433 of 1955 and 40 41 of 1956
Petitions under Article 32 of the Constitution of India for enforcement of Fundamental Rights
MC Setalvad Attorney General for India M K Nambiyar J B Dadachanji section 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
Purshottam Tricumdas and M R Krishna Pillai for respondent No 12 in Petitions Nos 40 and 41 of 1956
KR 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
AV 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 article 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 section 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 section 42 of the said Act for registration of their family as an impartible tarwad
In spite of the objection raised by the sthanee petitioner the SubCollector ordered the registration of the Kavalappara tarwad as impartible
The sthanee petitioner applied to the High Court of Madras for the issue of a writ to 321 quash the order of the Sub Collector but the High Court declined to do so on the ground that the sthanee petitioner had no real grievance as the said order did not specify any particular property as impartible property
While this decision served the purpose of the sthanee petitioner it completely frustrated the object of respondents 10 to 17
On April 10 1934 therefore respondents 10 to 17 filed O section 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 ie 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 section 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 vs Kochunni 1
The defendant ie 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 section 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 ILR
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 423000 as arrears of maintenance and Rs 44000 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 ie the sthanee petitioner to deposit the amount of the maintenance into court which eventually came up to this Court by special leave but to which it is not necessary to refer in detail
During the pendency of that paper suit the sthanee petitioner on August 3 1955 executed two deeds of gift one in respect of the Palghat properties in favour of his wife and two daughters who are the petitioners in
Petition No 40 of 1956 and the second in respect of the Cochin properties in favour of his son who is the petitioner in Petition No 41 of 1956
Meanwhile respondents 2 to 17 renewed their efforts to secure legislation for the reversal of the decree of the Privy Council and eventually on August 8 1955 procured a private member of the Madras Legislative Assembly to introduce a Bill L A Bill No 12 of 1955 intituled  The Madras Marumakkathayam Removal of Doubts Bill 1955  with only two clauses on the allegation set forth in the statement of objects and reasons appended to the Bill that certain decisions of courts of law had departed from the age old customary law of Marumakkathayees with regard to 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 bthe 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 cthere had at any time been a vacancy caused by there being no male member of the tarwad eligible to succeed to the sthanam shall be deemed to be and shall be deemed always to have been a Marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which the provisions of the Madras Marumakkathayam Act 1932 Madras Act XXII of 1933 shall apply
Explanation All words and expressions used in this Act shall bear the same meaning as in the Madras 324 Marumakkathayam Act 1932 Madras Act XXII of 1933
 Almost immediately after the publication of the impugned Act in the gazette respondents 2 to 17 published notices in  Mathrubumi  a Malayalam daily paper with large circulation in Malabar Cochin and Travancore to the effect that by reason of the passing of the impugned Act Kavalappara estate had become their tarwad properties and that rents could be paid to the sthanee petitioner only as the Karnavan of the properties and not otherwise
The notices further stated that the donees under the two deeds of gift executed by the sthanee petitioner were not entitled to the properties conveyed to them and should not be paid any rent at all
After the passing of the impugned Act one of the respondents filed another suit also in forma pauperis in the same court
It is also alleged by the petitioners that respondents 2 to 17 are contemplating the filing of yet another suit for partition taking advantage of the provisions of the impugned Act
It was in these circumstances detailed above that the Kavalappara Moopil Nair ie the sthanee petitioner on December 12 1955 filed the present petition No 443 of 1955 under article 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 article 32 of the Constitution which is itself a guaranteed right
In Rashid Ahmed vs 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 article 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 article 226 of the Constitution as to which we say nothing now this Court cannot on a similar ground decline to entertain a petition under article 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 vs The State of Madras 2 that under the Constitution this Court is constituted the protector and guarantor of fundamental rights and it cannot consistently with the responsibility so laid upon it 1  2  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 article 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 article 191f or article 311 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 article 32
In support of this part of his argument learned counsel relies on the decision of this Court in P D Shamdasani vs 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 11d of the Code of Civil Procedure as barred by limitation
Thereupon the petitioner filed an application under article 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 article 12 of the Constitution and his petition 11952 SCR 391
327 was not founded on the allegation that his fundamental right under article 191f or article 311 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 article 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 article 12 of the Constitution includes the Madras Legislature and it cannot certainly be said that the subject matters of the present petitions comprise disputes between two sets of private individuals unconnected with any 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 article 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
11952 SCR 391 328 The third argument in support of the preliminary point is that an application under article 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 article 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 article 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 article 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 vs United Motors India Limited 1 the petitioners applied to the High Court on November 3 1952 under article 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  329 been issued no assessment proceeding had been started and no demand had been made on the petitioners for the payment of any tax under the impugned Act
It should be noted that in that petition one of the grounds of attack was that the Act required the dealers on pain of penalty to apply for registration in some cases and to obtain a license in some other cases as a condition for the carrying on of their business which requirement without anything more was said to have infringed the fundamental rights of the petitioners under article 191g 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 vs 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 article 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  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 article 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 article 191 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 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 section 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 article 12 of the Constitution
In the premises the petitioners are prima facie entitled to seek their fundamental remedy under article 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 article 32
In short the argument is that the proceeding under article 32 cannot be converted into or equated with a declaratory suit under section 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 vs The Union of India1   As regards the other point it would appear from 11950 SCR 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 article 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 vs Municipal Board Kairana 1
The passage from our judgment in that case which has already been quoted above also acknowledges that the powers given to this Court by article 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 vs 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  2   256 333 In Ebrahim Vazir Mayat vs 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 311 in so far as it conflicts which the fundamental right of a citizen of India under article 191 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 section 7 of the Act was void
We are not unmindful of the fact that in the case of Maharaj Umeg Singh vs The State of Bombay2 which came up before this Court on an application under article 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 article 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 article 191 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 article 32 we must in appropriate cases exercise our discretion and 1   941 2  334 frame our writ or order to suit the exigencies of this case brought about by the alleged nature of the enactment we are considering
In a suit for a declaration of their titles on the impugned Act being declared void respondents 2 to 17 will certainly be necessary parties as persons interested to deny the petitioners  title
We see no reason why in an application under article 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 article 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 article 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 section 2 is wide and general and the Act applies to all sthanams to which one or more of the conditions specified in section 2 may be applicable and that this Court cannot on an application under article 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 article 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 article 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 article 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 article 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 article 32 this Court may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground
If we were to accede to the aforesaid contention of learned counsel we would be failing in our duty as the custodian and protector of the fundamental rights
We are not unmindful of the fact that the view that this Court is bound to entertain a petition under article 32 and to decide the same on merits may encourage litigants to file many petitions under article 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 vs 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 vs Shri Justice section 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   900
2  3  337 recited therein and the several reports referred to in the said affidavit
A similar objection was taken by learned counsel for the petitioners in that case as has now been taken
It was urged that reference could not be made to any extraneous evidence and that the basis of classification must appear on the face of the notification itself and that this Court should not go into disputed questions of fact
This Court overruled that objection and held that there could be no objection to the matters brought to the notice of the Court by the affidavit of the Principal Secretary being taken into consideration in order to ascertain whether there was any valid basis for treating the petitioners and their companies as a class by themselves
As we have already said it is possible very often to decide questions of fact on affidavits
If the petition and the affidavits in support thereof are not convincing and the court is not satisfied that the petitioner has established his fundamental right or any breach thereof the Court may dismiss the petition on the ground that the petitioner has not discharged the onus that lay on him
The court may in some appropriate cases be inclined to give an opportunity to the parties to establish their respective cases by filing further affidavits or by issuing a commission or even by setting the application down for trial on evidence as has often been done on the original sides of the High Courts of Bombay and Calcutta or by adopting some other appropriate procedure
Such occasions will be rare indeed and such rare cases should not in our opinion be regarded as a cogent reason for refusing to entertain the petition under article 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 article 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 article 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 article 191f
As to that I have doubts whether an application under article 32 challenging a general law of this kind which affects one or other
of the fundamental rights guaranteed under article 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


Summary:
The respondent in the appeal after due selection by the State Public Service Commission was appointed in 1965 as a Superintendent in a Deaf Mute and Blind School
He was thereafter promoted and posted as Deputy Director and in 1989 he was further promoted to the rank of Joint Director in the Social Welfare Department
He completed the age of 58 years in January 1991 when according to the decision of the appellant he had to retire
According to the Rules FR 56 Sub Rule 1 a the age of retirement in the department was 58 years excepting for teachers who were to continue in service till 60
The respondent assailed the order of retirement before the State Administrative Tribunal relying upon the Explanation to the Rule which allowed his claim to continue in service upto the age of 60 years and held that he cannot be retired at 58 years
In the State s appeal to this Court it was contended that the post of Superintendent in Deaf Mute and Blind School to which the respondent was initially appointed in 1965 was not a teaching post  and he could not therefore claim the benefit of the Explanation to the Rule
Allowing the appeal this Court HELD 1
The parties to the appeal have referred to and relied upon the advertisement No 91965 issued by the State Public Service Commission inviting applications for appointment to the posts of Superintendent Deaf Mute and Blind School
Paragraph 3 thereof mentions the duties attached to the post and when examined closely indicate that they were supervisory in nature and not teaching
The Explanation to the Rule therefore does not come to the aid of the respondent and he was therefore rightly retired on 3111992
354 G 355 D 2
The Original Application filed by the respondent before the State Administrative Tribunal is therefore dismissed
In case the respondent was paid for performing any duty after the date of his retirement he shall not be asked to refund the same
355 E F