Report No. 185

Section 113

This section deals with 'Proof of cession of territory'. It reads as follows:

"113. A notification in the (Official Gazette) that any portion of British territory has before the commencement of Part III of the Government of India Act, 1935 ( 26. Geo 5 Ch.2) has been ceded to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification.'

Section 113 is intended to preclude a judicial inquiry by courts into the validity of the acts of the Government but the Privy Council in Damodar v. Deoram (1875)3 I.A. 102 = ILR 1 Bom 367 (PC) has held that the Governor General, being precluded by Act 24 and 25 Vict c.67, section 22, from legislating directly as to the sovereignty or dominion of the Crown over any part of its territories in India, or as to the allegiance of British subjects, could not, by any legislative Act, purporting to make a notification in a Government Gazette which is conclusive evidence of a cession of territory, exclude inquiry as to the nature and lawfulness of that cession".

In other words, such notification cannot, in spite of Section 113, be conclusive proof and the courts can inquire into the nature and lawfulness of the cession. Thus, the Privy Council has practically held that the section is ultra vires of the powers of the Governor-General.

The question has now become academic as there is no longer any British territory (Maganbhai v. Union of India: AIR 1969 SC 783) (As to the Governor General in Council's power to legislate see, Alter Caufran v. Govt. of Bombay: ILR 18 Bom 636.)

Whittney Stokes had stated that the section should be repealed as an ultravires provision (Anglo-Indian Codes Vol.II, p. 835) (quoted by Sarkar, 15th Ed., 1999, page 1626).

We agree with para 55.3 of the 69th Report that this section 113 be deleted.

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