Kavalappara Kottarathil Kochunnimoopil Nayar vs The State of Madras and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: 1959 AIR 725

Decision Date: 04/03/1959

Coram: Das C.J., Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, K.N. Wanchoo, Subba Rao

In the matter titled Kavalappara Kottarathil Kochunnimoopil Nayar versus The State of Madras and others, the Supreme Court of India delivered its judgment on 4 March 1959. The bench that heard the petition consisted of Justices Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha and K. N. Wanchoo, with Chief Justice Das and Justice Sudhi Ranjan also mentioned in the record. The petitioner, identified as the Moopil Nair of the Kavalappara sthanam and referred to as the sthanee, asserted that he alone owned the properties belonging to the sthanam. The respondents numbered as Nos 2 to 17, who were junior members of the Kavalappara tarwad, challenged this claim by arguing that the properties were in fact tarwad property and that they possessed rights over the same. The dispute had already proceeded through the courts, and the Privy Council ultimately ruled in favour of the petitioner. Following that decision, the petitioner conveyed portions of the estate to his wife, two daughters and his son; those transferees subsequently became petitioners in two related proceedings. The parties were subject to the Marumakkathayam law, a matrilineal system governing inheritance and property rights. In response to perceived uncertainties arising from earlier judicial decisions, the Madras Legislature enacted the Madras Marumakkathayani (Removal of Doubts) Act, 1955, designated as Act 32 of 1955. Section 2 of that Act stipulated that certain kinds of sthanam property would be deemed tarwad property notwithstanding any prior court decision. Specifically, if at any time there had been an intermingling of sthanam and tarwad assets, if members of the tarwad had received maintenance from the purported sthanam property as a matter of right, custom or otherwise, or if a vacancy existed because no male tarwad member was eligible to succeed to the sthanam, then the property in question would be considered, for all purposes, a Marumakkathayam tarwad property subject to the provisions of the Madras Marumakkathayam Act, 1932.

Soon after the Act was published, the respondents numbered 2 to 17 issued public notices stating that, by virtue of the new legislation, the Kavalappara estate had become the property of the tarwad and that any rents due should be paid only to the tarwad and not to the sthanee. The notices further contended that the gifts made by the sthanee in two deeds of gift to his wife and children did not confer any legal right to the transferees and that those parties should not receive any rent. One of the respondents subsequently instituted a partition suit, and the others indicated that they might also pursue similar actions. In response, the petitioners applied to the Supreme Court for a writ of mandamus or any other appropriate order, seeking to restrain the respondents from enforcing the impugned Act against the sthanee and the estate, and also asked for a declaration that the Act was unconstitutional and void. A preliminary objection was raised by some respondents challenging the maintainability of the petitions, arguing that the request for a mandamus was not maintainable because an adequate remedy existed in the partition suit filed by one respondent, and contending that violation of property rights by private individuals did not fall within the scope of Article 19(1)(f) or Article 31(1) of the Constitution, thereby rendering the petition an improper application under Article 32.

The notices published by the respondents declared that the estate had become the property of the tarwad under the new Act and that rent could be paid only to the sthanee in his capacity as holder of the properties, and not in any other manner. The notices further asserted that the donees named in the two deeds of gift executed by the sthanee had no right to the conveyed properties and therefore should not receive any rent whatsoever. In response, one of the respondents instituted a partition suit, and the remaining respondents indicated that they might also commence similar partition proceedings. The petitioners, seeking to protect their interests, applied for a writ of mandamus or any other appropriate writ or order that would oblige the respondents to refrain from enforcing the impugned Act against the sthanee and the sthanam estate, and that would declare the Act unconstitutional and void.

Several respondents raised preliminary objections concerning the maintainability of the petitions. They contended that (1) the request for a writ of mandamus was not maintainable because an adequate remedy existed in the partition suit already filed by one respondent; (2) that a violation of property rights by private individuals did not fall within the scope of Article 19(1)(f) or Article 31(1), and consequently the remedy could not be sought under Article 32; (3) that an application under Article 32 could not be entertained until the State had taken, or threatened to take, action under the impugned law that would infringe a fundamental right; (4) that a proceeding under Article 32 could not be transformed into, nor equated with, a declaratory suit under Section 42 of the Specific Relief Act; and (5) that the Court could not, on an Article 32 application, undertake an inquiry into factual disputes. The Court, speaking through Chief Justice Das and Justices Bhagwati, Sinha and Subba Rao, rejected each of these contentions and held that all the preliminary objections must fail. The Court explained that the right to enforce a fundamental right guaranteed by the Constitution is itself a fundamental right under Article 32, and that the Court could not decline to entertain a petition under that article merely because the petitioner might have another adequate legal remedy. The Court relied on the decisions in Rashid Ahmed v. Municipal Board, Kairana [1950] SCR 566 and Romesh Thappar v. The State of Madras [1950] SCR 594. It observed that the petitioners’ grievance was directed primarily against the impugned Act passed by the Madras Legislature, which constituted a State within the meaning of Article 12, and that the dispute was not between private individuals but between the petitioners and the State and its statutory beneficiaries. Accordingly, Article 32 was applicable. The Court distinguished P.D. Shamdasani v. Central Bank of India Ltd. [1952] SCR 391 as inapplicable. Finally, the Court noted that when an enactment such as the impugned Act automatically and immediately deprives a person of a fundamental right upon its commencement, there is no justification for denying the aggrieved person the immediate right to seek the remedy provided by Article 32.

In this case the Court held that the petitioners were entitled to invoke the remedy provided by Article 32 of the Constitution, and it cited the decisions in State of Bombay v. United Motors (India) Limited, [1953] S.C.R. 1069 and Himmatlal Harilal Mehta v. State of Madhya Pradesh, [1954] S.C.R. 122 as authority for that proposition. The Court observed that, in view of the wording of Section 2 of the challenged Act and of its operative effect, the petitioners could unquestionably allege that their fundamental right to hold and dispose of the sthanam properties had been infringed by the legislative action. The Court further explained that Article 32 confers a wide jurisdiction on this Court, a jurisdiction that is not limited merely to the issuance of prerogative writs. In appropriate circumstances the Court may, at its discretion, devise writs or orders that are suited to the exigencies created by the impugned enactment. The authorities demonstrated that, where the situation required, the Court is empowered to make a declaratory order accompanied by consequential relief under Article 32. Accordingly, the Court relied upon the judgments in Chiranjit Lal Chowdhury v. 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. State of Bombay, [1954] S.C.R. 933, and it also considered Maharaj Umeg Singh v. State of Bombay, [1955] 2 S.C.R. 164. The Court warned that it would fail in its constitutional duty as the custodian and protector of fundamental rights if it were to refuse to entertain a petition under Article 32 merely because the matter involved disputed questions of fact. Clause (2) of Article 32 empowers this Court to issue directions, orders, or writs of the various kinds listed therein; therefore, when dismissing a petition the Court must either find that the specific writ requested is unsuitable for the occasion or that the petitioner has not established a breach of a fundamental right, and in either event the petition must be decided on its merits. The Court again cited the authorities of Chiranjit Lal Chowdhury v. Union of India, [1950] S.C.R. 869; Kathi Raning Rawat v. State of Saurashtra, [1952] S.C.R. 435; and Ramkrishna Dalmia v. Justice S. R. Tendolkar, [1959] S.C.R. 279. The Court added that, where appropriate, the parties may be given an opportunity to bolster their cases by filing further affidavits, by the issuance of a commission, or even by setting the matter down for trial upon the evidence. Per Justice Wanchoo, if a petition is founded solely on an alleged violation of Article 14 it would unquestionably be untenable, and even where the petition alleges a breach of Article 19(1)(f), its maintainability remains doubtful in the absence of any provision in the impugned Act authorising direct enforcement by the State. The judgment therefore addressed the original jurisdiction of Petitions No. 433 of 1955 and Petitions Nos. 40-41 of 1956, which were filed under Article 32 for enforcement of fundamental rights, and it listed the counsel appearing, namely M.C. Setalvad, Attorney-General for India, M.K. Nambiyar, J.B. Dadachanji, and S.

Counsel for the petitioners appeared before the Court and were assisted by two advocates. The State of Madras was represented by counsel appointed for that Government. Both the State of Kerala and its Advocate-General were represented by counsel, with one advocate appearing also for the State of Kerala. Respondents numbered two through nine were each represented by a single counsel. In the matters concerning respondent number twelve, which arose in Petitions numbers forty and forty-one of the year nineteen fifty-six, two advocates jointly represented that respondent. Respondents numbered eleven and thirteen through seventeen, who were parties to Petition number four hundred and forty-three of the year nineteen fifty-five, were also represented by a single counsel. In the same petition, respondent number twelve was again represented by two advocates. Intervener number one was represented by two advocates, while Intervener number two was represented by a single advocate. Intervener number three was also represented by a single counsel. All of these appearances were recorded in the official proceedings of the Court.

The judgment concerning the three petitions filed under Article thirty-two of the Constitution was delivered on the fourth day of March in the year nineteen fifty-nine. The principal opinion of the Court was authored by the Chief Justice, whose surname was Das, and was joined by Justices Bhagwati, Sinha and Subba Rao. In addition, Justice Wanchoo issued a separate opinion on the matters before the Court. The Court therefore considered the petitions together, hearing the arguments of the parties and the interveners before rendering its decisions.

The Court set out the historical background that gave rise to the petitions. In the period before British rule, the senior male member of the Kavalappara Swaroopam dynastic family, known as the Kavalappara Moopil Nair, exercised sovereign authority over the Kavalappara territory, which lay within Walluvanad Taluk of the South Malabar district. As an independent prince or chieftain, he possessed the Kavalappara sthanam, meaning the status and the associated property of the senior Raja. In addition to this principal sthanam, the Moopil Nair held five further sthanams in the same district, each granted by the Raja of Palghat as reward for military service rendered to that overlord. He also possessed two sthanams in the Kingdom of Cochin, which had been granted by the Raja of Cochin for similar military contributions. Each sthanam carried with it certain properties, and all such properties were deemed to belong to the Moopil Nair, who was the sthanee, or holder, of those estates. Upon the death of his immediate predecessor in the year nineteen twenty-five, the petitioner in Petition number four hundred and forty-three of the year nineteen fifty-five succeeded to the position of Moopil Nair of Kavalappara. Consequently, he became the holder of the Kavalappara sthanam together with its attached estate, as well as the holder of the various other sthanams situated in Malabar and Cochin that were traditionally held by the Kavalappara Moopil Nair. The petitioner in that petition will be referred to in the judgment as the “sthanee petitioner.” The sthanee petitioner asserted that all properties attached to all of the sthanams were his exclusive property and that respondents numbered two through seventeen, who were junior members of the Kavalappara family, known as tarwads, possessed no interest in any of those properties. The Madras Marumakkattayam Act, enacted by the Madras Legislature as Act number twenty-two of the year nineteen thirty-two and brought into force on the first day of August in the year nineteen thirty-three, applied to tarwads but not to sthanams. Section forty-two of that Act conferred upon members of a Malabar tarwad the right to seek partition of tarwad properties or to have those properties registered as impartible.

In March 1934 the respondents numbered ten through seventeen, who together comprised the whole Kavalappara tarwad, invoked section 42 of the Madras Marumakkattayam Act to have their family entered in the register as an impartible tarwad. Although the sthanee petitioner objected, the Sub-Collector nonetheless ordered that the Kavalappara tarwad be recorded as impartible. The sthanee petitioner then sought a writ from the Madras High Court to set aside the Sub-Collector’s order. The High Court refused, holding that the petitioner had no actual grievance because the order did not identify any specific property as impartible. This refusal favored the sthanee petitioner but defeated the purpose of respondents ten to seventeen. Consequently, on 10 April 1934 the respondents filed Original Suit No. 46 of 1934 in the Subordinate Court at Ottapalam, asking for a declaration that all property administered by the defendant – that is, the sthanee petitioner – was tarwad property owned jointly and equally by both the plaintiffs (the respondents ten to seventeen) and the defendant, and that the defendant’s role was merely that of Karnavan and manager of the tarwad. The sthanee petitioner contested the suit, asserting that he was the Kavalappara Moopil Nair, a sthanee, and that the properties belonged solely to him, leaving the plaintiffs with no interest. The Subordinate Judge delivered a judgment on 26 February 1938 dismissing the suit. The plaintiffs appealed to the Madras High Court, which on 9 April 1943 allowed the appeal, reversed the Subordinate Judge’s order, and decreed in favour of the plaintiffs. The High Court decision is reported in Kuttan Unni v. Kochunni (1943) I.L.R. [1944] Mad. 515. The sthanee petitioner then appealed to the Privy Council, which on 29 July 1947 set aside the High Court judgment and reinstated the Subordinate Judge’s dismissal of the suit. In the interim, in 1946 the respondents had instituted a separate suit, Original Suit No. 77 of 1121, in the Cochin Court seeking similar relief concerning the Cochin sthanam. After the Privy Council’s decision, the respondents withdrew that Cochin suit and the matter remained dormant. On 16 February 1953 the respondents again presented a memorial to the Madras Government requesting legislation to overturn the Privy Council’s ruling, but the Government took no action. Subsequently, respondents numbered two to nine filed another suit in the Subordinate Court at Ottapalam.

In that suit, the plaintiffs were the minor members of the tarwad and they claimed maintenance of Rs 4,23,000 as arrears together with a future yearly maintenance of Rs 44,000. The suit had been filed in forma pauperis. During the course of the proceedings there were several interlocutory applications that sought to compel the defendant, who was the sthanee petitioner, to deposit the maintenance amounts with the court. Those interlocutory matters were eventually taken up by this Court on a special leave, although a detailed discussion of them was not required for the present judgment. While the paper suit was still pending, the sthanee petitioner executed two deeds of gift on 3 August 1955. The first deed transferred the Palghat properties to his wife and two daughters, who later became the petitioners in Petition No 40 of 1956. The second deed transferred the Cochin properties to his son, who later became the petitioner in Petition No 41 of 1956. At the same time, respondents numbered 2 through 17 renewed their campaign to obtain legislation that would overturn the Privy Council decree. Their efforts succeeded on 8 August 1955 when a private member of the Madras Legislative Assembly introduced a bill, identified as Legislative Assembly Bill No 12 of 1955, titled “The Madras Marumakkathayam (Removal of Doubts) Bill, 1955.” The bill contained only two clauses and was accompanied by a statement of objects and reasons. In that statement it was alleged that certain judicial decisions had departed from the ancient customary law of the Marumakkathayees concerning sthanams and sthanam properties. The statement asserted that those decisions stemmed from a misapprehension of the customary law, that such misinterpretation was disrupting the social and economic structure of many ancient Marumakkathayam families in Malabar, and that Karnavans of tarwad were being encouraged to claim sthanee status, thereby denying legitimate rights of tarwad members and giving rise to litigation. The bill further claimed that, for the harmony and welfare of persons following Marumakkathayam law, it was necessary to declare clearly the correct position of customary law governing sthanams and sthanam properties. The bill was placed before the Madras Legislative Assembly on 20 August 1955 and was passed on the same day. It then went to the Madras Legislative Council, which passed it on 24 August 1955. Presidential assent was obtained on 15 October 1955, and the legislation was published in the official gazette on 19 October 1955 as “The Madras Marumakkathayam (Removal of Doubts) Act, 1955,” designated as Madras Act 32 of 1955. Section 1 of the Act dealt with its short title and application. Section 2, which is material for the present case, was worded as follows: “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 has 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.” The section concluded with an explanation that all words and expressions used in this Act shall bear the same meaning as in the Madras Marumakkathayam Act, 1932.

Section 2 of the Madras Murumakkathayam (Removal of Doubts) Act, 1955, declared that any sthanam satisfying one of three conditions would be treated as a Marumakkathayam tarwad and that the property of such a sthanam would forever be regarded as belonging to that tarwad. The three conditions were as follows: first, if at any time there had been a mixing of the sthanam’s property with the property of the tarwad; second, if the members of the tarwad had been receiving maintenance from property that was claimed to be sthanam property, whether by right, by custom, or otherwise; and third, if at any time there had been a vacancy in the sthanam because no male member of the tarwad was eligible to succeed to it. Whenever any of these situations occurred, the law deemed the sthanam to be a tarwad permanently, and the provisions of the Madras Marumakkathayam Act, 1932 (Madras Act XXII of 1933) were to apply to the property. An explanatory clause added that every word and expression used in the 1955 Act would have the same meaning as in the 1932 Act, thereby ensuring that the terminology of the earlier legislation continued to govern the interpretation of the new provisions.

Shortly after the Act was published in the official gazette, respondents numbered two through seventeen placed notices in Mathrubumi, a widely read Malayalam daily in Malabar, Cochin, and Travancore. Those notices declared that, because of the new legislation, the Kavalappara estate had become the property of the respondents as a tarwad and that any rent due should be paid only to the sthanee petitioner in his capacity as Karnavan of the estate, not in any other manner. The notices further asserted that the two deeds of gift executed by the sthanee petitioner did not confer any right to the donees, and that those donees were not entitled to receive any rent from the estate. Following the enactment, one of the respondents instituted another suit in the same court, filing the case in forma pauperis. The petitioners alleged that respondents two through seventeen were planning to file an additional suit for partition, seeking to exploit the provisions of the 1955 Act. In response to these developments, the Kavalappara Moopil Nair, who was the sthanee petitioner, filed petition number 443 of 1955 on 12 December 1955 under Article 32 of the Constitution, seeking the protection of his fundamental rights. Subsequently, his wife and two daughters filed petition number 40 of 1956, and his son filed petition number 41 of 1956; both of these petitions were lodged on 3 February 1956. In each case, the State of Madras was named as the first respondent, while respondents two through seventeen were identified as members of the petitioner’s tarwad. In his petition, the sthanee petitioner prayed that a writ of mandamus, or any other appropriate writ, order, or directive, be issued to enforce his fundamental rights by directing the respondents to refrain from enforcing any provision of Madras Act 32 of 1955 against him, his Kavalappara sthanam, and the Kavalappara estate, and to declare the Act unconstitutional and invalid. The relief sought in the two subsequent petitions was essentially the same, with the appropriate modifications to reflect the different petitioners.

Counsel Tricumdas, appearing for several of the respondents, raised a preliminary objection concerning the maintainability of the petitions. He argued that the petitions seeking a writ of mandamus were not maintainable because the petitioners possessed an adequate remedy. According to his contention, the questions raised in the present petitions could be raised and relief could be obtained in the pauper suit that one of the respondents had filed after the impugned act was passed. The counsel’s argument was based on the premise that, since an alternative legal forum existed, the constitutional petition was unnecessary. The Court, however, observed that this line of reasoning overlooked the fact that the present petitions were filed under article 32 of the Constitution, a right that is itself guaranteed. In Rashid Ahmed v. Municipal Board, Kairana (1) this Court had rejected a similar submission made by the Advocate-General of Uttar Pradesh, who contended that because an adequate legal remedy existed by way of appeal, the Court should not grant any prerogative writ such as mandamus or certiorari. The Court in that decision stated that while the existence of an adequate legal remedy may be considered when granting writs, the powers conferred by article 32 are far broader and are not confined to the issuance of prerogative writs alone. The Court further explained that, although the existence of an alternative remedy may be relevant to a High Court when deciding whether to issue a prerogative writ under article 226, the same consideration cannot be used by this Court to refuse to entertain a petition under article 32. The right to move this Court for enforcement of the fundamental rights guaranteed by Part III of the Constitution is itself a guaranteed right, and the Court has repeatedly affirmed that it is the protector and guarantor of those rights. Accordingly, in Romesh Thappar v. The State of Madras (2) this Court held that the mere existence of an adequate alternative legal remedy could not, by itself, constitute a sufficient ground for dismissing a petition under article 32 when a fundamental right and an alleged breach—whether actual or threatened—are prima facie established in the petition.

The second line of argument advanced by the counsel asserted that a violation of the right to property by a private individual did not fall within the ambit of article 19(1)(f) or article 31(1) of the Constitution. Consequently, he maintained that a person whose property right was infringed by a private party must seek redress through ordinary law rather than by invoking article 32. To support this proposition, the counsel relied on the decision of this Court in P. D. Shamdasani v. Central Bank of India Ltd. (1). In that case the respondent bank, exercising a lien right under its articles of association, sold certain shares belonging to the petitioner. The petitioner subsequently instituted proceedings in the High Court challenging the bank’s right to effect the sale. After a protracted litigation, the High Court dismissed the petitions, and the petitioner later filed a suit against the bank contesting the validity of the share sale. The suit was rejected under Order 7, rule 11(d) of the Code of Civil Procedure as being time-barred. The petitioner then turned to article 32 of the Constitution, seeking relief against all adverse orders that had been passed. The counsel’s reliance on the Shamdasani decision was intended to demonstrate that disputes between private parties concerning property rights should be resolved through ordinary civil remedies and not through constitutional writ jurisdiction. The Court, however, considered this argument in the context of the broader principle that article 32 provides a direct remedy for the enforcement of fundamental rights, irrespective of whether the alleged infringement originates from a private or public actor.

The counsel argued that when a private individual infringes a person’s right to property, the aggrieved party must seek relief through ordinary law and not by filing an application under Article 32. To support this view, the counsel cited the Supreme Court’s decision in P. D. Shamdasani v. Central Bank of India Ltd. (1). In that case the bank, exercising its lien right under its articles of association, sold certain shares that belonged to the petitioner. The petitioner subsequently commenced a series of proceedings in the High Court challenging the bank’s authority to sell those shares. After a considerable period, all of those proceedings were dismissed, and the petitioner filed a suit in the trial court contesting the validity of the bank’s sale. The trial court rejected the suit under Order 7, Rule 11(d) of the Code of Civil Procedure, holding that the claim was barred by limitation. Following that rejection, the petitioner lodged an application under Article 32 of the Constitution, asking that all adverse orders issued in the earlier proceedings be set aside and that the High Court be directed to list the suit as undefended, pronounce judgment against the bank, or pass any other order it deemed appropriate in relation to the suit. It is important to note that the petitioner in that case had no grievance against the State as defined in Article 12, and his petition (1)[1952] S.C.R. 391 was not predicated on an allegation that his fundamental rights under Article 19(1)(f) or Article 31(1) had been violated by any act of the State or by any authority deriving its power from the State. The present matter, however, differs entirely because the core complaint of the principal petitioner and the other claimants, who assert title derived from him, is directed specifically against the impugned Act enacted by the Madras Legislature, which falls within the meaning of “State” under Article 12. Consequently, the petitions presently before this Court are primarily against the action of the State, and respondents numbered two to seventeen have been joined because they seek to deny the rights that the impugned Act confers upon the petitioner. In fact, through various suits and public notices, those respondents have actively asserted the rights granted to them by the same Act. Under these circumstances the grievance of the petitioners is unmistakably against State action, and, by virtue of the definition of “State” in Article 12, that includes the Madras Legislature. Thus it cannot be said that the matters before the Court involve merely a private dispute between individuals unrelated to any State action. The disputes are clearly between the petitioners on the one side and the State, together with persons claiming rights under the State or under a law made by the State, on the other side. The common thread of the petitions is that the contested Act affects the petitioners’ entitlement to hold and enjoy the properties as sthanam properties.

The dispute between the petitioners and the respondents centered on whether the impugned Act interfered with the petitioners’ right to hold and enjoy their properties as sthanam properties. The petitioners maintained that the enactment was void, whereas the respondents argued that the law was valid and enforceable. In the Court’s view, these petitions filed under Article 32 of the Constitution were not controlled by the precedent set in P. D. Shamdasani’s case (1952 S.C.R. 391). Consequently, the Court found no justification for preventing the petitioners from exercising their constitutional right to approach this Court for relief against any violation of their fundamental rights.

The third argument raised in support of a preliminary point asserted that a petition under Article 32 could not be entertained until the State had either taken action or threatened to take action under the impugned law that, if permitted, would infringe the petitioners’ fundamental rights. The Court observed that earlier statutes abolishing estates were designed to require a subsequent administrative step by the State—typically the issuance of notifications—to vest the estates in the State and thereby deprive the proprietors of their fundamental right to hold and enjoy their estates. Under those earlier statutes, an overt act by the State was necessary before the owners were actually divested of title, interest, and enjoyment. In such circumstances, owners could invoke the jurisdiction of this Court under Article 32 when the State performed or threatened the requisite overt act.

However, the Court recognised that an enactment might, by its very terms, instantly remove or curtail a person’s fundamental rights upon coming into force, without any further overt act by the State. The impugned Act was alleged to be such a statute. In that situation, the infringement of the fundamental right occurred immediately at the moment of the enactment’s passage, and therefore the affected person should be entitled to seek the constitutional remedy under Article 32 without delay. To deny a person whose fundamental right has been compromised solely by the operation of a statute the right to approach this Court would amount to denying the very constitutional remedy that is itself a fundamental right. The Court noted that existing decisions of this Court did not compel such a denial.

The Court also referred to the decision in State of Bombay v. United Motors (India) Limited (1953 S.C.R. 1069). In that case, the petitioners filed an application before the High Court on 3 November 1952 under Article 226, challenging the validity of the Bombay Sales Tax Act, 1952, which had come into force on 1 November 1952. At the time of the petition, no notice had been issued, no assessment proceedings had commenced, and no demand for tax payment had been made against the petitioners under the impugned Act.

The Court observed that in the earlier petition no tax had been demanded or collected under the challenged legislation. It pointed out that one of the grounds of attack in that petition was the statutory requirement that dealers, under threat of penalty, must apply for registration in certain situations and obtain a licence in other situations as a condition for carrying on their business. The petitioners contended that this requirement, standing alone, infringed their fundamental right to practise any trade, business or profession guaranteed by Article 19(1)(g) of the Constitution. Consequently, the Court held that there could be no objection to the maintainability of the petition on that ground.

The Court then referred to its own decision in Himmatlal Harilal Mehta v. State of Madhya Pradesh. In that case, after cotton was declared liable to sales tax on 11 April 1949 under the Central Provinces and Berar Sales Tax Act, 1947, the appellant began paying the tax on his purchases and continued to do so until 31 December 1950. Subsequently, he was advised that his transactions in Madhya Pradesh did not constitute “sales” within that State and therefore he could not be liable to pay sales tax there. Acting on that advice, the appellant refused to pay tax on purchases made in the quarter ending 31 March 1951. Anticipating that the State might attempt to compel tax payment without legal authority, the appellant filed an application before the High Court of Nagpur under Article 226 of the Constitution, seeking a writ or writs that would protect him from the operation and enforcement of the impugned Act.

The High Court refused to grant any writ and dismissed the petition. It reasoned that a mandamus order could only compel a public authority to do or refrain from doing a specific act, that such an order was rarely anticipatory, and that it had never been issued where the authority’s action depended on some act of the petitioner. Moreover, the Court noted that the appellant had not filed any return and that no demand for tax could be made against him.

Aggrieved by the High Court’s decision, the petitioner appealed to this Court. The apex Court held that the State’s threat to recover tax from the assessee by employing the coercive machinery of the impugned Act, without any statutory authority, constituted a sufficient infringement of the petitioner’s fundamental right. This infringement entitled the petitioner to seek relief under Article 226 of the Constitution. The Court also observed that the challenged Act expressly imposed on all dealers the duty to submit returns and thereby restricted their fundamental right to carry on business, as guaranteed by Article 19(1)(g). Finally, the Court noted that the present matter involved a petitioner who was the Kavalappara Moopil Nair, a sthanee possessing certain sthanams, and that the facts of the present case rested on a considerably stronger foundation.

The petitioners who filed Petitions Nos. 40 and 41 of 1956 derive their titles from the sthanee petitioner. They contend that the sthanee petitioner possessed an absolute entitlement to every property attached to all of the sthanams and that respondents numbered two through seventeen possessed no right, title, or interest in any of those sthanam properties. The petitioners further state that, immediately after the impugned Act was enacted, the Madras Marumakkathayam Act of 1932 became applicable to their sthanams, thereby subjecting the petitioners’ properties to the obligations and liabilities imposed by that earlier legislation. By virtue of the impugned Act, the sthanee petitioner was demoted from his status as a sthanee to that of a Karnavan and manager. Consequently, the sthanam properties were converted into tarwad properties, and respondents two through seventeen automatically acquired a share in those properties alongside the petitioners. According to the petitioners, the statutory operation of the impugned Act itself, without any further act, took away or abridged the right, title, or interest that the petitioners claimed in the sthanam properties, and it vested an interest in those properties in respondents two through seventeen as members of the tarwad. The respondents have since asserted those rights, issued public notices on that basis, and instituted a suit relying on the rights created by the impugned Act. No additional step, the petitioners argue, is required to infringe their right to the sthanam properties. While it is true that the sthanee petitioner and others deriving title from him remain in possession of the physical properties, the law no longer recognises them as holding the sthanee’s right, and they cannot lawfully claim rent from the tenants as sthanee or as persons deriving title from the sthanee.

In view of the wording of section 2 of the impugned Act and its effect, the petitioners maintain that their fundamental right to hold and dispose of the sthanam properties has been injured by the legislative action of the State as defined in Article 12 of the Constitution. Accordingly, they assert that they are prima facie entitled to invoke the fundamental remedy provided under Article 32. The next argument raised against the maintainability of the petitions is that the impugned Act is merely declaratory legislation and does not require any action by the State or any other person; therefore, none of the traditional prerogative writs can provide an adequate or appropriate remedy for a person whose fundamental right has been violated solely by the passage of the Act. The petitioners contend that a person challenging the validity of such an enactment must file an ordinary suit in a court of competent jurisdiction to obtain a declaration that the law is void and therefore cannot affect his right. In such a suit, the plaintiff may also seek consequential reliefs such as injunctions, but cannot rely on the remedy under Article 32. The contention is that a proceeding under Article 32 cannot be converted into or treated as a declaratory suit under section 42 of the Specific Relief Act.

In a suit that seeks a declaration that a statute is void, the plaintiff may also ask for ancillary relief such as an injunction, but the plaintiff cannot invoke the remedy provided by Article 32 of the Constitution. The argument advanced by the petitioners is that a proceeding filed under Article 32 cannot be transformed into, nor treated as, a declaratory suit filed under section 42 of the Specific Relief Act. To support this contention, the petitioners relied on a passage from the judgment of Mukherjea, J., as then addressed in the case of Chiranjit Lal Chowdhuri v. The Union of India (1). In that judgment Mukherjea, J. observed that the language of Article 32 indicates that its sole purpose is the enforcement of the fundamental rights guaranteed by the Constitution, and consequently a proceeding under Article 32 has no real affinity with what is known as a declaratory suit. The petitioners highlighted this observation to argue that the petition filed under Article 32 should not be equated with a suit under the Specific Relief Act.

However, the same judgment later qualified that observation by stating that Article 32 affords the Court very wide discretion in fashioning writs to meet the exigencies of particular cases, and that an application by a petitioner cannot be dismissed merely because the appropriate writ or direction has not been expressly prayed for. It was noted that, although in the Chakhranjit Lal Chowdhuri case the petitioner also sought, inter alia, a declaration that the impugned Act was void under Article 13, the petition was not dismissed on that ground. The proposition articulated by Mukherjea, J. aligns with the earlier decision of this Court in Rashid Ahmed v. Municipal Board, Kairana (1), where the Court also recognized that the powers conferred by Article 32 are considerably broader than merely authorising the issuance of prerogative writs. The Court’s reasoning does not stop there. In T. C. Basappa v. T. Nagappa (2), Mukherjea, J. reiterated that the language of Articles 32 and 226 of the Constitution is wide-ranging, granting the Supreme Court and all High Courts the authority to issue orders, writs or directions—including writs of habeas corpus, mandamus, quo warranto, prohibition and certiorari—as may be necessary for the enforcement of fundamental rights, and for High Courts, for other purposes as well. The judgment emphasized that, given the express provisions of the Constitution, it is unnecessary to revert to the early history or procedural technicalities of English writs, nor to feel constrained by any differences or changes of opinion expressed in particular English cases. This broader interpretation was also reflected in Ebrahim Vazir Mayat v. The State of Bombay (1), where the majority of the Court made a declaration that a statutory provision was void.

The Court explained that, after the preceding discussion, it declared Section 7 of the Act to be void under Article 31(1) to the extent that it conflicted with the fundamental right of an Indian citizen guaranteed by Article 19(1)(e) of the Constitution. The Court added that the declaration would become operative only after proof was produced that the appellants were indeed citizens of India. Consequently, the matter was ordered to be remitted to the High Court for a determination on the citizenship question. The High Court was authorized either to decide the question itself or, if it preferred, to refer the issue to a District Judge for a finding. This remand arose from an appeal that had originated in the High Court, and there was no difficulty in sending the case back for a factual finding on that issue. It is important to note that the Supreme Court, in that earlier decision, expressly declared Section 7 of the Act to be void. The Court also recalled the earlier case of Maharaj Umeg Singh v. State of Bombay, where, on an application under Article 32, the petitioner was directed to institute a regular suit in a competent court. However, after reviewing the authorities, the Court held that the powers conferred by Article 32 are sufficiently wide to permit a declaratory order when such relief is appropriate for the aggrieved party. The present matter, the Court observed, fits this category if the challenged Act, by its terms alone, has taken away or abridged the petitioners’ right under Article 19(1)(f) and such infringement cannot be justified. Assuming the petitioners’ contentions are well-founded—an issue not yet decided—the appropriate relief would be a declaration that the impugned Act is invalid. In addition, the Court would grant an injunction restraining the respondents, particularly respondents 2 to 17, from asserting any rights under the declared-void enactment. The Court emphasized that, under Article 32, it must in suitable cases exercise discretion, as held in (1) [1954] S.C.R. 933, 941- and (2) [1955] 2 S.C.R. 164, and fashion a writ or order that meets the specific exigencies created by the legislation under review. In any suit seeking a declaration that the petitioners’ titles are protected because the Act has been voided, respondents 2 to 17 would necessarily be parties, as they have an interest in denying those titles. Accordingly, the Court found no reason why, in an application under Article 32 where both declaration and injunction are proper remedies, respondents 2 to 17 could not be impleaded as parties. In the Court’s opinion, therefore, the argument advanced by counsel on this point possessed no substantive merit. The last point urged in support of the plea.

The Court observed that the contention regarding the non-maintainability of the present applications rested on the proposition that, on a petition filed under Article 32, the Court could not commence an inquiry into disputed questions of fact. The argument was set out in that manner. In the instant case the petitioners alleged, among other things, that the impugned Act had deprived them of the fundamental right to equal protection of the law and equality before the law guaranteed by Article 14 of the Constitution. They complained that they had been discriminated against because the Act singled out them and the lands they held, referred to as sthanams, for hostile treatment. The petitioners further asserted that no other sthanam fell within the scope of the enactment and that they and the sthanams they possessed were the sole objects against which the legislation was directed. The respondents, by contrast, maintained that the language of section 2 of the Act was broad and general, and that the statute applied to all sthanams to which one or more of the conditions specified in that section might be applicable. They insisted that, on a petition under Article 32, the Court could not consider any extraneous evidence but must decide the issue solely on the terms of the enactment, and that, in any event, the Court could not delve into disputed factual questions as to whether other sthanees or sthanams similar to those of the petitioners existed. In support of this position, Shri Purshottam Tricumdas referred to several decisions in which certain High Courts had refused to entertain applications under Article 226 involving disputed questions of fact, directing the petitioners instead to ordinary suits in courts of competent jurisdiction. The Court noted that it was not called upon on this occasion to discuss or pronounce on the jurisdiction and power of the High Courts to entertain such Article 226 applications, and therefore confined its observations to the immediate problem before it, namely the limits of the jurisdiction and power of this Court when acting under Article 32 of the Constitution. Shri Purshottam Tricumdas conceded that the petitioners possessed the fundamental right to approach the Court for relief against infringement of their fundamental right. He further stated that the petitioners had exercised that fundamental right but that the right did not extend beyond that exercise; in other words, he argued that no one possessed a fundamental right obligating the Court to entertain the petition or to decide it when disputed questions of fact arose. The Court disagreed with that approach. It observed that clause (2) of Article 32 confers upon the Court the power to issue directions, orders, or writs of the various kinds mentioned therein, and that the Court may hold that a particular writ sought is appropriate or not, or may find that the petitioner has …

The Court observed that the petitioners had not shown the existence of any fundamental right nor any violation of such a right, and therefore the petition could be dismissed. Nevertheless, the Court emphasized that in both circumstances it examined the petition on its merits rather than rejecting it outright. The Court rejected the view that, merely because an application under Article 32 raised disputed questions of fact, the Court could refuse to entertain it or could reject it on any other ground. Accepting the argument presented by the learned counsel would have meant abandoning the Court’s responsibility as the guardian and protector of fundamental rights. While the Court recognised that insisting on hearing every Article 32 petition on its merits might encourage litigants to prefer petitioning the Court rather than instituting a regular suit, the Court held that this practical consideration could not justify denying a person the right to approach the Court for enforcement of a fundamental right that appeared on its face to have been infringed.

The Court further explained that questions of fact can often be resolved on the basis of affidavits. It cited the case of Chiranjitlal Chowdhuri, wherein the Court did not dismiss the petition at the threshold on the ground that it required determination of disputed factual issues concerning the guilt of other companies. Instead, the Court examined the factual material contained in the affidavits and held, among other things, that the petitioner had failed to discharge the burden of proving a denial of equal protection of the laws. That decision was a clear adjudication on the merits and differed fundamentally from a refusal to entertain the petition. In the case of Kathi Raning Rawat v. State of Saurashtra, the Court adjourned the application to allow the respondent to present evidence before the Court in the form of an affidavit. The respondent’s affidavit set out detailed facts and statistics about a rise in looting, robbery, dacoity, nose-cutting and murder by roaming dacoit gangs in certain districts, supporting the State’s claim that security and public peace were jeopardised and that it was impossible to prosecute the offences swiftly in separate courts of law. The Court indicated that it had no difficulty in dealing with the application on the evidence presented by the affidavit and in upholding the validity of the Act that was challenged. That, too, was a decision on the merits even though there were disputed factual questions concerning the circumstances under which the impugned Act had been enacted. The Court also referred to the case of Ramkrishna Dalmia v. Justice S. R. Tendolkar, where the respondent State relied on an affidavit of the Principal Secretary to the Finance Ministry that set out, in detail, the circumstances leading to the issuance of the questioned notification.

The Court considered the issue of the impugned notification together with the matters recited in the earlier reported cases (1) [1950] S.C.R. 869, 900, (2) [1952] S.C.R. 435, and (3) [1959] S.C.R. 279, as well as the several reports referred to in the affidavit of the Principal Secretary. Counsel for the petitioners raised an objection that was identical to one previously taken in the earlier case. They argued that no reference could be made to any extraneous evidence and that the basis for classification of the petitioners and their companies had to appear on the face of the notification itself, and that the Court should not be required to examine disputed questions of fact. The Court rejected that objection and held that there was no impediment to considering the matters placed before it by the Principal Secretary’s affidavit in order to determine whether a valid basis existed for treating the petitioners and their companies as a separate class. As the Court had already indicated, questions of fact can often be decided on the basis of affidavits. If the petition and the supporting affidavits are not convincing and the Court is not satisfied that the petitioner has established a violation of a fundamental right, the petition may be dismissed on the ground that the petitioner has failed to discharge the onus placed upon him. In appropriate cases the Court may, however, give the parties an opportunity to prove their case further by permitting additional affidavits, by appointing a commissioner, or even by directing that the application be tried on evidence, a procedure that has often been adopted by the High Courts of Bombay and Calcutta, or by any other suitable procedure. Such occasions are rare, and the Court held that rarity of such cases could not be taken as a cogent reason for refusing to entertain a petition under Article 32 on the ground that it involved disputed questions of fact. Accordingly, the Court concluded that none of the points urged by counsel for the respondents in support of the objection to the maintainability of the applications could be sustained. The applications therefore had to be heard on their merits, and the Court made an order to that effect.

The respondents, who were represented by Shri Purshottam Tricumdas, were ordered to pay one set of costs of the hearing of this preliminary objection to the petitioners. Justice Wanchoo then stated that he had read the judgment delivered by the Chief Justice, with which his fellow judges concurred, and that he regarded his brethren with the highest respect. He observed that, had the applications been based solely on the alleged infringement of Article 14 of the Constitution, he would have dismissed them as not maintainable, and he did not feel it necessary to elaborate his reasons further in this case. He added that where the law in question is general in its terms and there is no question of its direct enforcement by the State in the form of licences, notices, returns, or similar measures that result in wholesale abuse of its provisions, the Court would not permit an applicant under Article 32 to introduce evidence showing that the law was intended to affect him alone. He expressed doubts about the maintainability of a petition under Article 32 that challenges a general law affecting fundamental rights guaranteed by Article 19(1)(f) when the law contains no specific provision for direct enforcement, but he chose not to press those doubts to the point of dissent and therefore agreed with the proposed order, overruling the preliminary objection.

The Court explained that when the State enforces a statute through mechanisms such as the granting of licences, the issuance of notices, the requirement of filing returns, and similar administrative actions, the effect may be a widespread misuse of the statutory provisions. In such circumstances, the Court stated that it would not allow a person who invokes Article 32 of the Constitution to introduce evidence with the purpose of showing that the legislation was intended to affect only that individual. The Court further noted that the petitioners also claimed that their fundamental right under Article 19(1)(f) of the Constitution had been infringed. On this point, the Court expressed uncertainty as to whether a petition under Article 32 that challenges a general law of this nature—law that potentially touches one or another of the rights protected by Article 19—can be entertained when the statute does not contain any specific clause that authorises the State to enforce its provisions directly by the means previously described, and when the petitioner’s grievance is based merely on a fear that he might be affected by the law in some future situation. Despite these doubts, the judge indicated that he would not develop the doubts into a separate dissenting opinion. Consequently, he agreed with the proposed order of the majority. The Court therefore overruled the preliminary objection raised against the applications.