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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 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. [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