THE STATE OF SAURASHTRA versus MEMON HAJI ISMAIL HAJL

Citation: [1960] 1 S.C.R. 537 · Decided: 04-08-1959 · Supreme Court of India · Bench: SUDHI RANJAN DAS, NATWARLAL HARILAL BHAGWATI, M. HIDAYATULLAH · Disposal: Appeal(s) allowed
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Judgment (excerpt)

S.C.R. 
SUPREME COURT REPORTS 
537 
within the decisions of this Court in the earlier cases 
referred to above. 
In the light of the above discussion it follows, there-
fore, that the answer to the referred question should 
by in the negative. The result, therefore, is that this 
appeal is allowed, the answer given by the High Court 
to the question is set asicfo aDd the question is answer-
ed in the negative. The appelli1nt must get the costs 
of the reference in the High Court and in this Court. 
A ppe,al allowed. 
THE STATE O:F SAURASHTRA 
v. 
MEMON HAJI ISMAIL HAJl 
(S. R. DAs, C.J., N. H. BHAGWATI and 
M. HIDAYATULLAH, JJ.) 
Act of State-Taking over of administration of Junagadh Staie 
by Domi;, o"on of India-Resumption of property by Administi;ator 
before completion of such act-If an act of State not justiciable in 
municipal Co14Tts. 
The suit, out of which the present appeal arose, was one 
originally brought by the respondent against the State of 
Junagadh, later on substituted by the State of Saurathtra, for a 
declaration that the Administrator's order dated October r, 1948, 
resuming the immQveable property in suit was illegal, unjust and 
against all canons of natural justice. The.suit was decreed by 
the Civil Judge and the decree was affirmed by the High Court 
in appeal. The only point for determination in this appeal was 
whether the act of resumption by the Administrator was an act 
of State performed on behalf of the Government of India and 
involved an alien outside the State and was not, therefore, 
justiciable in the municipal Courts. With the passing of the 
Indian Independence Act 1947, and lapse of paramountcy by 
reason of s. 7 thereof, the Nawab of Junagadh became sovereign, 
but instead of acceding to the new Dominion he left for Pakistan. 
It appeared from the White Paper on Indian States that the 
Government of India took over the administration of the State 
on November 9, 1947• at the request of the Nawab's Council, but 
did not formally annex it till January 20, 1949• and during that 
period the Administrator maintained law and order and carried 
on the administration. 
Held, that there could be no doubt thaf the act of the 
Dominion of India in assuming the administration of Junagadh 
State was an act of State pure and simple and the resumption in 
I959 
Godrej &Co 
v. 
Commissioner of 
I n&ome-tax 
Das C.J. 
I959 
August 4. 
z959 
TheStato of 
Saurashlra 
v. 
Menum Haji 
Ismail Haji 
Hidayalullo J. 
538 
SUPREME COURT REPORTS [1960(1}] 
question having been made by the Administrator before that act 
was completed and at a time when the people of Junagadh, 
including the respondent, were aliens outside the State, the act 
of resumption, however arbitrary, was an act of State on behalf 
of the Government of India and was not, therefore, justiciable in 
the municipal Courts. 
The test in such cases must be whether the State or its 
agents purported to act "catastrophically " or subject to the 
ordinary course of law. 
Salaman v. Secretary of State for India, (1906) l K.B. 613, 
Johnstone v. Pedlar, (1921) 2 A.C. 262, Secretary of State in Council 
for India v. Kamachec Boye Sahaba, (1859) 13 Moore P.C. 22, Vaje 
Singh Ji Joravar Singh 0- Ors. v. Secretary of State for India, 
(1924) L.R. 51 I.A. 357, Dalmia Dadri Cement Co. v. Commissioner 
of Income-tax, [1959] S.C.R. 729, relied on. 
Forester and Others v. Secretary of State for India, 18 W.R. 
349 P.C., considered. 
The essence of an act of State was the arbitrary exercise of 
sovereign power, on principles other than or paramount to the 
municipal law. Although the sovereign might allow the inhabit-
ants to retain their old laws and customs, it could not itself be 
bound by them until it purported to act within them, thus 
bringing to an end the act of State. 
Campbell v. Hall, l Comp. 204; 98 E.R. 1045, Ruding v. 
Smith, 2 Hag. Con. 384; 161 E.R. 774 and E.I. Co. v. Syed Ali, 
7 M.I.A. 555, referred to. 
CIVIL• APPELLATE 
JURISDICTION: Civil Appeal 
No. 185 of 1955. 
Appeal from the judgment and decree dated the 
February 19, 1953, of the former Saurashtra High 
Court in Civil First Appeal No. 16 of 1952, arising out 
of the judgment and decree dated December 15, 1951, 
of the Civil Judge, Senior Division, Junagadh in Civil 
Suit No. 470 of 1950. 
G. !(. Daphtary, Solicitor-General of India, R. Gana-
pathy Iyer and D. Gupta for the appellant. 
I. N. Shroff, for the respondent. 
H.J. Umrigar and K. L._ Hathi, for the lnterveners.
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