Kavalappara Kottarathil Kochunnimoopil
Nayar Vs. The State of Madras & Ors  INSC 19 (4 March 1959)
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
SINHA, BHUVNESHWAR P.
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)
Fundamental Rights, Enforcement of
Maintainability of Petition-Powers and jurisdictions of Supreme Court-Extent
Constitution of India, Art. 32.
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 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 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,
 S.C.R. 566 and Romesh Thappar v. The State of Madras,  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.,  S.C.R.
391, distinguished and held inapplicable.
Where an enactment such as the impugned Act,
unlike 318 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,  S.C.R. 1069 and Himmatlal Harilal Mehta v. The State of Madhya
Pradesh,  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,  S.C.R.
goo, Rashid Ahmed v. Municipal Board,
Kairana,  S.C.R.
566, T. C. Basappa v. T. Nagappa,  1
S.C.R. 250 and Ebrahim Vazir Marat v. The State of Bombay,  S.C.R.
933, relied on.
Maharaj Umeg Singh v. The State Of Bombay,
 2 S.C.R.
This court would fail in its duty as the
custodian and protector 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,  S.C.R.
869,Kathi Raning Rawat v. The State of
Saurashtra,  S.C.R. 435 and Ramkrishna Dalmia v. Shri' justice S. R.
Tendolkar,  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
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.
ORIGINAL JURISDICTION: Petitions No. 433 of
1955 and 40-41 of 1956.
Petitions under Article 32 of the
Constitution of India for 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
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 sthanee petitioner applied to the High
Court of Madras for the issue of a writ to 321 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.  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
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 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 sthanams
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
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 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 fundamental rights and it
cannot, consistently with the responsibility so laid upon it, (1)  S.C.R.
(2)  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.
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)
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 present petitions
comprise disputes between two sets of private individuals unconnected with any
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) 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 so instant
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)  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 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)  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
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, 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
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.
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 affect
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)
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
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 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)  S.C.R. 566. (2)  1 S.C.R.
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 wellestablished 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)  S.C.R. 933, 941(2)  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 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
The last point urged in support of the plea
as to the nonmaintainability 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 respondents, 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
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)  S.C.R. 869, 900.
(2)  S.C.R. 435.
(3)  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 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 observing 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.