1. To understand the unique facts and circumstances involved in this case, it is imperative to have a glance at the events which led to the formation of our noble State. Needless to say that the events are rooted to the enthralling and inspiring freedom struggle, which ended British paramountcy and gave birth to this great nation and presented us with the most valuable document, the Constitution of India.
2. In the early 18th century, a major part of Kerala, as we see it today, was under the rule of Venad, Kolathunadu, Cochin and Calicut Kingdoms and numerous other small principalities ruled by Nair and Namboodiri Chieftains, who were constantly at loggerheads with each other. With the advent of Marthanda Varma (1728-1758), Travancore emerged as a super power and many of the smaller principalities were forced to accept its suzerainty. The reign of Marthanda Varma was followed by that of Rama Varma Dharmaraja (1758-1798), who followed the footsteps of his illustrious predecessor and further expanded the reach of the Travancore Kingdom. Parur, also known as Pindinivattath Swaroopam, was ruled by a Namboothiri family by name Vadakkeppattil Madhom, of which the petitioner is presently the eldest member.
3. In 1764, the then ruler of Parur surrendered the sovereign rights of his family to Travancore for an annuity, payable in money and paddy. The payment of annuity was later converted to money entirely. The document of cession, available in the archives and extracted at page 169 of Appendix II to Volume II of the Travancore State Manual by Sri. T.K.Velu Pillai, reads as under;
“In this year, 939 M.E (1764 A.D) , this able Dalawah persuaded the Rajah of Paravoor to formally resign his sovereign rights in the Paravoor State in favour of Travancore and retire on a pension. Accordingly the Rajah signed an agreement, by which he gave entirely his sovereign rights to Travancore and accepted a family pension.”
The renowned chronicler of Kerala History, Sri. A.Sreedhara Menon has made the following note at page 167 of his book “A Survey of Kerala History”.
Parur was a small principality ruled over by a Namboothiri Chief. It was also known as Pindinivattathu Swarupam. It included within itself the territories comprised in the present Parur taluk in the Ernakulam district lying on the northern side of the Periyar river. The Raja owed allegiance to the Cochin ruler and enjoyed certain special privileges. In 1764 he surrendered himself to Travancore and the State was annexed, by the Dharma Raja.”
Thereafter, the relentless freedom struggle, which had gained momentum and support across the country, compelled the British Government to bring out the Government of India Act, 1935 followed by the Indian Independence Act, 1947, marking the end of British paramountcy over India and dividing the country into two dominions, India and Pakistan with effect from 15th August 1947.
4. With the introduction of the Indian Independence Act, 1947, the Indian princely States became independent, with the option of ceding to either one of the dominions or remaining independent. The State of Cochin, and later the State of Travancore, acceded to the Indian Union and were merged on 1st July, 1949 to form the United State of Travancore and Cochin under a covenant executed by the rulers of both States. The State was later renamed the State of Travancore-Cochin. The contextually relevant clauses of the covenant of merger are extracted below:
“WE, the Rulers of Travancore and Cochin, do hereby, with the concurrence and guarantee of the Government of India, enter into the following Covenant:
As from the first day of July, 1949, the States of Travancore and Cochin shall be united in, and shall form, one State, with a common executive, legislature and judiciary, by the name of the United State of Travancore and Cochin.
As from the appointed day,—
(a) all rights, authority and jurisdiction belonging to the Ruler of either of the Covenanting States which appertain or are incidental to the Government of that State, shall vest in the United State;
(b) all duties and obligations of the Ruler of either of the Covenanting States pertaining or incidental to the Government of that State shall devolve on the United State, and shall be discharged by it; and
(c) all the assets and liabilities of either Covenanting State shall be the assets and liabilities of the United State.
(1) There shall be a Raj Pramukh for the United State.
(2) The present Ruler of Travancore shall be the first Raj Pramukh and shall be entitled to hold office during his life-time.
(1) There shall be a Council of Minister to aid and advise the Raj Pramukh in the exercise of his functions, save as provided in Articles XII and XIII.
(2) The Ministers shall be chosen by, and shall hold office during the pleasure of, the Raj Pramukh.
(1) The Ruler of each Covenanting State shall be entitled to receive annually from the revenue of the United State for his privy purse the amounts specified against that Covenanting State in the Schedule:
Provided that the sums specified in the Schedule in respect of the Ruler of Travancore shall be payable only to the present Ruler and not to his successors for whom provisions will be made subsequently by the Government of India.
(2) The said amount is intended to cover all the expenses of the Ruler including expenses on residences and ceremonies and shall neither be increased nor reduced for any reason whatsoever.
(3) The United State shall pay the said amount to the Ruler in four equal instalments at the beginning of each quarter in advance.
(4) The said amount shall be free of all taxes whether imposed by the Government of the United State or by the Government of India.
The Ruler of each Covenanting State, as also the members of his family shall be entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before the 15th day of August, 1947.
Covenanting States and Privy Purse Amounts
Travancore………..Rs 18 Lakhs
5. On 24th November 24, 1949, the Rajapramukh of the United State of Travancore and Cochin made a proclamation, declaring “that the Constitution of India shortly to be adopted by the Constituent Assembly of India, shall be the Constitution for the United State of Travancore and Cochin as for the other parts of India and shall be enforced as such in accordance with the tenor of its provisions”. After the introduction of the States Reorganisation Act, 1956, which was enacted with the objective of formation of states on linguistic basis, the State of Travancore-Cochin was joined with the Malabar District of Madras State to form the new state of Kerala with effect from the 1st November 1956.
6. In spite of the prodigious political changes in the country, annuity was continued to be paid to the petitioner's family till September, 1956, viz; just prior to the formation of the state of Kerala a month thereafter. Meanwhile, the Government of the State of Travancore-Cochin had passed an order in March, 1955 bringing about a pro rata reduction in the amount of annuity paid to the members of erstwhile ruling families in accordance with the decrease in their number.
7. Aggrieved by the pro rata reduction of annuity, followed by the stoppage of the payment itself, the petitioner’s father, who was then the senior most member of the family filed a suit (O.S.No. 11 of 1958) before the Sub Judge's Court, Parur for a declaration that the liability of the State of Travancore-Cochin to pay annuity to the petitioner's family had devolved on the State of Kerala. The Subordinate Judge’s Court decreed the suit with costs. Aggrieved, the State of Kerala challenged the judgment and decree by preferring an appeal to the District Court, but without success and thereupon filed a second appeal to this court.
8. The first question mooted in the second appeal was regarding the sufficiency of evidence to establish grant of annuity to the petitioner’s family by the Ruler of Travancore. Based on available evidence and archival records, as also the admission in the written statement, the learned Single Judge affirmed the finding of the trial court that there was proof regarding grant of annuity to the petitioner’s family. The next question was whether the municipal courts had jurisdiction to adjudicate the issue in view of the bar contained in Article 363 of the Constitution of India and if so, whether the State of Kerala is liable to make the payment. The learned Single Judge found the municipal courts to be having jurisdiction and consequently, the suit to be maintainable. In order to answer the question regarding the liability of the State of Kerala to continue payment of annuity, the constitutional evolution till formation of the State was traced and it was held that there was recognition of annuity by the successive Governments and that upon the Constitution of India coming into force the right to annuity became a right to property entitled for protection under Article 31(1). The relevant portion of the judgment in State of Kerala v. Ravi Sarma Raja [1960 KHC 518] is extracted below:
“4. The next stage in the constitutional evolution was reached when on November 24, 1949, the Rajapramukh of the United States of Travancore & Cochin made a proclamation, declaring “that the Constitution of India shortly to be adopted by the Constituent Assembly of India shall be the Constitution for the United States of Travancore & Cochin as for the other parts of India and shall be enforced as such in accordance with the tenor of its provisions”. With the Constitution of India, came into existence the new State of Travancore-Cochin as a Part B State. As observed, the United States of Travancore and Cochin continued to make payment till the date of the Constitution. As held by the Supreme Court, Article III of the Covenant may be referred to, at least as explaining the payment, the right to which, having been recognised, may be treated as its liability. Under Article 295(2) of the Constitution, all liabilities and obligations of the Government of the United States of Travancore and Cochin became those of the Government of the State of Travancore-Cochin. The Government of the State of Travancore-Cochin in turn continued to make payment till September, 1956. Whether the Covenant and the Proclamation are to be regarded as acts of State or not, there has been recognition by the successive Governments of the right to the annuity. Upon the Constitution of India coming into force, this right became a right to property, and entitled to protection under Article 31(1) of the Constitution......”
9. Being aggrieved, the Government preferred a further appeal, confining its challenge to the question of maintainability, contending that the formation of the United State of Travancore and Cochin – later termed the State of Travancore-Cochin – on 1.7.1949 and the formation of the State of Kerala by the States Reorganisation Act, 1956, on 1.11.1956 being acts of State, no municipal forum has the right to entertain the suit and investigate the controversy. The Division Bench, which considered the appeal, accepted the contention that the formation of the United State of Travancore and Cochin, based on a covenant entered into between the Rulers of Travancore and Cochin, was an Act of State. Reference was made to Clause 7 of Ordinance No.1 of 1124 by the Raj Pramukh of the United States of Travancore and Cochin, later replaced by Act No. 6 of 1125, specifying that the formation of the United State shall not “affect any right, privilege, obligation or liability acquired, accrued or incurred prior to the appointed day", to hold that the right of annuity had been recognised by the United state of Travancore and Cochin. The States Reorganisation Act, 1956 was held to be a piece of legislation enacted in exercise of the powers conferred on the Parliament by Articles 3 and 4 of the Constitution and hence the bar under Article 363 of the Constitution was found inapplicable. Based on the findings, the appeal was dismissed and thus, the liability of the State of Kerala to pay annuity to the petitioner’s family attained finality. On the strength of the decree in O.S.No.11 of 1958, as affirmed in the apeals, payment of annuity to the petitioner’s family was continued by the Government of Kerala. As discernible from Ext.P1, payment was made in the name of Ravi Sharma Raja Krishna Raja, the then eldest member of the family.
10. Ravi Sharma Raja Krishna Raja died on 19th November 2011 and the petitioner became the eldest member of the family. The petitioner submitted an application for change of name in the pension payment order for enabling him to accept the annuity payment on behalf of his family. After being redirected from the Sub-Treasury to the Office of the Accountant General and from there to the Government and after causing a legal notice to be sent, the Government issued Ext.P7 communication on 22nd July 2013, adopting a stand that, there being no right of succession with respect to political pensions, the request to authorise the petitioner to draw the pension granted to Ravi Sharma Raja cannot be acceded to. Aggrieved by the cryptic rejection of the request, the writ petition is filed seeking the following reliefs:
“a) call for the records leading up to Exhibit P7 and to quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction.
b) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to issue Pension Payment Order in the name of the petitioner authorizing him to receive the annuity payable by the State to the family of the petitioner in consideration of the relinquishment of the sovereign rights over the territory of Parur in favour of Travancore State.
c) issue a writ of mandamus or any other appropriate writ or direction commanding respondents 1 and 2 to fix the quantum of annuity in accordance with prevailing commutation rates of paddy for the years 2008-2009, 2009-2010, 2010-2011, 2011- 2012 and 2012-2013 and also further commanding respondents 1 and 2 to fix the quantum of annuity in every year before the 30th June in accordance with the prevailing commutation rates of paddy for that year.”
11. Heard, Sri.T.Krishnanunni, learned Senior Counsel appearing for the petitioner and Sri. Mathew George Vadakkel, the learned Senior Government Pleader.
12. The learned Senior Counsel put forward a singular yet forceful contention that, annuity granted to the petitioner’s family in the year 1746 and continued unabated till the death of petitioner’s predecessor cannot be stopped in the light of the inter parties judgment in O.S. No. 11 of 1958. Refering to Article 295(2) of the Constitution it was argued that the rights, as well as liabilities, of erstwhile Indian States, have devolved upon the Government of India and consequently on the State of Kerala and being a constitutional guarantee, the liability cannot be wished away.
13. The learned Government Pleader attempted to sustain the Government's stand by relying on Exhibit R1(a) the Constitution 26th Amendment Act, 1971. reference was made to the decision of the Honourable Supreme Court in Raghunathrao Ganpathrao and others v Union of India (AIR 1993 SC 1267).
14. The binding nature of the declaration in O.S.No. 11 of 1958 not being in dispute, the question to be considered is the impact, if any, of the Constitution Twenty Sixth Amendment. To answer this question it is necessary to briefly narrate the circumstances under which the amendment was effected. When India attained independence, the Dominion of India consisted of more than 500 princely states which covered 48 percent of the geographical area of British India and 28 percent of its population. These princely states, though subordinate to the British Crown, were officially not part of British India. On attainment of Independence, the challenging task of integrating these princely states to the Indian Union fell on Sardar Vllabhai Patel the Home Minister, ably assisted by Sri.V.P.Menon, the Secretary, Ministry of States. Since some of the states were adamant in maintaining their newfound freedom and sovereignty and some were bent upon acceding to the dominion of Pakistan, those States had to be coaxed, cajoled and in some cases vexed into joining the Indian Union. Hence the concept of ‘privy purse’ was mooted, by which a handsome amount was offered to the ruling families of the princely states, along with the guarantee of maintaining their royal status and priveleges. It was also decided that the Constitution of India as framed by the Constituent Assembly of India would contain all the necessary provisions governing the constitutional structure of the United States as well as the the guarantee contained in the covenants and merger agreements executed by the Rulers of princely States. Accordingly, on 13th October, 1949 the Constituent Assembly of India adopted, inter alia, two articles — namely, Article 291 relating to payment of privy purse and Article 362 relating to personal rights and privileges of the Rulers. Amendments relating to the United States and the other States which had not merged, were also adopted and these States were called “Part ‘B’ States”. The Rulers and Rajpramukhs of the States agreed to adopt the Constitution as drafted by the Constituent Assembly of India and issued proclamations declaring that the Constitution to be adopted by the Constituent Assembly of India shall be the Constitution for the United States. Supplementary covenants were also executed by the covenanting States, which covenants were concurred to and guaranteed by the Government of India. Thereafter, the Constituent Assembly passed and adopted the Constitution.
15. Under the terms of the agreements and the covenants entered into by the Rulers, privy purse was to be paid out of the revenue of the States concerned. The States demanded that the liability for paying privy purse should be taken over by the Centre and therefore, under the Constitution, the obligation to pay the privy purse rested upon the Union of India in accordance with Article 291, while Article 362 guaranteed certain rights and privileges to the erstwhile Rulers. Over a period of time, the payment of privy purse became a huge financial liability on the Centre and continuance of the privileges was felt to be unsuitable for a democratic country like India. These factors prompted the introduction of the Constitution 26th Amendment in 1971, completely omitting Articles 291 and 362, inserting Article 363A and substituting a new Clause (22) in place of the original Clause in Article 366.
16. Piqued by the Amendment, the erstwhile Rulers approached the Supreme Court and the issue was decided by a Constitution Bench in Raghunathrao Ganpatrao v. Union of India, ((1994) Supp (1) SCC 191). The contention urged by the eminent lawyers appearing for the petitioners was that, Articles 291, 362 and 366(22) were integral parts of the constitutional scheme and formed the important basic structure, since the underlying purpose of these Articles was to facilitate stabilization of the new order and to ensure organic unity of India. It was contended that, only if the Articles are retained, the Unity of India could be achieved by getting all the Rulers within the fold of the Constitution, lest it would demolish the very basic structure of the Constitution. The Apex Court, after elaborate discussion, held that the 26th Amendment aims at establishing an egalitarian society, which is in consonance with the glorious preamble and that repeal of the Articles, might, at best, result in the nullification of a just quid pro quo. The Bench found that the will of the people to establish an egalitarian society in harmony with the changing tunes of time cannot be denied and that law cannot remain static for all times to come.
17. It is hence clear that, annuity granted to the petitioner’s family on the basis of a grant by the Ruler of Travancore and later acknowledged by the State of Travancore-Cochin, cannot be equated with privy purse, which was in the nature of a pension granted to the Rulers of the States for agreeing to cede to the Indian Union. As rightly contended by the Senior Counsel, deletion of Articles 291, 362 and 366 cannot impact th
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e vested right of the petitioner’s family since, under Article 295(1)(b), all rights, liabilities and obligations of the Government of any Indian State corresponding to a State specified in Part B of Schedule I, whether arising out of any contract or otherwise, became the rights, liabilities and obligations of the Government of India. As per Article 295(2), the Government of each State specified in Part B of Schedule I shall, as from the commencement of this Constitution, be the successor of the Government of the corresponding Indian States as regards all property and assets and all rights, liabilities and obligations, whether arising out of any contract or otherwise, other than those referred to in Clause (1). Thus, the liability to pay annuity devolved on the Government of Kerala, being the successor of the State of Travancore Cochin, the corresponding Indian State. 18. Apart from the above, the issue was elaborately considered and decided in O.S.No.11 of 1958 of the Sub Judge’s Court, Parur and affirmed by the judgments of this Court at Exhibits P2 and P3. By the decree, the right of the petitioner’s family, to an annuity payable by the State of Kerala, was declared. In such circumstances, the death of the senior most male member, who was receiving the annuity on behalf of the family, will not adversely affect the rights of the surviving members. The petitioner being the senior most male member of the family is entitled to receive the annuity amount for and on behalf of the other family members. The contention of the Government based on Exhibit R1(a) is also liable to be rejected for the reason that the annuity payment to the petitioner’s family cannot be equated with privy purse and malikhana, which, no doubt, are political pension. In the result, the writ petition is allowed, Exhibit P7 is quashed and respondents 1 and 2 directed to issue pension payment order, authorising the petitioner to receive the annuity for and on behalf of other eligible family members. Necessary action in this regard shall be taken within a period of two months from the date of receipt of a copy of this judgment. The annuity amount payable, along with accrued arrears, shall be paid to the petitioner under due acknowledgment, within an outer limit of one month thereafter. The parties shall suffer their respective costs.