Gajendragadkar, J. - (1.) The question of law which arises for our decision in this appeal is whether the Kalambandis under which the appellant's right to receive Rs. 21-8-0 per month by way of Bachat (balance) is guaranteed constitute an existing law within the meaning of Art. 372 of the Constitution. This question arises in this way. The appellant Madhaorao Phalke describes himself as an Ekkan and claims that as such Ekkan he and his ancestors have been receiving the monthly payment of Rs. 21-8 from the State of Madhya Bharat. It appears that the appellant's ancestors had accompanied the Scindias to Gwalior from Maharashtra about 200 years ago, and had rendered military service in conquering the territory of Gwalior. In recognition of this service the appellant's ancestors were granted a fixed amount of money per month, and this amount has been received by the appellant's family for several generations past. The right to receive this amount has been recognised by the Rulers of Gwalior in several statutes, orders, rules or regulations having the force of statutes; amongst them are the Kalambandis of 1912 and 1935. On April 18, 1952, the Government of Madhya Bharat issued an executive order terminating the said payment to the appellant; that is why the appellant had to file the present petition in the High Court of Madhya Bharat against the State of Madhya Bharat and the Government of Madhya Bharat, Revenue Department, respondents 1 and 2 respectively under Art. 226 of the Constitution. In this petition the appellant had prayed for an order that a writ in the nature of mandamus, or in the alternative an appropriate direction or order be issued calling upon the respondents to forbear from giving effect to the said executive order. In his petition the appellant challenged the said order on two grounds. It was urged that since the appellant's right to receive the specified amount had been statutorily recognised by the State of Gwalior it was not open to respondent 1 to extinguish that right merely by an executive order. In the alternative it was contended that the right to receive the said amount from month to month was property to which the appellant was entitled, and he could not be divested of that property without the payment of compensation under Art. 31 of the Constitution.
(2.) These pleas were denied by the respondents. The respondent's case was that the payment made to the appellant's ancestors and to him was by way of emoluments for military service and did not constitute property, and that the Kalambandis on which the appellant relied did not constitute an existing law under Art. 372. It appears that along with the appellant ten other person had filed similar petitions making prayers for similar writs or orders against the respondents and their pleas were similarly challenged by the respondents. All the eleven petitions were accordingly tried together.
(3.) These petitions were heard by a Full Bench of the Madhya Bharat High Court consisting of Shinde, C. J. and Dixit and Newaskar, JJ. All the three learned judges agreed in holding that the Kalambandis on which the petitioners had rested their case were orders issued by the Ruler for the purpose of reorganising the scheme of administration and that they did not amount to law or regulation having the force of law. Dixit J. gave a specific reason in support of his conclusion that the Kalambandis did not amount to a statute. He held that in Gwalior there was a well recognised law-making machinery or custom, and since the Kalambadis in question did not satisfy the requirements of the forms and solemnities specified in that behalf they could not claim the statues of a statute. In the result all the petitions were dismissed. The appellant then applied for and obtained a certificate from the High Court under Art. 133 (1) (c) of the Constitution, and it is with the said certificate that he has come to this Court in the present appeal.;