Lalit Shastri

Supreme Court of India has passed a landmark judgement turning down a decree of the Madhya Pradesh High Court that had earlier set aside the order of the Trial court in favour of Madhya Pradesh Government in a dispute arising out of a 1948 Covenant between the erstwhile Maharaja Holkar of Indore and the State Government over the ownership right on certain pieces of land by the reason of Article 363 of the Constitution of India.

The apex court order comes in response to Civil appeal (NOS. 557-558 OF 2012) by State of Madhya Pradesh against Maharani Ushadevi regarding the judgement and decree of judgment and decree of 13 August 2010 and 11 February 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 State, decreed the Suit for declaration of title in favour of Maharani Ushadevi and also dismissed the review petition preferred by the State.

Dealing with the applicability of Section 158(2) of the Madhya Pradesh Land Revenue Code, 1959 that came into force with retrospective effect from 2 October 1959 and reads as follows:

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.

A two judge bench of the apex court, comprising Justice Ranjan Gogoi and Justice N.V. Ramana has categorically observed that the respondent 9Ushadevi) 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 claimed by way of Covenant is disputed, the relief of settling these disputes is barred under Article 363 of the Constitution. Hence, the court has said in its order: “one cannot claim to be “Bhumiswami” under Section 158(2) of the Madhya Pradesh Land Revenue Code, independent of the Covenant. On this basis the Court has settled the issue in favour of the appelant, that is the State of madhya Pradesh and against Ushadevi, the respondent. The Supreme court has set aside the judgments of the High Court in this case and ordered that the Suit filed by the Ushadevi 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.

Supreme Court has made it clear in its order that “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.” It has been pointed out by the Supreme Court in its order that the plaintiff/respondent 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 case.

The Supreme Cour has also remarked that the Court (High Court) “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 the Court was 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 State (Madhya Pradesh) and against the respondent/plaintiff (Ushadevi).

In the Karan Singh (Dr.) vs. State of J&K, (2004) SCC 698, while examining the applicability of Article 363 of the Constitution to the disputes arising out of a treaty, Covenant etc., the Supreme Court had 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.

Aslo in Madhav Rao Jivaji Rao Scindia (supra), the apex 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 Supreme court has explained in its present order that 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 adding that it had held that Article 363 has two parts. The first part relates to disputes arising out of Agreements and Covenants. The jurisdiction of the Supreme Court and 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 and Covenant and it was specifically mentioned that right as mentioned in Article 363 signifies property.

The Supreme Court order in the present case places on record 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. On the issue of transfer of land to Forest Department, apex court brings on record that 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”, the apex court has said.

The Counsel for the State contended that the first and foremost question that arises is whether the High Court had jurisdiction in a dispute arising out of the Covenant 16 June 1948 between the erstwhile Maharaja Holkar and the Government by the reason of Article 363 of the Constitution of India. The counsel stated that the instant Suit fell within the two limbs of the Article 363 as the present dispute clearly arose out of the terms of the Covenant. The Supreme Court has said in its order that 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.

The facts leading to these appeals, in brief, are that Maharani Ushadevi who was the daughter and reportedly sole heir of Maharaja Yashwanth Rao Holkar, the erstwhile Ruler of Holkar State filed the Suit in question on 7 September 1964 seeking the relief of declaration of title and permanent injunction in respect of certain properties (Beeds 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.

Her case was 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 beeds 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.During the lifetime of Maharaja Yashwant 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 January 1951, these beeds were transferred to the Maharaja and from that date, these beeds were 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 of 16 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 Yashwant Rao Holkar and Government of India, Ministry of States, by communication dated 7 May 1949, the land in question that was being managed by the Household Department of teh Holkar State became the exclusive and individual property of the father of Maharani Ushadeve. As the property belonged to the Maharaja, even the Government demanded revenue for the said land which was duly deposited by the plaintiff’s father as well as the plaintiff. It is further case of the plaintiff that the State Government appeared to have passed some orders on 2 May 1964, basing on which, the Collector, Indore had issued a notice on 16 May 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 held these lands either as an owner or as a Government lessee, and Government had 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 Suit seeking the relief of declaration and injunction.

The appellant – State – contested the Suit by filing written statement disputing the ownership of plaintiff over the Suit land. According to the defendant (State), Maharaja Yashwant Rao Holkar was never the owner of the Suit scheduled property. Hence, the question of plaintiff succeeding to the property did not arise. The beeds were the property of the Forest Department of the Holkar State. On 21 August 1926, the Cabinet of Holkar State transferred Bijasan Beed to the Household Department, and later the remaining beeds were also transferred on settlement of assessment. Later these beeds were transferred to the Forest Department in 1930. Again in 1943, they were re-transferred to the Household Department. It is the case of the defendant that in 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 Beeds were with the Army Department and hence could not 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 by the State that the Suit was 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.

The Supreme Court order says: “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.”