and all the movables therein is hereby quashed. The respondents are directed that the possession and management of the said properties be restored to the heirs of late Maharaja of Mysore, Sri Jayachamarajendra Wodeyar or their authorised representative, within a month from today. These writ petitions are accordingly allowed but without any order as to costs.
50. Let a copy of this order be made available to Mr. Narasimha Murthy, learned Senior Counsel for the respondents, for due compliance.