MODI, J. - (1.) THIS is a wrIt application by Abdulkarim Khan and others under Art. 226 of the Constitution and seeks to challenge the order of the Rajasthan State dated the 9th July, 1958 by which the payment of 'khandan' allowances to the petitioners and respondent No. 3 was discontinued with effect from 1st July, 1952.
(2.) THE petitioners Nos. 1 & 2 and respondent no. 3 are admittedly descendants of His Highness Nawab Ameeruddaula of Tonk being the sons of Abdul Qayum Khan. This Abdul Qayum Khan was a grand son of Naseer Mohammed Khan, who was grand son of Nawab Ameeruddaula, but failed to succeed to the 'Gaddi' of Tonk having predeceased his father Nawab Waziruddaula. THE petitioner No. 3 Mst. Amir Begum is the widow of the said Abdul Qayum Khan and is the mother of petitioners Nos. 1 and 2 and respondent No. 3. It is further common ground between the parties that Naseer Mohanmmad Khan became the first holder of the so called "Khandan allowance" which subsequently devolved upon his son Ahmed Khan, and from the latter to Abdul Qayum Khan, and after his death, to the petitioners and respondent No 3, in accordance with the Tonk State Khandan Rules of 1944 (hereinafter called the Rules of 1944). Abdul Qayum Khan died sometime in May, 1948, and it is alleged that he was in receipt of a Khandan allowance of Rs. 159/- per month upto the date of the death, and this date of Abdul Qayum Khan's death has not been disputed in the reply filed on behalf of the State. It is important to mention at this stage that the State of Tonk, as it then was, had integrated with what we may call for the sake of facility "THE first United State of Rajasthan" with effect from the 1st of May, 1948. It is further not disputed before us that the Government of the aforesaid United State of Rajasthan sanctioned the grant of the Khandan allowances in favour of the petitioners and respondent no. 3 in accordance with the Rules of 1944. THE second United State of Rajasthan, which was the pre-constitution State, was then formed on the .7th of April, 1949 and the State of Tonk was merged in it. Under a letter dated the 16th October, 1956 from the Deputy Secretary to the Government of Rajasthan, Jaipur, General Administration Department to the Collector, Tonk (Ex. 4), the case of the petitioners in connection with their Khandan allowance was scrutinised and it was accepted that the petitioners No. 1 & 2 and respondent No. 3 all being legilimate heirs of the original grantee were entitled to get the allowances according to the Rules of 1944 at the rates noted therein against each and sanction of His Highness the Rajpramukh was accorded to the payment of these allowances to the persons concerned for their life time in accordance with the principles enunciated in letter No. F. 18 (10) Rev-11/51 dated the 2nd May, 1952 of the Revenue Department addressed to the Accountant General, Rajasthan. Among other matters, it was mentioned in the 1st mentioned letter that all such allowances would be admissible only for the life time of the grantee and no allowance would be paid to their heirs even though the Rules of 1944 may provide for the continuance of such allowances of them. It is thus clear that the petitioners no.1 & 2 and respondent no. 3 and their mother Mst. Amir Begum continued to get the allowances in question until November, 1937. THEn by the letter dated the 9th July, 1958 (Ex. 5), which we have already referred to above, these allowances were discontinued, and be it noted that they were not merely discontinued prospectively but with retrospective effect from the 1st of July, 1952. It is this order which is sought to be challenged before us. The case of the petitioners is that the petitioners No. 1 & 2 and respondent No. 3 were in receipt of their allowances under the Rules of 1944, which had been duly passed by the sovereign of the State of Tonk as it then was, and that these Rules continued to be in force as a matter of law until the Rajasthan Cash Jagirs Abolition Act, 1958 (Act No. 29 of 1958 hereinafter to be called the Act of 1958) came into force from the 21st of July, 1958, and it is, therefore, contended that the order dated the 9th July, 1958, by which the allowances were discontinued, was ultra vires, illegal and inoperative. It was further prayed that the retrospective discontinuance of these allowances with effect from 1st July, 1952 was bad in any case. The petitioners, therefore, seek the quashing of this order and pray for a direction that the respondent State be ordered not to make recoveries in pursuance of the impugned order, and further that it should be ordered to make payment of the allowances in question to them and respondent No. 3 upto the 31st of March, 1958, being the date with effect from which, such allowances were abolished under sec. 3 of the Act of 1958. Finally, it is also prayed that a direction should be given to the State to deal with the case of the petitioners for compensation in lieu of the abolition of the allowances in accordance with the provisions of the last mentioned Act. This application has been opposed on behalf of the State and the principal contention raised in the written reply filed on behalf of it is that the Rules of 1944 of the former Tonk State were merely something in the nature of an executive order and could not have any force of law. Developing this contention, it is further submitted that these Rules were a sort of domestic instructions issued by the Ruler, who was the head of the family in respect of allowances to be paid to the members of his own family, and that these had not been issued by the Ruler acting as the sovereign of the State. It is also contended that these payments were ex-gratia and not as a matter of right and, therefore, the successor State of Rajasthan was not bound to recognise them, and it was perfectly within its rights in limiting them until the holder's life time. It was also contended that the Government of Rajasthan was justified in modifying these Rules by its order dated the 2nd of May, 1952 to which, reference has already been made above, and by which the continuance of these allowances was limited to the life time of the predecessor in interest of the present grantees. The main question which falls for determination in these circumstances is, whether the rules of 1944 constitute a law, or they were merely executive or administrative instructions issued by the ruler of the State of Tonk, as it then was? We have carefully examined these rules in order to be able to adjudge the nature thereof, but before we refer to their provisions we should like to mention at the very outset that these rules were enacted by His Highness the Nawab of Tonk who was the sovereign ruler in that State. The rules were also published in the State Gazette, extraordinary issue, dated the 25th May, 1944. These rules were published under the command of His Highness the Nawab by the Darbar Secretary Mirza Hamid Ali Khan, and it was ordered that they would come into force from the 1st of June, 1944. In the 'Preamble', it was stated that earlier, some Rules for the grant of the cash allowances and jagirs to members of the 'Khandan' had been issued in 1908, and that some alterations and amendments therein were called for to be made if they were to fulfil the object for which they were issued, and it was considered necessary that the members of the Ruler's Khandan; or family, should be maintained on well defined lines so that the 'Izzat' and prestige of the Ruling family be not adversely affected and so the new set of rules was being promulgated. By R.1, it was provided that the rules were intended to regulate the grant of cash allowances to all members of the ruling family, whether male or female, and that these rules will be known as "Khandan Rules." By clause(a) of rule 3 the expression "Khandan" was defined to mean the legitimate descendants of Nawab Amir-Ud-Daulah. The phrase "Members" and the 'Khandan' was defined under R. 3(6) as meaning the descendants of the ruler of the State, whether male or female, from the time of Nawab Amir-Ud-Daulah provided they were legitimate issues from a duly wedded wife, the marriage having been performed with the direction of the ruler in accordance with the Muslim Law. Cls. (d)&(e) of this rule, then define the expressions "Khandani Mankuha" and 'Digar Mankuha', with which, we are not concerned for the purposes of the present case. R. 4 is then important. It lays down that every member of the Khandan by reason of the fact that he (or she) is a descendant of the Nawab, shall be entitled to a cash allowance. It is further provided by this rule that this cash allowance could be converted by His Highness the Nawab into a jagir of equal value, but that was a matter which rested in the pleasure of His Highness and could not be claimed as a matter of right. There was a further proviso that this conversion will not be permissible in case of a woman, and that if any jagir happens to devolve on such a person by inheritance, it would be at once substituted by a cash allowance. Rule 5 lays down the obligations of a holder of a Khandan allowance. Rule 6 then provides that the Ruler will have the paramount power to withhold or withdraw at any time the allowance granted to a member of the Khandan where he may have rendered himself unfit to hold the same by reason of bad character, or if he is found guilty of an offence involving moral turpitude, or any other offence punishable with a sentence of five years or more. Rules 7 and 8 impose restrictions on the alienation of this allowance and provide that it could not be made the subject matter of a sale or a mortgage, and that any debt incurred by a holder on the security of such an allowance, after the issue of these rules, will be personal, and any out and out transfer of the same would be null and void. By Rule 9, it is laid down that a person who is in receipt of an allowance to an extent larger than he is entitled to, shall continue to receive the same during the life-time, unless the Ruler orders otherwise. Rule 10 provides that cash allowances shall not be granted in future except in conformity with these rules. By Rule 11, it is laid down that no allowance would be admissible to a son-in-law of a Ruler as such. Rule 12 provides that no adoption would be recognised for the purpose of these rules. By Rule 13, it is laid down that the State would not recognise the right of any illegitimate issue of any member of the Khandan to an) allowance from the State, so that any maintenance provided for such issue would be a private affair. Rule 14 is then important, and it provides that every cash allowance granted to a person on account of his being a descendant of a Ruler would lapse to the State on the death of the grantee, and that a regrant will be necessary in the case of his descendants to entitle them to a Khandan allowance, and that in such a case the Darbar would be free to reduce the quantum of the allowance in accordance with the rules, and such regrant would also be subject to the payment of a Nazrana. Rule 15, then lays down the quantum of the allowances permissible to various persons. Rule 16 prescribes that the allowances for the sons and daughters of the Ruler will be admissible after their attaining the age of fourteen years, unless their mother is dead or her allowance has been stopped. By Rule 17, it is provided that a cash allowance to a Begum, which under clause (c) of Rule 3 means a lawfully wedded wife of the Ruler, would enure for her life time only and would unconditionally lapse to the State on her death. Similarly, under R.18 it is provided that on an heir apparent ascending the 'Gaddi' the allowance sanctioned to him would lapse to the State, and that his issues would be entitled to separate allowances from the State under Rule 15. Rule 20 is the next important rule and it lays down how the allowance would be reduced from generation to generation until the descendant of the original grantee in the seventh generation will not be certified any cash allowance. By Rule 22, it is then provided that every allowance regranted to an heir will be treated as an allowance in the records of the State. By R. 25 it is provided that a wife's share in the cash allowance granted to a member of the Khandan would be one-tenth of the allowance granted 10 her husband, and it is further provided that if the wife pre deceases the husband this amount will not devolve on the heirs of the deceased but will lapse to the State. Rule 29 then lays down the mode of distribution of a Khandan allowance among the heirs of a deceased member of the Khandan. Now having regard to the ra:ure and contents of these rules, as summarised above, we have felt fully satisfied that they are not simply administrative or executive instructions issued by the Ruler, let alone that they are mere domestic arrangements ordered by him as head of the ruling family, for the proper maintenance of the members of his family. As we understand them in their full scope, meaning and effect, they constitute a law made by competent authority. So far as the subject matter of these rules goes, it may superficially appear to be a matter of domestic concern to the Ruler, but having regard to the feudal set up in which the rules came to be made the maintenance of the Ruler and his family was more of an obligation of the State than a matter of private concern of the Ruler in his domestic capacity. As already pointed out above, these rules were made by the Ruler of the State who let it not be forgotten, exercised full and absolute sovereignty in the internal administration of the territory constituting the State of Tonk. An analogous question arose before their Lordships of the Supreme Court in Madhaorao Phalke Vs. State of Madhya Bharat (1). In that case, the appellant who described himself as an Ekkan claimed that he and his ancestors had teen receiving a monthly payment of a certain sum of money from the State of Madhya Bharat which had been granted to the appellant's ancestors by the Ruler of Gwalior some two hundred years ago in lieu of their having rendered military service to that Ruler. This right to receive the amount in question had been recognised by the various Rulers of Gwalior by various orders and writings, amongst them were the Kalambandis of 1912 and 1935. In 1952, the Government of Madhya Bharat issued an executive order terminating this payment to the appellant, and the appellant filed a writ petition praying for an order that the respondents be restrained from giving effect to the said executive order. The principal question raised were two in number ; firstly, that the appellant's right to receive the amount in question had been statutorily recognised by the State of Gwalior and, therefore, it w?s not open to the respondent to extinguish that right merely by an executive order, and, secondly, it was contended that the right to receive the said payment was property to which the appellant had a fundamental right, and he could not be divested of it without payment of compensation. The case put forward by the respondent-State was that the Kalambandis on which the appellant relied did not constitute an existing law under Art. 375 of the Constitution and that payment made to the appellant and his ancestors was by way of emoluments for military service and did not constitute property. A Full Bench of the Madhya Bharat High Court, by a unanimous decision held that the Kalambandis, on which the petitioners 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. It was pointed out that in the State of Gwalior there was a law-making machinery, and that since the Kalambandis in question did not satisfy the requirements of the forms and solemnities specified in that behalf, they could not claim the status of a statute. This finding was over-ruled by their Lordships of the Supreme Court on appeal, as a result of two considerations, (1) that the Ruler of the Gwalior State was an absolute monarch having no constitutional limitations on his internal sovereignty, and, (2) having regard to the detailed provisions contained on the Kalambandis. As mentioned by their Lordships in their judgment, these Kalambandis though, they were stated to be issued for the purpose of arranging for the administration of the character of the department of the irregular unit of Silehdari, conferred hereditary rights ; provided for adoption ; arranged for the maintenance of widows out of funds specially set apart for that purpose ; made detailed provisions as to mutation of names after the death of a silledar; made provision for the offering of a substitute by a silledar on being old ; and prohibited a mortgage of the amount payable to a silledar for a debt of a banker; and provided for execution of a decree with reference to the amount payable in this behalf to a silledar subject to the limitations prescribed in that behalf, and so on and so forth. It was, therefore, held that these Kalambandis considered as a whole they could not be treated as administrative orders issued merely for the purpose of regulating the working of the administration of the department of irregular force. Their Lordships further went on to observe that having regard to the contents of the two orders and the character of the provisions mentioned in them it was difficult to distinguish them from statutes or laws; and in any event from a regulation having the fore of law. We think that the observations made by their Lordships with respect to the Kalambandis in the case referred to above, apply with full, if not greater force, to the kind of rules with which we are concerned, in this case. We have already surveyed briefly the provisions of these rules and pointed out their object and contents. Bearing in mind the test employed by the Supreme Court, we find it impossible to hold having regard to the purpose content and character of the Rules of 1944 that they arc merely executive or administrative instructions issued by the Ruler for the benefit of his family and the correct position clearly seems to us that they are indistinguishable from a statute, or as their Lordships were pleased to observe in the case cited above, from rules or regulations having the force of law. That being so, the next question that arises whether the respondent State was justified in making any interference with executive reference. Now before we give our answer to this question, we wish to point out that these rules, having the character and force of law, or being something in the nature of law, passed as they were, by the sovereign Ruler of the then State of Tonk continued in their full force, when that State was merged into the first United State of Rajasthan in the beginning of May, 1958. Reference may be made in this connection to the United State of Rajasthan Administration Ordinance (Ordinance I of 1948) by section 3 of which all laws, Ordinances, Acts, Rules, Regulations, and Notifications having the force of law in the said State were ordered to continue to remain in force until repealed or amended by the competent authority. The State of Tonk was thereafter merged in! the second United State of Rajasthan, which was formed in April, 1949. By S.3 of ordinance 1of 49, which was an identical provision to that to which we have made reference above of the laws in force in any covenanting State immediately before the commencement of this Ordinance continued to be in force until altered or repealed or amended by a competent Legislature or other competent authority. The position is, therefore, incon-troverting that the Rules of 1944 continued in their full vigour and force until the coming into force of the Constitution on the 26th January, 1950. Art. 373 of the Constitution is then attracted into operation. It provides for the continuance in force of such laws as were in existence at the date of the coming into force of the Constitution. Clause (1) of this Article clearly provides that notwithstanding the repeal by this Constitution of the enactments referred to in Art. 395, but, subject to the other provisions of the Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority. The expression "Law in force" under Explanation 1 of this Article, has been given an all embracing meaning so as to include a law passed by or made by a Legislature or other competent authority in the territory of India before the commencement of the Constitution and not previously repealed. As we have already pointed out above, His Highness the Nawab of Tonk being the supreme executive head of the State was also the supreme legislative authority for it and the Rules of 1944 having been passed by him in his sovereign capacity, and having thereafter been continued by the two respective Ordinances of 1948 and 1949, had full legislative force when the Constitution came into operation by virtue of the provisions contained in Art.372 of the Constitution. That being the correct position in law, the next question that falls for determination is whether such law or any orders issued there under could be interfered with by a mere executive order which the successor State might have thought fit in its wisdom to pass? The answer to this question can only be in an emphatic negative. In Madhaorao Phalke's case(1), to which we have already made reference above, Gajendragadkar J. observed as follows: - "It is not disputed that if the Kalambandis on which the appellant's right is based are rules or regulations having the force of law the impugned executive order issued by respondent would be invalid. The right guaranteed to the appellant by an existing law cannot be extinguished by the issue of an executive order. There is, therefore, no escape from the conclusion that the Rules of 1944 being a law, or a regulation in the nature of law, did continue to have full effect propria vigor and they could be superseded only by law and not by executive order. It must follow as a corollary that the executive orders passed by the respondent State in 1952, and then in 1958, were entirely incapable of extinguishing the rights which the petitioners or respondent no. 3 had acquired under these rules. We also wish at this place to take the opportunity of pointing out that these orders in so far as they were intended to have retrospective effect from 1952, were entirely indefensible, and must be quashed out of hand.
(3.) THE position at which we thus arrive is that the impugned orders are bad and cannot be sustained. We also think that the case of the petitioners has to be governed by the Act of 1958 which came into force on the 2rst July, 1958. THE definition of "cash jagir" given in sec. 2 of this Act is very comprehensive and seems to include the cash allowances of the type of which the persons aggrieved before us were in receipt. By sec. 3 of this Act it has been provided that notwithstanding anything to the contrary contained in any law, sanad, order, custom or usage in force in any part of the State, all payments of money on account of cash jagirs within the meaning of this Act shall be discontinued on and from the 1st day of April, 1958 and all such cash jagirs shall stand abolished as from that. It is clear that to the extent that such jagirs were abolished from the 1st day of April, 1958, the Act of 1958 was given a retrospective effect, but there can be no question that it was open to the legislature to do so. By sub-sec. (2) of this sec. 6 it has further been provided that notwithstanding such discontinuance and abolition the State Government shall make payments by way of compensation in accordance with the scale laid down in the Second Schedule, of the Act. THE Second Schedule lays down the scale of compensatory payment, and so far as it is relevant for our present purposes under clause (a) thereof which provides that "if such monthly rate does not exceed fifty rupees, the compensation payable would be for a period of fifteen years from the 1st day of April, 1958, at a monthly rate equal to the cash jagir received by the holder per month immediately before the last mentioned date. For the reasons mentioned above we allow this application, set aside the orders of the Government dated the 2nd of May, 1952 in so far as it relates to the present petitioners and respondent no. 3 and the further order dated the 9th of July, 1958, and hereby direct that the petitioners will be paid their allowances in accordance with the Rules of 1944 upto the 31st of March, 1958 and thereafter, they shall be dealt with in accordance with the provisions of the Act of 1958. The petitioners shall be entitled to one set of costs from the State.;