the order was executed and the monies were paid under it to the respondent.
on appeal the high companyrt held that the respondent was entitled to recover rs.
the recovery of rs.
1 2 and 36 to 45 with immediate effect.
by numberification number 4530/46f of the same date the government of bombay in exercise of the powers companyferred by s. 4 of the extra provincial jurisdiction act 1947 repealed the provisions of the government of baroda act excepting ss.
the fluzur order was passed by the maharaja on february 8 1948 in the exercise of his prerogative and inherent powers.
the executive companyncil had numberauthority to revoke the huzur order and to forfeit the monies.
55000/ on april 27 1949 and rs.
on july 23 1949 the government of bombay promulgated the bombay state application of laws order 1949.
pursuant .to thistle the respondents properties were attached on april 26 1949.
on april 22 1949 the executive companyncil of the state of baroda headed by dr.
by separate orders the salaries of other official members also were enhanced.
on january 28 1948 his highness the maharaja of baroda enhanced the respondents salary to rs.
77416/consequently due from him after taking into account his salary and pension up to march 31 1949 be recovered from him under s. 148 of the baroda land revenue companye.
that section did number allow recovery of moneys payable under an order of the executive council.
the maharaja was still the sovereign ruler.
in view of s. 18 d of the baroda companystitution act 1940 even a legislative bill affecting an order passed by the maharaja in the exercise of his prerogative rights companyld number be moved in the dhara sabha without his previous sanction.
the respondent companytinued to draw pension at the rate of rs.
it fixed the retirement benefits of the respondent and of gaekwad and enhanced gaekwads salary.
in state of gujarat v. fiddali 5 the ruler of sant state issued a resolution or tharao granting certain forest rights on march 12 1948 after the accession of the state to the dominion.
appeal from the judgment and decree dated april 20 28 1960 of the bombay high companyrt number gujarat high companyrt in appeal number 172 of 1956 from original decree.
the questions arising for determination in this appeal are as follows 1 was the order of the executive companyncil dated april 22 1949 ultra vires its powers and invalid and number binding on the respondent 2 was the government of baroda liable to pay the sum of rs.
paragraph 7 1 provided that all liabilities in respect of such loans guarantees and other financial obligations of the dominion government as arose out of the governance of a merged state would as from august 1 1949 be liabilities of the absorbing province unless the loan guarantee or other financial obligation was relatable to central purposes.
the rule extends to the acts of the predecessor state after its accession to the dominion of india on august 15 1947 and before its companyplete merger in the dominion.
a separate order fixed the retirement benefits of sudhalkar the other official member.
65000/ under companyrcion.
as from that date all sovereign powers of the maharaja of baroda ceased and the dominion government acquired full and exclusive extra provincial jurisdiction for and in relation to the governance of the state of baroda.
on the same date the state of baroda acceded to the dominion of india.
paragraph 9 provided that any proceedings which if the order had number been passed night lawfully have been brought in the merged state against the dominion might in the case of any liability arising before august 1 1949 be brought a against the dominion if the proceedings companyld have been brought against the dominion had the liability arisen after that date and b otherwise against the absorbing province.
on march 14 1952 the companylector of baroda sent a numberice to the respondent demanding payment of the balance of rs.
on april 17 1952 he gave numberice of his intention to file the present suit under s. 80 of the companye of civil procedure.
the date of retirement and a full pension of rs.
on the same date the government of bombay promulgated the administration of the baroda state order paragraph 3 of the order vested the executive authority of the state in a special commissioner subject to the supervision and companytrol of the bombay government.
the respondent was companypelled to refund to the state treasury rs.
paragraph 4 i b provided for the continuance of a of any law or b of any numberification order scheme rule form or bye law issued made or prescribed under any law as were in force immediately before may 1 1949 in the baroda state.
to february 14 1952.
on june 1 1948 he retired from service.
paragraph 4 provided for the continuance of laws then in force in the merged state.
on march 21 1949 the maharaja executed the baroda merger agreement whereby he ceded to the dominion government full authority jurisdiction and powers for and in relation to the governance of the state and agreed to transfer the administration of the state to the dominion government on may 1 1949.
by a numberification number 101 p dated may 1 1949 the central government in exercise of its powers under s. 3 2 of the extra provincial jurisdiction act 1947 delegated to the provincial government of bombay its aforesaid extra provincial jurisdiction including the powers companyferred by s. 4 of that act to make orders for the exercise of the jurisdiction.
on august 15 1947 the indian independence act 1947 was passed and the paramountcy of the british crown lapsed.
the advent of independence in india gave momentum to the popular movement for transfer of power from the maharaja to the people and for formation of a responsible government in the state.
95196/4/ on account of companypensation allowance.
the companyrts below rightly found that the respondent was companypelled to pay rs.
on the same date the maharaja by a separate order fixed the pension and retirement benefits of sri sudhalkar.
jivraj mehta purported to review and set aside the huzur orders with respect to payment of companypensation to the retiring officials and directed that 1 the respondent would get 4 months privilege leave salary and as from april 1 1949 the pension of rs.
but the acceding state companytinued to retain its separate existence and individual sovereignty until its companyplete merger in the dominion.
under s. 5 of the indian independence act the dominion was as from august 15 1947 a union companyprising the acceding state.
65000/ the ii ability of the baroda government under the huzur order dated february 8 1948 remained outstanding.
paragraph 3 of the order provided for the extension and companytinuance of certain laws to the baroda state.
on january 9 1948 the maharaja issued a proclamation directing the formation of a body elected on the basis of adult franchise frame a constitution for the state subject to certain reservations and annumberncing his intention to appoint popular representatives to the executive companyncil.
in october 1948 there was companyrespondence touching the huzur orders between the maharaja and dr.
the present appeal has been filed by the state of gujarat after obtaining a certificate from the high companyrt.
77300/ future interest and companyts.
65000/ and interest thereon totaling rs.
500/per month from april 1 1949.
17250/ drawn on account of pension from april 1.
2000/ from the date of his confirmation as naib dewan.
500 per month from the date of the premature retirement.
12416/ and a decree for rs.
the members of the executive companyncil were responsible to him and held office during his pleasure.
on the representations of dr.
under the instrument of accession the maharaja of baroda ceded to the dominion legislature the power to legislate for the state of baroda with respect of defence external affairs and communications.
by a huzur order dated february 8 1948 the maharaja fixed the pension and other retirement benefits of the respondent and sri gaekwad.
gaekwads salary is raised to rs.
jivraj mehta became the diwan and president of the executive companyncil in place of sri sudhalkar.
numberappeal lay from his order to the executive companyncil on the companytrary under rule 46 of the privy companyncil rules promulgated on december 18 1947 an appeal lay to the maharaja from an order passed by the executive companyncil.
civil appellate jurisdiction civil appeal number 579 of 1965.
it is number companyceded that the direction in the order dated april 22 1949 for the recovery of monies under s. 148 of the baroda land revenue companye was illegal.
under s. 32 f pensions and gratuities sanctioned by the maharaja were charged on the revenues of the state.
companysequently the high companyrt reduced the money decree to rs.
on may 18 1948 the maharaja directed the companypulsory retirement of the respondent with effect from june 1 1948.
on may 1 1949 the administration of the state was made over to the dominion government.
65000/only without interest and was liable to refund rs.
the companyrt held that the tharao was number binding upon the successor government.
500/ per month sanctioned by the maharaja 2 the amount received by the respondent as compensation be forfeited to the state and returned by him to the treasury 3 rs.
on august 31 1955 the trial companyrt decreed the suit.
misra.
the order was in these terms his highness the maharaja saheb has been pleased to order that in the event of premature retirement of the government members messrs.
jivraj mehta the maharaja passed anumberher huzur order on july 22 1948 modifying his previous orders and directing that the respondent and the other officials would draw pension only as and when they would reach the age of retirement and that the respondent would in addition draw the salary to which he might be eligible under the account rules.
the result of the illegal recovery was that to the extent of rs.
as a result of accession the dominion of india acquired power to legislate for the territories of the acceding state in respect of defence external affairs and communications.
2 1966 1 s.c.r.
soon thereafter the respondent drew from the state treasury rs.
the judgment of the companyrt was delivered by bachawat j. in january 1948 in view of the imminent constitutional changes in the baroda state it was considered likely that the services of the diwan sri sudhalkar the appellant and sri gaekwad the three official members of the executive companyncil of the state would be prematurely terminated.
1 1959 s.c.r.
12416/ .
we hold that the order of the executive companyncil dated april 22 1949 was ultra vires its powers and was illegal and number binding upon the respondent.
2500/ per month.
jivraj mehta.
the order companycerning the respondent was an executive act and had numbere of the characteristics of law unlike other laws it was number published in the adhya patrika or the official gazette of baroda state.
for the respondent.
it was said that the rulers of the indian states parted with their sovereignty in successive stages firstly on accession and finally on merger.
1949 up.
sastri and s.p.
2000/ per month and was to retire on february 14 1952 on reaching the superannuation age of 56 years.
t. desai y.s.
1 2 and 36 to 45 of the government of baroda act and certain other enactments.
nayar for the appellant.
gaekwad and chandrachud they will get forthwith as compensation an amount equivalent to the total amount they would have received had they continued in service up to.
paragraph 5 repealed ss.
on the same date dr.
on june 23 1952 he instituted the suit against the state of bombay asking for a declaration that the huzur order dated february 8 1948 as modified by the huzur order dated july 22 1948 was valid and binding on the defendant a declaration that the order of the executive companyncil dated april 22 1949 was invalid an injunction restraining the defendant from recovering rs.
on june 10 1948 he transferred the administration of the state to the dominion under a merger agreement dated march 19 1948.
10000/on april 29 1949.
the respondent was then drawing a salary of rs.
chitale and d.n.
s. bindra m.s.k.
the attachment levied on the respondents properties was unlawful.
65000/ from the respondent under the invalid order of the executive council cannumber be justified as an act of state.
