Full Judgment Text
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PETITIONER:
KAVALAPPARA KOTTARATHIL KOCHUNNIMOOPIL NAYAR
Vs.
RESPONDENT:
THE STATE OF MADRAS AND OTHERS(and connected petition)
DATE OF JUDGMENT:
04/03/1959
BENCH:
DAS, SUDHI RANJAN (CJ)
BENCH:
DAS, SUDHI RANJAN (CJ)
BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
SUBBARAO, K.
WANCHOO, K.N.
CITATION:
1959 AIR 725 1959 SCR Supl. (2) 316
CITATOR INFO :
D 1960 SC 321 (23)
R 1960 SC 554 (15)
R 1962 SC 797 (20)
R 1962 SC1621 (75,81,111)
RF 1963 SC 996 (6)
RF 1991 SC1070 (3)
ACT:
Fundamental Rights, Enforcement of Maintainability of
Petition-Powers and jurisdictions of Supreme Court-Extent
Constitution of India, Art. 32.
HEADNOTE:
The petitioner in Petition No. 143 was the Moopil Nair of
the Kavalappara sthanam and, as the sthanee, claimed to be
the sole proprietor of the sthanam properties. The
respondents Nos. 2 to 17, who were the junior members of the
Kavalappara tarward or family, resisted the claim on the
ground that the properties were tarward properties and they
had rights in them. There was litigation between the
parties and ultimately the Privy Council held in favour of
the petitioner. The petitioner transferred some of the
properties to his wife and two daughters and son and they
were the petitioners in the two other petitions. The
parties were governed by the Marumakkathayam Law and in 1955
the Madras Legislature, purporting to remove certain
misapprehensions evident in decisions of courts, passed the
Madras Marumakkathayani (Removal of Doubts) Act, 1955 (Act
32 of 1955) which by s. 2 provided as follows:-
" 2. Certain kinds of sthanam properties declared to be
tarward properties :-Notwithstanding any decision of Court,
any sthanam in respect of which-
(a)there is or had been at any time an intermingling of
the properties of the sthanam and the properties of the
tarward, or
(b)the members of the tarwad have been receiving main-
tenance from the properties purporting to be sthanam
properties as of right, or in pursuance of a custom or
otherwise, or
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(c)there had at any time been a vacancy caused by there
being no male member of the tarwad eligible to succeed to
the sthanam,
shall be deemed to be and shall be deemed always to have
been a Marumakkathayam tarwad and the properties
appertaining to such a sthanam shall be deemed to be and
shall be deemed always to have been properties belonging to
the tarwad to which the provisions of the Madras
Marumakkathayam Act, 1932, (Madras Act XXII Of 1932), shall
apply."
317
Immediately after the publication of the Act, the
respondents Nos. 2 to 17, published notices in the press
that by reason of the passing of the Act, Kavalappara estate
had become their tarwad property and that rents could be
paid to the sthanee only as the Karnavan of the properties
and not otherwise. The notices further stated that the
donees under the two deeds of gift executed by the sthanee
were not entitled to the properties conveyed to them and
should not be paid any rents at all. One of the respondents
-filed a partition suit and others also contemplated doing
the same. The petitioners sought for a writ of mandamus or
any other writ or order directing the respondents to forbear
from enforcing the impugned Act against the sthanee and the
sthanam estate and declaring the Act to be unconstitutional
and invalid. Preliminary objection was raised on behalf of
some of the respondents as to the maintainability of the
petitions and it was contended that (1) the prayer for a
writ of mandamus Was not maintainable since there was an
adequate remedy in the partition suit filed by one of the
respondents ; (2) that violation of right of property by
private individuals was not within the purview of Art.
19(1)(f) or Art. 31(1) and the remedy was not by way of
application under Art. 32; (3) that no application under
Art. 32 could be maintained until the State had taken or
threatened to take any action under the impugned law that
would infringe fundamental rights; (4) that the proceeding
under Art. 32 could not be converted into or equated with a
declaratory suit under s. 42 Of the Specific Relief Act in
and (5) that this court could not, on an application under
Art. 32, embark upon an enquiry into disputed questions of
fact.
Held (per Das, C. J., Bhagwati, Sinha and Subba Rao, jj.),
that all the contentions must be negatived and all the
preliminary objections must fail.
The right to enforce a fundamental right conferred by the
Constitution was itself a fundamental right guaranteed by
Art. 32 of the Constitution and this court could not refuse
to entertain a petition under that Article simply because
the petitioner might have any other adequate, alternative,
legal remedy.
Rashid Ahmed v. Municipal Board, Kairana, [1950] S.C.R. 566
and Romesh Thappar v. The State of Madras, [1950] S.C.R.
594, referred to.
In the instant cases as the grievance of the petitioners was
primarily against the impugned Act passed by the Madras
Legislature, which was a State as defined by Art. 12 of the
Constitution and the dispute was not one between two sets of
private individuals but between the petitioners on the one
hand and the State and persons claiming under a law made by
the State on the other, Art. 32 must apply.
P.D. Shamdasani v. Central Bank of India Ltd., [1952] S.C.R.
391, distinguished and held inapplicable.
Where an enactment such as the impugned Act, unlike
318
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others that contemplated some further action to be taken by
the State after the enactment had come into force,
automatically took away or abridged a person’s fundamental
rights immediately it came into force, there was no reason
why the aggrieved person should not immediately be entitled
to seek the’ remedy under Art. 32 Of the Constitution.
State of Bombay v. United, Motors (India) Limited, [1953]
S.C.R. 1069 and Himmatlal Harilal Mehta v. The State of
Madhya Pradesh, [1954] S.C.R. 122, referred to.
In view of the language used in S. 2 of the impugned Act and
its effect, there could be no doubt that the petitioners
could legitimately complain that their fundamental right to
hold and dispose of the sthanam properties have been
violated by the action of the Legislature.
Article 32 of the Constitution conferred wide powers on this
Court and such powers were not confined to the issuing of
prerogative writs alone. In appropriate cases, this court
had the right in its discretion to frame its writs or orders
suitable to the exigencies created by enactments. It was
clear on the authorities that this Court could, where the
occasion so required, make even a declaratory order with
consequential relief under Art. 32 of the Constitution.
Chiranjit Lal Chowdhury v. The Union of India, [1950] S.C.R.
goo, Rashid Ahmed v. Municipal Board, Kairana, [1950] S.C.R.
566, T. C. Basappa v. T. Nagappa, [1955] 1 S.C.R. 250 and
Ebrahim Vazir Marat v. The State of Bombay, [1954] S.C.R.
933, relied on.
Maharaj Umeg Singh v. The State Of Bombay, [1955] 2 S.C.R.
164, considered.
This court would fail in its duty as the custodian and pro-
tector of the fundamental rights if it were to decline to
entertain a petition under Art. 32 simply because it
involved the determination of disputed questions of fact.
Clause (2) of Art. 32 conferred on this court the power to
issue directions or orders or writs of various kinds
mentioned therein and in dismissing a petition, it had
either to hold that any particular writ asked for was not
appropriate to the occasion or that the petitioner had
failed to establish a fundamental right or its breach . In
either case, however, it had to decide the petition on
merits.
Chiranjit Lal Chowdhuri v. The Union of India, [1950] S.C.R.
869,Kathi Raning Rawat v. The State of Saurashtra, [1952]
S.C.R. 435 and Ramkrishna Dalmia v. Shri’ justice S. R.
Tendolkar, [1959] S.C.R. 279, referred to.
In appropriate cases opportunity might also be given to the
parties to establish their cases by further affidavits, or
by issuing a commission or even by setting the application
down for trial on evidences.
Per Wanchoo, J.-If the petitions were based solely on the
infringement of Art. 14, there could be no doubt that they
would not be maintainable. Even though they were based on
the
319
infringement of Art. 19(1)(f) also, their maintainability
would still be in doubt in the absence of any further
provision in the impugned Act for its direct enforcement by
the State.
JUDGMENT:
ORIGINAL JURISDICTION: Petitions No. 433 of 1955 and 40-41
of 1956.
Petitions under Article 32 of the Constitution of India for
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enforcement of Fundamental Rights.
M.C. Setalvad, Attorney-General for -India, M. K.
Nambiyar, J. B. Dadachanji, S. N. Andley and Rameshwar Nath,
for the petitioners.
T. M. Sen, for the State of Madras.
K. V. Suryanarayana Iyer, Advocate-General for the State
of Kerala and T. M. Sen, for the State of Kerala.
M. R. Krishna Pillai, for respondents Nos. 2-9. Purshottam
Tricumdas and M. R. Krishna Pillai, for respondent No. 12 in
Petitions Nos. 40 and 41 of 1956.
K.R. Krishnaswami, for respondents Nos. 11, 13-17 in
Petn. No. 443 of 55.
Purshottam Tricumdas and K. R. Krishnaswami, for respondent
No. 12 in Petn. No. 443 of 55.
A.V. Viswanatha Sastri and M. R. Krishna Pillai, for
Intervener No. 1.
Sardar Bahadur, for Intervener No. 2.
M. R. Krishna Pillai, for Intervener No. 3.
1959. March 4. The Judgment of Das, C. J., Bhagwati, Sinha
and Subba Rao, JJ., was delivered by Das, C. J. Wanchoo, J.,
delivered a separate Judgment.
DAS, C. J.-The circumstances leading up to the presentation
of the above noted three petitions under Art. 32, which have
been heard together, may be shortly stated :
In pre-British times the Kavalappara Moopil Nair, who was
the senior-most male -member of Kavalappara Swaroopam of
dynastic family, was the ruler of the Kavalappara territory
situate in Walluvanad
320
Taluk in the district of South Malabar. He was an
independent prince or chieftain having sovereign rights over
his territory and as such was the holder of the Kavalappara
sthanam, that is to say, " the status and the attendant
property of the senior Raja ". Apart from the Kavalappara
sthanam, which was a Rajasthanam the Kalvappara Moopil Nair
held five other sthanams in the same district granted to his
ancestors by the superior overlord, the Raja of Palghat, as
reward for military services rendered to the latter. He
also held two other sthanams in Cochin, granted to his
ancestors by another overlord, the Raja of Cochin, for
military services. Each of these sthanams has also
properties attached to it and such properties belong to the
Kavalappara Moopil Nair who is the sthanee thereof. On the
death in 1925 of his immediate predecessor the petitioner in
Petition No. 443 of 1955 became the Moopil Nair of
Kavalappara and as such the holder of the Kavalappara
sthanam to which is attached the Kavalappara estate and also
the holder of the various other sthanams in Malabar and
Cochin held by the Kavalappara Moopil Nair. The petitioner
in Petition No. 443 of 1955 will hereafter be referred to as
" the sthanee petitioner ". According to him all the
properties attached to all the sthanams belong to him and
respondents 2 to 17, who are the junior members of the
Kavalappara family or tarwad, have no interest in them.
The Madras Marumakkattayam Act (Mad. XXII of 1932) passed
by the Madras Legislature came into force on August 1, 1933.
This Act applied to tarwads and not to sthanams and s. 42 of
the Act gave to the members of a Malabar tarwad a right to
enforce partition of tarward properties or to have them
registered as impartible. In March 1934 respondents 10 to
17, then constituting the entire Kavalappara tarwad, applied
under s. 42 of the said Act for registration of their family
as an impartible tarwad. In spite of the objection raised
by the sthanee petitioner, the SubCollector ordered the
registration of the Kavalappara tarwad as impartible. The
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sthanee petitioner applied to the High Court of Madras for
the issue of a writ to
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quash the order of the Sub Collector, but the High Court
declined to do so on the ground that the sthanee petitioner
had no real grievance as the said order did not specify any
particular property as impartible property. While this
decision served the purpose of the sthanee petitioner, it
completely frustrated the object of respondents 10 to 17.
On April 10, 1934, therefore, respondents 10 to 17 filed O.
S. No. 46 of 1934 in the court of the Subordinate Judge of
Ottapalam for a declaration that all the properties under
the management of the defendant (meaning the sthanee
petitioner) were tarwad properties belonging equally and
jointly to the plaintiffs (meaning the respondents 10 to 17
herein) and the defendant, i.e., the sthanee petitioner, and
that the latter was in management thereof only as the
Karnavan and manager of the tarwad. The sthanee petitioner
contested the suit asserting that he was the Kavalappara
Moopil Nair and as such a sthanee and that the properties
belonged to him exclusively and that the plaintiffs (the
respondents 10 to 17 herein) had no interest in the suit
properties. By his judgment pronounced on February 26,
1938, the Subordinate Judge dismissed the O. S. 46 of 1934.
The plaintiff (the respondents 10 to 17 herein) went up in
appeal to the Madras High Court, which, on April 9, 1943,
allowed the appeal and reversed the decision of the
Subordinate Judge and decreed the suit. That judgment will
be found reported in Kuttan Unni v. Kochunni (1). The
defendant, i.e., the sthanee petitioner herein carried the
matter to the Privy Council and the Privy Council by its.
judgment, pronounced on July 29, 1947, reversed the judgment
of the High Court and restored the decree of dismissal of
the suit passed by the Subordinate Judge. In the meantime
in 1946 respondents 10 to 17 had filed a suit (O. S. 77 of
1121) in the Cochin Court claiming similar reliefs in
respect of the Cochin sthanam. After the judgment of the
Privy Council was announced, respondents 10 to 17 withdrew
the Cochin suit. The matter rested here for the time being.
(1) (1943) I.LR. [1944] Mad. 515.
41
322
On February 16, 1953, respondents 10 to 17 took the
initiative again and presented a Memorial to the Madras
Government asking that legislation be undertaken to reverse
the Privy Council decision. The Government apparently did
not think fit to take any action on that Memorial.
Thereafter a suit was filed in the court of the Subordinate
Judge at Ottapalam by respondents 2 to 9 who were then the
minor members of the tarwad claiming Rs. 4,23,000 as arrears
of maintenance and Rs. 44,000 as yearly maintenance for the
future. The suit was filed in forma pauperism There were
some interlocutory proceedings in this suit for compelling
the defendant (i.e., the sthanee petitioner) to deposit the
amount of the maintenance into court which eventually came
up to this Court by special leave but to which it is not
necessary to refer in detail. During the pendency of that
paper suit, the sthanee petitioner, on August 3, 1955,
executed two deeds of gift, one in respect of the Palghat
properties in favour of his wife and two daughters who are
the petitioners in. Petition No. 40 of 1956 and the second
in respect of the Cochin properties in favour of his son who
is the petitioner in Petition No. 41 of 1956.
Meanwhile respondents 2 to 17 renewed their efforts to
secure legislation for the reversal of the decree of the
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Privy Council and eventually on August 8, 1955, procured a
private member of the Madras Legislative Assembly to
introduce a Bill (L. A. Bill No. 12 of 1955) intituled "
The Madras Marumakkathayam (Removal of Doubts) Bill, 1955 "
with only two clauses on the allegation, set forth in the
statement of objects and reasons appended to the Bill, that
certain decisions of courts of law had departed from the age
old customary law of Marumakkathayees with regard to stha-
nams and sthanam properties and that those decisions were
the result of a misapprehension of the customary law which
governed the Marumakkathayees from ancient times and tended
to disrupt the social and economic structure of several
ancient Marumakkathayam families in Malabar in that
Karnavans of tarwad were encouraged to claim to be sthanees
and thus deny the legitimate rights of the members of
tarwads
323
with the result that litigation had arisen or were pending.
It was said to be necessary, in the interests of harmony and
well being of persons following the Marumakkathayam law,
that the correct position of customary law governing
sthanams and sthanam properties should be clearly declared.
This Bill came before the Madras Legislative Assembly on
August 20, 1955, and was passed on the same day. The Bill
having been placed before the Madras Legislative Council,
the latter passed the same on August 24, 1955. The assent
of the President to the Bill was obtained on October 15,
1955, and the Act intituled "the Madras Murumakkathayam
(Removal of Doubts) Act, 1955 " being Madras Act 32 of 1955
and hereinafter referred to as the impugned Act, was
published in the official gazette on October 19, 1955.
Section I of the impugned Act is concerned with the short
title and its application. Section 2, which is material for
our purposes, is expressed in the following terms:
" 2. Certain kinds of sthanam properties declared to be
tarwad properties:-Notwithstanding any decision of Court,
any sthanam in respect of which-
(a) there is or had been at any time an intermingling of
the properties of the sthanam and the properties of the
tarwad, or
(b)the members of the tarwad have been receiving
maintenance from the properties purporting to be sthanam
properties as of right, or in pursuance of a custom or
otherwise, or
(c)there had at any time been a vacancy caused by there
being no male member of the tarwad eligible to succeed to
the sthanam,
shall be deemed to be and shall be deemed always to have
been a Marumakkathayam tarwad and the properties
appertaining to such a sthanam shall be deemed to be and
shall be deemed always to have been properties belonging to
the tarwad to which the provisions of the Madras
Marumakkathayam Act, 1932, (Madras Act XXII of 1933), shall
apply.
Explanation-All words and expressions used in this Act shall
bear the same meaning as in the Madras
324
Marumakkathayam Act, 1932 (Madras Act XXII of 1933). "
Almost immediately after the publication of the impugned Act
in the gazette, respondents 2 to 17 published notices in "
Mathrubumi ", a Malayalam daily paper with large circulation
in Malabar, Cochin and Travancore, to the effect that by
reason of the passing of the impugned Act, Kavalappara
estate had become their tarwad properties and that rents
could be paid to the sthanee petitioner only as the Karnavan
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of the properties and not otherwise. The notices further
stated that the donees under the two deeds of gift executed
by the sthanee petitioner were not entitled to the
properties conveyed to them and should not be paid any rent
at all. After the passing of the impugned Act one of the
respondents filed another suit, also in forma pauperis, in
the same court. It is also alleged by the petitioners that
respondents 2 to 17 are contemplating the filing of yet
another suit for partition, taking advantage of the
provisions of the impugned Act.
It was in these circumstances detailed above that the
Kavalappara Moopil Nair, i.e., the sthanee petitioner, on
December 12, 1955, filed the present petition No. 443 of
1955 under Art. 32 of the Constitution. This was followed
by Petition No. 40 of 1956 by his wife and two daughters and
Petition No. 41 of 1956 by his son. Both the last mentioned
petitions were filed on February 3, 1956. The first
respondent in all the three petitions is the State of Madras
and respondents 2 to 17 are the members of the sthanee
petitioner’s tarwad. In his petition the sthanee petitioner
prays " that a writ of Mandamus or any other proper ,writ,
order or directions be ordered to issue for the purpose of
enforcing his fundamental rights, directing the respondents
to forbear from enforcing any of the provisions of the
Madras Act 32 of 1955 against the petitioner, his
Kavalappara sthanam and Kavalappara estate, declaring the
said Act to be unconstitutional and invalid ". The prayers
in the other two petitions are mutatis mutandis the same.
Shri Purshottam Tricumdas appearing for some of
325
the respondents has taken a preliminary objection as to the
maintainability of the petitions. The argument in support
of his objection has been developed and elaborated by him in
several ways. In the first place, he contends that the
petitions, in so far as they pray for the issue of a writ of
Mandamus, are not maintainable because the petitioners have
an adequate remedy in that they can agitate the questions
now sought to be raised on these petitions and get relief in
the pauper suit filed by one of the respondents after the
passing of the impugned Act. This argument overlooks the
fact that the present petitions are under Art. 32 of the
Constitution which is itself a guaranteed right. In Rashid
Ahmed v. Municipal Board, Kairana (1) this Court repelled
the submission of the Advocate-General of Uttar Pradesh to
the effect that, as the petitioner had an adequate legal
remedy by way of appeal, this Court should not grant any
writ in the nature of the prerogative writ of Mandamus or
Certiorari and observed:
" There can be no question that the existence of ,an
adequate legal remedy is a thing to be taken into
consideration in the matter of granting writs, but the
powers given to this Court tinder Art. 32 are much wider and
are not confined to issuing prerogative writs only."
Further, even if the existence of other adequate legal
remedy may be taken into consideration by the High Court in
deciding whether it should issue any of the prerogative
writs on an application under Art. 226 of the Constitution,
as to which we say nothing now this Court cannot, on a
similar ground, decline to entertain a petition under Art.
32, for the right to move this Court by appropriate
proceedings for the enforcement of the rights conferred by
Part III of the Constitution is itself a guaranteed right.
It has accordingly been held by this Court in Romesh Thappar
v. The State of Madras (2) that under the Constitution this
Court is constituted the protector and guarantor of
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fundamental rights and it cannot, consistently with the
responsibility so laid upon it,
(1) [1950] S.C.R. 566.
(2) [1950] S.C.R. 594.
326
refuse to entertain applications seeking the protection of
this Court against infringement of such rights, although
such applications are made to this Court in the first
instance without resort to a High Court having concurrent
jurisdiction in the matter. The mere existence of an
adequate alternative legal remedy cannot per se be a good
and sufficient ground for throwing out a petition under Art.
32, if the existence of a fundamental right and a breach,
actual or threatened, of such right is alleged and is prima
facie established on the petition.
The second line of argument advanced by learned counsel is
that the violation of the right to property by private
individuals is not within the purview of Art. 19(1)(f) or
Art. 31(1) and that a person whose right to property is
infringed by a private individual must, therefore, seek his
remedy under the ordinary law and not by way of an
application under Art. 32. In support of this part of his
argument, learned counsel relies on the decision of this
Court in P. D. Shamdasani v. Central Bank of India Ltd. (1).
In that case the respondent Bank had, in exercise of its
right of lien under its articles of association, sold
certain shares belonging to the petitioner and then the
latter started a series of proceedings in the High Court
challenging the right of the Bank to do so. After a long
lapse of time, after all those proceedings had been
dismissed, the petitioner instituted a suit against the Bank
challenging the validity of the sale of his shares by the
Bank. The plaint was rejected by the court under O. 7, r.
11(d) of the Code of Civil Procedure as barred by
limitation. Thereupon the petitioner filed an application
under Art. 32 of the Constitution praying that all the
adverse orders made in the previous proceedings be quashed
and the High Court be directed to have " the above suit set
down to be heard as undefended and pronounce judgment
against the respondent or to make such orders as it thinks
fit in relation to the said suit ". It will be noticed that
the petitioner had no grievance against the State as defined
in Art. 12 of the Constitution and his petition
(1)[1952] S.C.R. 391.
327
was not founded on the allegation that his fundamental right
under Art. 19(1)(f) or Art. 31(1) had been infringed by any
action of the State as so defined or by anybody deriving
authority from the State. The present position is, however,
entirely different, for the gravamen of the complaint of the
sthanee petitioner and the other petitioners, who claim
title from him, is directly against the impugned Act passed
by the Madras Legislature, which is within the expression"
State " as defined in Art. 12. Therefore in the cases now
before us the petitions are primarily against the action of
the State and respondents 2 to 17 have been impleaded
because they are interested in denying the petitioner’s
rights created in their favour by the impugned Act. Indeed
by means of suits and public notices, those respondents have
in fact been asserting the rights conferred upon them by the
impugned Act. In these circumstances, the petitioners’
grievance is certainly against the action of the State which
by virtue of the definition of that term given in Art. 12 of
the Constitution, includes the Madras Legislature and it
cannot certainly be said that the subject matters of the
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present petitions comprise disputes between two sets of
private individuals unconnected with any State action.
Clearly disputes are between the petitioners on the one hand
and the State and persons claiming under the State or under
a law made by the State on the other hand. The common case
of the petitioners and the respondents, therefore, is that
the impugned Act does affect the right of the petitioners to
hold and enjoy the properties as sthanam properties; but,
while the petitioners contend that the law is void, the
respondents maintain the opposite view. In our opinion
these petitions under Art. 32 are not governed by our
decision in P. D. Shamdasani’s case (1) and we see no reason
why, in the circumstances, the petitioners should be
debarred from availing themselves of their constitutional
right to invoke the jurisdiction of this Court for obtaining
redress against infringement of their fundamental rights.
(1)[1952] S.C.R. 391,
328
The third argument in support of the preliminary point is
that an application under Art. 32 cannot be maintained until
the State has taken or threatens to take any action under
the impugned law which action, if permitted to be taken,
will infringe the petitioners’ fundamental rights. It is
true that the enactments abolishing estates contemplated
some action to be taken by the State, after the enactments
came into force, by way of issuing notifications, so as to
vest the estates in the State and thereby to deprive the
proprietors of their fundamental right to hold and enjoy
their estates. Therefore, under those enactments some overt
act had to be done by the State before the proprietors were
actually deprived of their right, title and interest in
their estates. In cases arising under those enactments the
proprietors could invoke the jurisdiction of this Court
under Art. 32 when the State did or threatened to do the
overt act. But quite conceivably an enactment may
immediately on its coming into force take away or abridge
the, fundamental rights of a person by its very terms and
without any further overt act being done. The impugned Act
is said to be an instance, of such enactment. In such a
case the infringement of the fundamental right is complete
eo instanti the passing of the enactment and, therefore,
there can be no reason why -the person so prejudicially
affected by the law should not be entitled immediately to
avail himself of the constitutional remedy under Art. 32.
To say that a person, whose fundamental right has been
infringed by the mere operation of an enactment, is not
entitled to invoke the jurisdiction of this Court under Art.
32, for the enforcement of his right, will be to deny him
the benefit of a salutary constitutional remedy which is
itself his fundamental right. The decisions of this Court
do not compel us to do so. In the State of Bombay v. United
Motors (India) Limited (1) the petitioners applied to the
High Court on November 3, 1952 under Art. 226, of the
Constitution challenging the validity of the Bombay Sales
Tax Act, 1952, which came into force on November 1, 1952.
No notice had
(1) [1953] S.C.R. 1069.
329
been issued, no assessment proceeding had been started and
no demand had been made on the petitioners for the payment
of any tax under the impugned Act. It should be noted that
in that petition one of the grounds of attack was that the
Act required the dealers, on pain of penalty, to apply for
registration in some cases and to obtain a license in some
other cases as a condition for the carrying on of their
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business, which requirement, without anything more, was said
to have infringed the fundamental rights of the petitioners
under Art. 19(1)(g) of the Constitution and no objection
could, therefore, be taken to the maintainability of the
application. Reference may also be made to the decision of
this Court in Himmatlal Harilal Mehta v. The State of Madhya
Pradesh (1). In that case, after cotton was declared, on
April 11, 1949, as liable to sales tax under the Central
Provinces and Berar Sales Tax Act, 1947, the appellant
commenced paying the tax in respect of the purchases made by
him and continued to pay it till December 31, 1950. Having
been advised that the transactions (lone by him in Madhya
Pradesh were not " sales " within that State and that
consequently he could not be made liable to pay sales tax in
that State, the appellant declined to pay the tax in respect
of the purchases made during the quarter ending March 31,
1951. Apprehending that he might be subjected to payment of
tax without the authority of law, the-appellant presented an
application to the High Court of Judicature at Nagpur under
Art. 226 praying for an appropriate writ or writs for
securing to him protection from the impugned Act and its
enforcement by the State. The High Court declined to issue
a writ and dismissed the petition on the ground that a
mandamus could be issued only to compel an authority to do
or to abstain from doing some act and that it was seldom
anticipatory and was certainly never issued where the action
of the authority was dependent on some action of the
appellant and that in that case the appellant had not even
made his return and no demand for the tax could be made from
him.
(1) [1954] S.C.R. 1122.
42
330
Being aggrieved by that decision of the High Court, the
petitioner in that case came up to this Court on appeal and
this Court held that a threat by the State to realise the
tax from the assessee without the authority of law by using
the coercive machinery of the impugned Act was a sufficient
infringement of his fundamental right which gave him a
right to seek relief under Art. 226 of the Constitution. It
will be noticed that the Act impugned in that case had by
its terms made it incumbent on all dealers to submit
returns, etc., and thereby imposed restrictions on their
fundamental right to carry on their businesses under Art.
19(1) (g). The present case, however, stands on a much
stronger tooting. The sthanee petitioner is the Kavalappara
Moopil Nair and as such holds certain sthanams and the
petitioners in Petitions Nos. 40 and 41 of 1956 derive their
titles from him. According to the petitioners, the sthanee
petitioner was absolutely entitled to all the properties
attached to all the sthanams and respondents 2 to 17 had no
right, title or interest in any of the sthanam properties.
Immediately after the passing of the impugned Act, the
Madras Marumakkathayam Act, 1932, became applicable to the
petitioners’ sthanams and the petitioners’ properties became
subject to the obligations and liabilities imposed by the
last mentioned Act. On the passing of the impugned Act, the
sthanee petitioner immediately became relegated from the
status of a sthanee to the status of a Karnavan and manager
and the sthanam properties have become the tarwad properties
and respondents 2 to 17 have automatically become entitled
to a share in those properties along with the petitioners.
The right, title or interest claimed by petitioners in or to
their sthanam properties is, by the operation of the statute
itself and without anything further being done,
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automatically taken away or abridged and the impugned Act
has the effect of automatically vesting in respondents 2 to
17 an interest in those properties as members of the tarwad.
Indeed respondents 2 to 17 are asserting their rights and
have issued public notices on the basis thereof and have
also instituted a suit on the strength of the rights
331
created in them by the impugned Act. Nothing fur; the
remains to be done to infringe the petitioners right to the
properties as sthanam properties. It is true that the
sthanee petitioner or the other petitioners deriving title
from him are still in possession of the sthanam properties,
but in the eye of law they no longer possess the right of
the sthanee and they cannot, as the sthanee or persons
deriving title from the sthanee, lawfully claim any rent
from the tenants. In view of the language employed in s. 2
quoted above and its effect the petitioners can legitimately
complain that their fundamental right to hold and dispose of
the sthanam properties has been injured by the action of the
Legislature which is " State " as defined in Art. 12 of the
Constitution. In the premises, the petitioners are prima
facie entitled to seek their fundamental remedy under Art.
32.
The next argument in support of the objection as to the
maintainability of these petitions is thus formulated: The
impugned Act is merely a piece of a declaratory legislation
and does not contemplate or require any action to be taken
by the State or any other person and, therefore, none of the
well-known prerogative writs can afford an adequate or
appropriate remedy to a person whose fundamental right has
been infringed by the mere passing of the Act. If such a
person challenges the validity of such an enactment, he must
file a regular suit in a court of competent jurisdiction for
getting a declaration that the law is void and, therefore,
cannot and does not effect his right. In such a suit he can
also seek consequential reliefs by way of injunction or the
like, but he cannot avail himself of the remedy under Art.
32. In short, the argument is that the proceeding under
Art. 32 cannot be converted into or equated with a
declaratory suit under s. 42 of the Specific Relief Act.
Reference is made, in support of the aforesaid contention,
to the following passage in the judgment of Mukherjea, J.,
as he then was, in the case of Chiranjit Lal Chowdhuri v.
The Union of India(1) :-
" As regards the other point, it would appear from
(1)[1950] S.C.R. 869, 900.
332
the language of article 32 of the Constitution that the sole
object of the article is the enforcement of fundamental
rights guaranteed by the Constitution. A proceeding under
this article cannot really have any affinity to what is
known a,; a declaratory suit".
But further down on the same page his Lordship said:-
Any way, article 32 of the Constitution gives us very wide
discretion in the matter of framing our writs to suit the
exigencies of particular cases, and the application of the
petitioner cannot be thrown out simply on the ground that
the proper writ or direction has not been prayed for ".
It should be noted that though in that case the petitioner
prayed, inter alia, for a declaration that the Act
complained of was void under Art. 13 of the Constitution it
was not thrown out on that ground. The above statement of
the law made by Mukhekjea, J., is in accord with the
decision of this Court in the earlier case of Rashid Ahmed
v. Municipal Board, Kairana (1). The passage from our
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judgment in that case, which has already been quoted above,
also acknowledges that the powers given to this Court by
Art. 32 are much wider and are not confined to the issuing
of prerogative writs only. The matter does not rest there.
In T. C. Basappa v. T. Nagappa (2) Mukherjea, J., again
expressed the same view:-(Page 256).
" The language used in articles 32 and 226 of our
Constitution is very wide and the powers of the Supreme
Court as well as of all the High Courts in India extend to
issuing of orders, writs or directions including writs in
the nature of habeas corpus, mandamus, quo warranto,
prohibition and certiorari as may be considered necessary
for enforcement of the fundamental rights and in the case of
the High Courts, for other purposes as well. In view of the
express provisions of our Constitution we need not now look
back to the early history or the procedural technicalities
of these writs in English law, nor feel oppressed by any
difference or change of opinion expressed in particular
cases by English Judges ".
(1) [1950] S.C.R. 566. (2) [1955] 1 S.C.R. 250, 256.
333
In Ebrahim Vazir Mayat v. The State of Bombay (1) the order
made by the majority of this Court was framed as follows:-
" As a result of the foregoing discussion we declare section
7 to be void under Article 31(1) in so far as it conflicts
’which the fundamental right of a citizen of India under
article 19(1) (e) of the Constitution and set it aside. The
order will, however, operate only upon proof of the fact
that the appellants are citizens of India. The case will,
therefore, go back to the High Court for a finding upon this
question. It will be open to the High Court to determine
this question itself or refer it to the court of District
Judge for a finding ". That was a case of an appeal coming
from a High Court and there was no difficulty in remanding
the case for a finding, on an issue, but the fact to note is
that this Court did make a declaration that s. 7 of the Act
was void. We are not unmindful of the fact that in the case
of Maharaj Umeg Singh v. The State of Bombay(2) which came
up before this Court on an application under Art. 32, the
petitioner had been relegated to filing a regular suit in a
proper court having jurisdiction in the matter. But on a
consideration of the authorities it appears to be well-
established that this Court’s powers under Art. 32 are wide
enough to make even a declaratory order where that is the
proper relief to be given to the aggrieved party. The
present case appears to us precisely to be an appropriate
case, if the impugned Act has taken away or abridged the
petitioners’ right under Art. 19(1) (f) by its own terms and
without anything more being done and such infraction cannot
be justified. If, therefore, the contentions of the
petitioners be well-founded, as to which we say nothing at
present, a declaration as to the invalidity of the impugned
Act together with the consequential relief by way of
injunction restraining the respondents and in particular
respondents 2 to 17 from asserting any rights under the
enactment so declared void will be the only appropriate
reliefs which the petitioners will be entitled to get.
Under Art. 32 we must, in appropriate cases, exercise our
discretion and
(1) [1954] S.C.R. 933, 941-
(2) [1955] 2 S.C R. 164.
334
frame our writ or order to suit the exigencies of this case
brought about by the alleged nature of the enactment we are
considering. In a suit for a declaration of their titles on
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the impugned Act being declared void, respondents 2 to 17
will certainly be necessary parties, as persons interested
to deny the petitioners’ title. We see no reason why, in an
application under Art. 32 where declaration and injunction
are proper reliefs, respondents 2 to 17 cannot be made
parties. In our opinion, therefore, there is no substance
in the argument advanced by learned counsel on this point.
The last point urged in support of the plea as to the non-
maintainability of these applications is that this Court
cannot, on an application under Art. 32, embark upon an
enquiry into disputed question of fact.- The argument is
developed in this, way. In the present case the petitioners
allege, inter alia, that the impugned Act has deprived them
of their fundamental right to the equal protection of the
law and equality before the law guaranteed by Art. 14 of the
Constitution. Their complaint is that they, have been
discriminated against in that they and their sthanam
properties have been singled out for hostile treatment by
the Act. The petitioners contend that there is no other
sthanam which comes -within the purview of this enactment
and that they and the sthanams held by them are the only
target against which this enactment is directed. The res-
pondents, on the other hand, contend that the language of s.
2 is wide and general and the Act applies to all sthanams to
which one or more of the conditions specified in s. 2 may be
applicable and that this Court cannot, on an application
under Art. 32, look at any extraneous evidence but must
determine the issue on the terms of the enactment alone and
that in any event this Court cannot go into disputed
questions of fact as to whether there are or are not other
sthanees or sthanams similarly situate as the petitioners
are. In support of his contention Shri Purshottam Tricumdas
refers us to some decisions where some of the High Courts
have declined to entertain applications under Art. 226 of
the Constitution involving disputed
335
questions of fact and relegated the petitioners to regular
suits in courts of competent jurisdiction. We are not
called upon, on this occasion, to enter into a discussion or
express any opinion as to the jurisdiction and power of the
High Courts to entertain and to deal with applications under
Art. 226 of the Constitution where disputed questions of
fact have to be decided and we prefer to confine our
observations to the immediate problem now before us, namely,
the limits of the jurisdiction and power of this Court *hen
acting under Art. 32 of the Constitution. Shri Purshottam
Tricumdas concedes that the petitioners have the fundamental
right to approach this Court for relief against infringement
of their fundamental right. What he says is that the
petitioners have exercised that fundamental right and that
this fundamental right goes no further. in other words he
maintains that nobody has the fundamental right that this
Court must entertain his petition or decide the same when
disputed questions of fact arise in the case. We do not
think that that is a correct approach to the question.
Clause (2) of Art. 32 confers power on this Court to issue
directions or orders or writs of various kinds referred to
therein. This Court may say that any particular writ asked
for is or is not appropriate or it may say that the
petitioner has not established any fundamental right or any
breach thereof and accordingly dismiss the petition. In
both cases this Court decides the petition on merits. But
we do not countenance the proposition that, on an
application under Art. 32, this Court may decline to
entertain the same on the simple ground that it involves the
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determination of disputed questions of fact or on any other
ground. If we were to accede to the aforesaid contention of
learned counsel, we would be failing in our duty as the
custodian and protector of the fundamental rights. We are
not unmindful of the fact that the view that this Court is
bound to entertain a petition under Art. 32 and to decide
the same on merits may encourage litigants to file many
petitions under Art. 32 instead of proceeding by way of a
suit. But that consideration cannot, by itself, be a cogent
reason
336
for denying the fundamental right of a person to approach
this Court for the enforcement of his fundamental right
which may, prima facie, appear to have been infringed.
’Further, questions of fact can and very often are dealt
with on affidavits. In Chiranjitlal Chowdhuri’s case (1)
this Court did not reject the petition in limine on the
ground that it required the determination of disputed
questions of fact as to there being other companies equally
guilty of mismangement. It went into the facts on the
affidavits and held, inter alia, that the petitioner had not
discharged the onus that lay on him to establish his charge
of denial of equal protection of the laws. That decision
was clearly one on merits and is entirely different from a
refusal to entertain the petition at all. In Kathi Raning
Rawat v. The State of Saurashtra (2) the application was
adjourned in order to give the respondent in that case an
opportunity to adduce evidence before this Court in the form
of an affidavit. An affidavit was filed by the respondent
setting out facts and figures relating to an increasing
number of incidents of looting, robbery, dacoity, nose
cutting and murder by marauding gangs of dacoits in certain
areas of the State in support of the claim of the respondent
State that " the security of the State and public peace were
jeopardised and that it became impossible to deal with the
offences that were committed in different places in separate
courts of law expeditiously ". This Court found no
difficulty in dealing with that application on evidence
adduced by affidavit and in upholding the validity of the
Act then under challenge. That was also a decision on
merits although there were disputed questions of fact
regarding the circumstances in which the impugned Act came
to be passed. There were disputed questions of fact also in
the case of Ramkrishna Dalmia v. Shri Justice S. R.
Tendolkar (3). The respondent State relied on the affidavit
of the Principal Secretary to the Finance Ministry setting
out in detail the circumstances which lead to the issue of
the impugned notification and the matters
(1) [1950] S.C.R. 869, 900. (2) [1952] S.C.R. 435.
(3) [1959] S.C.R. 279.
337
recited therein and the several reports referred to in the
said affidavit. A similar objection was taken by learned
counsel for the petitioners in that case as has now been
taken. It was urged that reference could not be made to any
extraneous evidence and that the basis of classification
must appear on the face of the notification itself and that
this Court should not go into disputed questions of fact.
This Court overruled that objection and held that there
could be no objection to the matters brought to the notice
of the Court by the affidavit of the Principal Secretary
being taken into consideration in order to ascertain whether
there was any valid basis for treating the petitioners and
their companies as a class by themselves. As we have
already said, it is possible very often to decide questions
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of fact on affidavits. If the petition and the affidavits
in support thereof are not convincing and the court is not
satisfied that the petitioner has established his
fundamental right or any breach thereof, the Court may
dismiss the petition on the ground that the petitioner has
not discharged the onus that lay on him. The court may, in
some appropriate cases, be inclined to give an opportunity
to the parties to establish their respective cases by filing
further affidavits or by issuing a commission or even by
setting the application down for trial -on evidence, as has
often been done on the original sides of the High Courts of
Bombay and Calcutta, or by adopting some other appropriate
procedure. Such occasions will be rare indeed and such rare
cases should not- in our opinion, be regarded as a cogent
reason for refusing to entertain the petition under Art. 32
on the ground that it involves disputed questions of fact.
For reasons given above we are of opinion that none of the
points urged by learned counsel for the respondents in
support of the objection to the maintainability of these
applications can be sustained. These applications will,
therefore, have to be heard on merits and we order
accordingly. The respondents represented by Shri Purshottam
Tricumdas must pay one set of costs of the hearing Of this
preliminary objection before us to the petitioners,
43
338
WANCHOO, J.-I have read the judgment just delivered by my
Lord the Chief Justice, with which my other brethren concur,
with great care. With the utmost respect for my brethren
for whom I have the highest regard, I must state that if
these applications were based only on the infringement of
Art. 14 of the Constitution, I would have no hesitation in
dismissing them as not maintainable. I need riot elaborate
my reasons in this case and shall content myself by observ-
ing that where the law, as in this case, is general in terms
and there is no question of its direct enforcement by the
State in the form, for example, of grant of licences, issue
of notices, submission of returns, and so on, actually
resulting in wholesale abuse of its provisions, this Court
will not permit an applicant under Art. 32 to lead evidence
to show that the law was meant to hit him alone. However,
the applicants also rely on the infringement of the
fundamental right guaranteed under Art. 19(1)(f). As to
that, I- have doubts whether an application under Art. 32
challenging a general law of this kind, which affects one or
other. of the fundamental rights guaranteed under Art. 19,
can be maintained, in the absence of any further provision
therein for direct enforcement of its provisions by the
State in the form already indicated above, by a person who
merely apprehends that he might in certain eventualities be
affected by it. However, on the present occasion, I do not
propose to press my doubts to the point of dissent and
therefore concur with the proposed order.
Preliminary objection overruled.
339