on No 217 of 1956
Petition under Article 32 of the Constitution of India for enforcement of Fundamental rights
Pandit Nanak Chand for the petitioners
I N Shroff for respondent No 1
1960 February 26
The Judgment of the Court was delivered by SHAH J
This is a petition filed by Sahibzada Saiyed Muhammed Amirabbas Abbasi who will hereinafter be referred to as the first petitioner on behalf of himself and as the natural guardian of his two minor children Kamal Abbas and Jehanzeb Bano petitioners Nos 2 and 3 against the State of Madhya Bharat now the State of Madhya Pradesh and three other respondents for an appropriate writ or writs of Habeas Corpus Mandamus Certiorari Prohibition and any other writ direction or order directing the State of Madhya Bharat immediately to assume charge of the properties of the minor petitioners 2 and 3 and determining the amount of loss sustained by the minors and calling upon the State of Madhya Bharat and the other respondents to compensate the minors for the full value of the property lost due to their negligence in the discharge of their respective duties in failing to protect the minors  properties and calling upon the 4th respondent to produce the minors before this court and directing that the minors be handed over to the custody of some relation who is competent under the Personal Law to have their custody and calling upon the Chief Secretary of the State of Madhya Bharat to furnish full particulars of the trust property released in favour of the 2nd respondent and directing the 1st respondent to produce in this court the box of jewellery entrusted to it with full particulars regarding its custody from March 29 1948 and ascertaining whether the contents have been misappropriated and further ascertaining the loss if any occasioned to the minor petitioners and its quantum and declaring liability of the respondents in that behalf and for further relief which the court may award in the circumstances of the case as just and proper
140 Prima facie the reliefs claimed ate not within the scope of a petition for a writ under article 32 of the Constitution
This court has power under that Article to issue directions orders or writs including writs in the nature of habeas corpus mandamus prohibition quo warranto and certiorari whichever may be appropriate for the enforcement of any of the fundamental rights but by this petition the first petitioner claims on the plea that the respodents have misappropriated or misapplied the property of petitioners 2 and 3 a writ or writs directing that loss sustained by the minors be ascertained and made good and also asks this court to provide for the custody of the minors according to their Personal Law
The facts which give rise to the petition are these The first petitioner married in 1940 one Naiyar Jahan Begam and by her he had two children petitioners 2 and 3
Naiyar Jahan Begam died in the year 1943 and petitioners 2 and 3 were thereafter looked after by Musharraf Jahan Begam mother of Naiyar Jahan Begam
From her father Naiyar Jahan Begam had inherited certain valuable property and from her mother Musharraf Jahan Begam she had received a dowry of substantial value at the time of her marriage
Before she died on March 6 1949 Musharraf Jehan Begam had made a trust in respect of certain property of the benefit of petitioners 2 and 3
The first petitioner had after the death of Naiyar Jehan Begam contracted a second marriage and of that marriage there were three children
During the life of Musharraf Jehan Begam the first petitioner took no interest in petitioners 2 and 3 and at sometime in the year 1948 he migrated to West Pakistan and took up residence in Rawalpindi
After the death of Musharraf Jehan Begam the first petitioner applied to the Madhya Bharat High Court for a writ in the nature of habeas corpus for a direction to produce petitioners 2 and 3 before the court on the allegation that the latter were wrong fully detained The High Court refused to give the direction and ordered that the first petitioner might if so advised apply under the Guardian and Wards Act for appropriate relief
The first petitioner then applied to the 141 court of the District Judge at Ratlam for an order that he be appointed a guardian of the person and property of petitioners 2 and 3
On November 23 1949 the second respondent Sultan Hamid Khan cousin of Musharraf Jehan Begam applied that he be appointed guardian of the person and property of petitioners 2 and 3 and by order dated December 5 1949 the District Court appointed him guardian and rejected the application filed by the first petitioner
Against the order passed by the District Court Ratlam Appeal No 20 of 1950 was filed in the High Court of Madhya Bharat
This appeal was dismissed on March 29 1954
An application for special leave to appeal to this court under Act
136 against that order of the High Court was rejected on November 12 1956
The first petitioner had in the meantime applied to this court under article 32 of the Constitution for the reliefs which have already been set out
To this petition petitioners 2 and 3 were impleaded as party petitioners the first petitioner alleging that he was their natural guardian and next friend
Evidently the first petitioner could not claim to be the next friend of the minor petitioners 2 and 3 a guardian of their person and property having been appointed by the District Court Ratlam unless this court for reasons to be recorded deemed it to be for the welfare of the minors that the first petitioner be permitted to act or be appointed as the case may be vide 0 32 r 4 of the Code of Civil Procedure
The first petitioner did not obtain any order of this court permitting him to act as the next friend of petitioners 2 and 3 notwithstanding the order passed by the District Court appointing respondent No 2 as their guardian
The petition filed by the first petitioner is a somewhat prolix document
The first petitioner claimed that the interest of the second respondent who was appointed a guardian by the District Court was adverse to the interests of the minors and that the latter was in any event unfit to be appointed a guardian of the minors that the second respondent had misappropriated the property of the minors and that he was not looking after the minors and was 142 acting contrary to their interest and that proceedings in the District Court were vitiated on account of partiality and collusion  and by reason of deliberate violation of the order passed by the High Court
The petitioner also claimed that the State of Madhya Bharat was bound to take steps to protect the entire property of the minor petitioners 2 and 3 but the first respondent had neglected to do so and had thereby rendered itself liable to make good the loss
On these allegations the first petitioner submitted that the minor petitioners were deprived of the equal protection of the laws in force including the Personal Law and were accordingly discriminated against and their property was by reason of such discrimination in serious danger of being wasted or mis appropriated
He also submitted that he could not be denied his rights under the Personal Law governing the minors as their natural guardian merely because he had acquired a foreign domicile
Exercising jurisdiction under article 32 of the Constitution this court may grant relief for enforcement only of the rights conferred by Part III of the Constitution
The alleged right of the first petitioner to guardianship of his minor children under the Personal Law is not one of the fundamental rights guaranteed to him by the Constitution nor by appointing respondent No 2 as the guardian of the minors under the Guardian and Wards Act is discrimination practised against the minors
The second respondent was appointed guardian of the minors by order of a competent court
and denial of equality before the law or the equal protection of the laws can be claimed against executive action or legislative process but not against the decision of a competent tribunal
The remedy of a person aggrieved by the decision of a competent judicial tribunal is to approach for redress a superior tribunal if there be one
In the present case against the order of the District Court appointing the second respondent the guardian of the person and property of the minors an appeal was preferred to the High Court and that appeal was dismissed
Even an application for special leave to appeal to this court was rejected and the order of the District Court 143 became final
If since the date on which the order appointing the guardian of the minors events have transpired which necessitate a modification of that order the proper remedy of the first petitioner is to apply to the District Court for relief in that behalf and not to approach this court for a writ under article 32 of the Constitution
This court has rejected the application for special leave to appeal under article 136 and that order cannot be circumvented by resorting to an application for a writ under article 32
Relief under article 32 for enforcement of a right conferred by ch
III can be granted only on proof of that right and in fringement thereof and if by the adjudication by a court of competent jurisdiction the right claimed has been negatived a petition to this court under article 32 of the Constitution for enforcement of that right notwithstanding the adjudication of the civil court cannot be entertained
The relief claimed by the first petitioner for assessing the liability of the respondents on the plea that they have either misappropriated the estate or by negligence caused loss to the estate of the minors may be obtained in a properly constituted suit and not in a petition under article 32 of the Constitution
The property to which the minors are or may be entitled may be ascertained in a proceeding under the Guardian and Wards Act or in a suit in the civil court and not in a petition under article 32 of the Constitution
In our judgment the petition is wholly misconceived and must be dismissed with costs payable by the first petitioner personally
Petition dismissed


Summary:
The respondent firm Harivallabhdas Kalidas was appointed the Managing Agent of Shri Ambika Mills Ltd the appellant in the connected appeal by means of a Managing Agency Agreement the relevant portion of which ran thus 2a The Company shall pay each year to the said Firm either the commission of 5 five per cent on the total sale proceeds of yarn and of all cloth manufactured from cotton 51 silk jute wool waste and other fibres and sold by the company or a commission of three pies per pound avoirdupois on the sale whichever the said Firm choose to take and also a commission of 10 ten per cent on the proceeds of sale of all other materials sold by the Company and 10 ten per cent on the bills of any ginning and pressing factories and on any other work done by the Company
 And by clause 5 it was provided  5 The remuneration payable to the said Firm under clause 2a shall be paid to the said Firm forthwith after the 31st day of December or such other date as the Directors may fix for the closing of the accounts of the Company in each year and after such accounts are passed by the company in General Meeting
 Subsequently at the request of the Managed Company the Managing Agents agreed to charge commission at 3 per cent on sales instead Of 5 per cent for the year ending December 31 1950 and a resolution to that effect was passed by the Managed Company and a formal agreement to that effect was executed
The income tax Authorities however taxed the Managing Agents for two assessment years on the basis that by entering into an agreement with the mills they had voluntarily relinquished certain sums of money as their commission which had accrued to them as income for the purpose of income tax
An appeal was taken to the Income tax Tribunal which held that the agreement between the Managing Agent and the Managed Company to receive remuneration at 3 per cent on the total sale was valid and took effect from January 1 1950 and the questions whether the commission accrued on the proceeds of every single sale or only when the assessee firm exercised its option to charge it on the total sale proceeds or on the weight of the yarn sold and whether the Managing Agents would get their commission after the whole profit was determined at the end of the year were decided in favour of the Managing Agents
The High Court also on a reference made to it at the instance of the Commissioner of Income tax answered the above mentioned question in favour of the Managing Agents
On appeal by the Incomee tax Commissioner by special leave Held that on a proper construction of the agreement it was clear that there was no accrual of commission till the end of the year and that it did not accrue as and when the sales took place
The Managing Agents were to be paid at the end of the year and by agreeing to the modification of the agreement before then they had not voluntarily relinquished any portion of the commission
Commissioner of Income tax Madras vs KRMTT Thiagaraja Chetty and Co   ED Sasoon and Co Ltd vs The Commissioner of Income tax Bombay City 1955 i SCR 313 and Commissioner of Inland Revenue vs Gardner Mountain and D  Ambrumenil Ltd  not applicable