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TMI Blog1959 (3) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... ord, 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. 2. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 withdraw the Cochin suit. The matter rested here for the time being. 3. 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 pauperis. 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 pauper suit, the sthanee petitioner, on August 3, 1955, executed two deeds of gift, one in respect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 Marumakkathayam Act, 1932 (Madras Act XXII of 1933)." 5. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Art. 32 of the Constitution which is itself a guaranteed right. In Rashid Ahmed v. Municipal Board, Kairana [1950]1SCR566 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 under Art. 32 are much wider and are not confined to issuing prerogative writs only." 8. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 12 of the Constitution and his petition 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 denied 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 sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led 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 [1953]4SCR1069 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 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 licence in some other cases as a condition for the carrying on of their business, which requirement, without anything more, was sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppara 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, automatically taken away or abridged and the impugned Act has the effect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint, it would appear from 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 as a declaratory suit". 13. 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". 14. 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 Mukherjea, J., is in accord with the decision of this Court in the earlier case of Rashid Ahmed v. Municipal Board, Kairana [1950]1SCR566 . 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 will-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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances which lead to the issue of the impugned notification and the matters 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 onu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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