Judgment Case ID: 697

Judgment:
433 of 1955 and 40 41 of 1956. Petitions under Article 32 of the Constitution of India for enforcement of Fundamental Rights. M.C. 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. K.R. Krishnaswami	 for respondents Nos. 11	 13 17 in Petn. No. 443 of 55. Purshottam Tricumdas and K. R. Krishnaswami	 for respondent No. 12 in Petn. No. 443 of 55. A.V. Viswanatha Sastri and M. R. Krishna Pillai	 for Intervener No. 1. Sardar Bahadur	 for Intervener No. 2. M. R. Krishna Pillai	 for Intervener No. 3. 1959. March 4. The Judgment of Das	 C. J.	 Bhagwati	 Sinha and Subba Rao	 JJ.	 was delivered by Das	 C. J. Wanchoo	 J.	 delivered a separate Judgment. DAS	 C. J. The circumstances leading up to the presentation of the above noted three petitions under 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	 i.e.	 the sthanee petitioner	 and that the latter was in management thereof only as the Karnavan and manager of the tarwad. The sthanee petitioner contested the suit asserting that he was the Kavalappara Moopil Nair and as such a sthanee and that the properties belonged to him exclusively and that the plaintiffs (the respondents 10 to 17 herein) had no interest in the suit properties. By his judgment pronounced on February 26	 1938	 the Subordinate Judge dismissed the O. 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	 i.e.	 the sthanee petitioner herein carried the matter to the Privy Council and the Privy Council by its. judgment	 pronounced on July 29	 1947	 reversed the judgment of the High Court and restored the decree of dismissal of the suit passed by the Subordinate Judge. In the meantime in 1946 respondents 10 to 17 had filed a suit (O. 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) I.LR. 41 322 On February 16	 1953	 respondents 10 to 17 took the initiative again and presented a Memorial to the Madras Government asking that legislation be undertaken to reverse the Privy Council decision. The Government apparently did not think fit to take any action on that Memorial. Thereafter a suit was filed in the court of the Subordinate Judge at Ottapalam by respondents 2 to 9 who were then the minor members of the tarwad claiming Rs. 4	23	000 as arrears of maintenance and Rs. 44	000 as yearly maintenance for the future. The suit was filed in forma pauperism There were some interlocutory proceedings in this suit for compelling the defendant (i.e.	 the sthanee petitioner) to deposit the amount of the maintenance into court which eventually came up to this Court by special leave but to which it is not necessary to refer in detail. During the pendency of that paper suit	 the sthanee petitioner	 on August 3	 1955	 executed two deeds of gift	 one in respect of the Palghat properties in favour of his wife and two daughters who are the petitioners in. Petition No. 40 of 1956 and the second in respect of the Cochin properties in favour of his son who is the petitioner in Petition No. 41 of 1956. Meanwhile respondents 2 to 17 renewed their efforts to secure legislation for the reversal of the decree of the Privy Council and eventually on August 8	 1955	 procured a private member of the Madras Legislative Assembly to introduce a Bill (L. A. Bill No. 12 of 1955) intituled " The Madras Marumakkathayam (Removal of Doubts) Bill	 1955 " with only two clauses on the allegation	 set forth in the statement of objects and reasons appended to the Bill	 that certain decisions of courts of law had departed from the age old customary law of Marumakkathayees with regard to stha nams and sthanam properties and that those decisions were the result of a misapprehension of the customary law which governed the Marumakkathayees from ancient times and tended to disrupt the social and economic structure of several ancient Marumakkathayam families in Malabar in that Karnavans of tarwad were encouraged to claim to be sthanees and thus deny the legitimate rights of the members of tarwads 323 with the result that litigation had arisen or were pending. It was said to be necessary	 in the interests of harmony and well being of persons following the Marumakkathayam law	 that the correct position of customary law governing sthanams and sthanam properties should be clearly declared. This Bill came before the Madras Legislative Assembly on August 20	 1955	 and was passed on the same day. The Bill having been placed before the Madras Legislative Council	 the latter passed the same on August 24	 1955. The assent of the President to the Bill was obtained on October 15	 1955	 and the Act intituled "the Madras Murumakkathayam (Removal of Doubts) Act	 1955 " being Madras Act 32 of 1955 and hereinafter referred to as the impugned Act	 was published in the official gazette on October 19	 1955. Section I of the impugned Act is concerned with the short title and its application. Section 2	 which is material for our purposes	 is expressed in the following terms: " 2. Certain kinds of sthanam properties declared to be tarwad properties: Notwithstanding any decision of Court	 any sthanam in respect of which (a) there is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarwad	 or (b)the members of the tarwad have been receiving maintenance from the properties purporting to be sthanam properties as of right	 or in pursuance of a custom or otherwise	 or (c)there had at any time been a vacancy caused by there being no male member of the tarwad eligible to succeed to the sthanam	 shall be deemed to be and shall be deemed always to have been a Marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which the provisions of the Madras Marumakkathayam Act	 1932	 (Madras Act XXII of 1933)	 shall apply. Explanation All words and expressions used in this Act shall bear the same meaning as in the Madras 324 Marumakkathayam Act	 1932 (Madras Act XXII of 1933). " Almost immediately after the publication of the impugned Act in the gazette	 respondents 2 to 17 published notices in " Mathrubumi "	 a Malayalam daily paper with large circulation in Malabar	 Cochin and Travancore	 to the effect that by reason of the passing of the impugned Act	 Kavalappara estate had become their tarwad properties and that rents could be paid to the sthanee petitioner only as the Karnavan of the properties and not otherwise. The notices further stated that the donees under the two deeds of gift executed by the sthanee petitioner were not entitled to the properties conveyed to them and should not be paid any rent at all. After the passing of the impugned Act one of the respondents filed another suit	 also in forma pauperis	 in the same court. It is also alleged by the petitioners that respondents 2 to 17 are contemplating the filing of yet another suit for partition	 taking advantage of the provisions of the impugned Act. It was in these circumstances detailed above that the Kavalappara Moopil Nair	 i.e.	 the sthanee petitioner	 on December 12	 1955	 filed the present petition No. 443 of 1955 under 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 19(1)(f) or article 31(1) and that a person whose right to property is infringed by a private individual must	 therefore	 seek his remedy under the ordinary law and not by way of an application under 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. 11(d) 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 (1)[1952] S.C.R. 391. 327 was not founded on the allegation that his fundamental right under article 19(1)(f) or article 31(1) had been infringed by any action of the State as so defined or by anybody deriving authority from the State. The present position is	 however	 entirely different	 for the gravamen of the complaint of the sthanee petitioner and the other petitioners	 who claim title from him	 is directly against the impugned Act passed by the Madras Legislature	 which is within the expression" State " as defined in 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. (1)[1952] S.C.R. 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 19(1)(g) of the Constitution and no objection could	 therefore	 be taken to the maintainability of the application. Reference may also be made to the decision of this Court in Himmatlal Harilal Mehta 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 19(1) (g). The present case	 however	 stands on a much stronger tooting. The sthanee petitioner is the Kavalappara Moopil Nair and as such holds certain sthanams and the petitioners in Petitions Nos. 40 and 41 of 1956 derive their titles from him. According to the petitioners	 the sthanee petitioner was absolutely entitled to all the properties attached to all the sthanams and respondents 2 to 17 had no right	 title or interest in any of the sthanam properties. Immediately after the passing of the impugned Act	 the Madras Marumakkathayam Act	 1932	 became applicable to the petitioners ' sthanams and the petitioners ' properties became subject to the obligations and liabilities imposed by the last mentioned Act. On the passing of the impugned Act	 the sthanee petitioner immediately became relegated from the status of a sthanee to the status of a Karnavan and manager and the sthanam properties have become the tarwad properties and respondents 2 to 17 have automatically become entitled to a share in those properties along with the petitioners. The right	 title or interest claimed by petitioners in or to their sthanam properties is	 by the operation of the statute itself and without anything further being done	 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 India(1) : " As regards the other point	 it would appear from (1)[1950] S.C.R. 869	 900. 332 the language of article 32 of the Constitution that the sole object of the article is the enforcement of fundamental rights guaranteed by the Constitution. A proceeding under this article cannot really have any affinity to what is known a	; a declaratory suit". But further down on the same page his Lordship said: Any way	 article 32 of the Constitution gives us very wide discretion in the matter of framing our writs to suit the exigencies of particular cases	 and the application of the petitioner cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for ". It should be noted that though in that case the petitioner prayed	 inter alia	 for a declaration that the Act complained of was void under 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 31(1) in so far as it conflicts 'which the fundamental right of a citizen of India under article 19(1) (e) of the Constitution and set it aside. The order will	 however	 operate only upon proof of the fact that the appellants are citizens of India. The case will	 therefore	 go back to the High Court for a finding upon this question. It will be open to the High Court to determine this question itself or refer it to the court of District Judge for a finding ". That was a case of an appeal coming from a High Court and there was no difficulty in remanding the case for a finding	 on an issue	 but the fact to note is that this Court did make a declaration that 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 Bombay(2) 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 19(1) (f) by its own terms and without anything more being done and such infraction cannot be justified. If	 therefore	 the contentions of the petitioners be well founded	 as to which we say nothing at present	 a declaration as to the invalidity of the impugned Act together with the consequential relief by way of injunction restraining the respondents and in particular respondents 2 to 17 from asserting any rights under the enactment so declared void will be the only appropriate reliefs which the petitioners will be entitled to get. Under 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 19(1)(f). 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 petitioner in Petition No. 143 was the Moopil Nair of the Kavalappara sthanam and	 as the sthanee	 claimed to be the sole proprietor of the sthanam properties. The respondents Nos. 2 to 17	 who were the junior members of the Kavalappara tarward or family	 resisted the claim on the ground that the properties were tarward properties and they had rights in them. There was litigation between the parties and ultimately the Privy Council held in favour of the petitioner. The petitioner transferred some of the properties to his wife and two daughters and son and they were the petitioners in the two other petitions. The parties were governed by the Marumakkathayam Law and in 1955 the Madras Legislature	 purporting to remove certain misapprehensions evident in decisions of courts	 passed the Madras Marumakkathayani (Removal of Doubts) Act	 1955 (Act 32 of 1955) which by section 2 provided as follows: " 2. Certain kinds of sthanam properties declared to be tarward properties : Notwithstanding any decision of Court	 any sthanam in respect of which (a)there is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarward	 or (b)the members of the tarwad have been receiving main tenance from the properties purporting to be sthanam properties as of right	 or in pursuance of a custom or otherwise	 or (c)there had at any time been a vacancy caused by there being no male member of the tarwad eligible to succeed to the sthanam	 shall be deemed to be and shall be deemed always to have been a Marumakkathayam tarwad and the properties appertaining to such a sthanam shall be deemed to be and shall be deemed always to have been properties belonging to the tarwad to which the provisions of the Madras Marumakkathayam Act	 1932	 (Madras Act XXII Of 1932)	 shall apply." 317 Immediately after the publication of the Act	 the respondents Nos. 2 to 17	 published notices in the press that by reason of the passing of the Act	 Kavalappara estate had become their tarwad property and that rents could be paid to the sthanee only as the Karnavan of the properties and not otherwise. The notices further stated that the donees under the two deeds of gift executed by the sthanee were not entitled to the properties conveyed to them and should not be paid any rents at all. One of the respondents filed a partition suit and others also contemplated doing the same. The petitioners sought for a writ of mandamus or any other writ or order directing the respondents to forbear from enforcing the impugned Act against the sthanee and the sthanam estate and declaring the Act to be unconstitutional and invalid. Preliminary objection was raised on behalf of some of the respondents as to the maintainability of the petitions and it was contended that (1) the prayer for a writ of mandamus Was not maintainable since there was an adequate remedy in the partition suit filed by one of the respondents ; (2) that violation of right of property by private individuals was not within the purview of article 19(1)(f) or article 31(1) and the remedy was not by way of application under article 32; (3) that no application under article 32 could be maintained until the State had taken or threatened to take any action under the impugned law that would infringe fundamental rights; (4) that the proceeding under article 32 could not be converted into or equated with a declaratory suit under section 42 Of the Specific Relief Act in and (5) that this court could not	 on an application under article 32	 embark upon an enquiry into disputed questions of fact. Held (per Das	 C. J.	 Bhagwati	 Sinha and Subba Rao	 jj.)	 that all the contentions must be negatived and all the preliminary objections must fail. The right to enforce a fundamental right conferred by the Constitution was itself a fundamental right guaranteed by article 32 of the Constitution and this court could not refuse to entertain a petition under that Article simply because the petitioner might have any other adequate	 alternative	 legal remedy. Rashid Ahmed vs Municipal Board	 Kairana	 ; and Romesh Thappar vs The State of Madras	 [1950] S.C.R. 594	 referred to. In the instant cases as the grievance of the petitioners was primarily against the impugned Act passed by the Madras Legislature	 which was a State as defined by article 12 of the Constitution and the dispute was not one between two sets of private individuals but between the petitioners on the one hand and the State and persons claiming under a law made by the State on the other	 article 32 must apply. P.D. Shamdasani vs Central Bank of India Ltd.	 [1952] S.C.R. 391	 distinguished and held inapplicable. Where an enactment such as the impugned Act	 unlike 318 others that contemplated some further action to be taken by the State after the enactment had come into force	 automatically took away or abridged a person 's fundamental rights immediately it came into force	 there was no reason why the aggrieved person should not immediately be entitled to seek the ' remedy under article 32 Of the Constitution. State of Bombay vs United	 Motors (India) Limited	 ; and Himmatlal Harilal Mehta vs The State of Madhya Pradesh	 	 referred to. In view of the language used in section 2 of the impugned Act and its effect	 there could be no doubt that the petitioners could legitimately complain that their fundamental right to hold and dispose of the sthanam properties have been violated by the action of the Legislature. Article 32 of the Constitution conferred wide powers on this Court and such powers were not confined to the issuing of prerogative writs alone. In appropriate cases	 this court had the right in its discretion to frame its writs or orders suitable to the exigencies created by enactments. It was clear on the authorities that this Court could	 where the occasion so required	 make even a declaratory order with consequential relief under article 32 of the Constitution. Chiranjit Lal Chowdhury vs The Union of India	 [1950] S.C.R. goo	 Rashid Ahmed vs Municipal Board	 Kairana	 [1950] S.C.R. 566	 T. C. Basappa vs T. Nagappa	 ; and Ebrahim Vazir Marat vs The State of Bombay	 [1954] S.C.R. 933	 relied on. Maharaj Umeg Singh vs The State Of Bombay	 [1955] 2 S.C.R. 164	 considered. This court would fail in its duty as the custodian and pro tector of the fundamental rights if it were to decline to entertain a petition under article 32 simply because it involved the determination of disputed questions of fact. Clause (2) of article 32 conferred on this court the power to issue directions or orders or writs of various kinds mentioned therein and in dismissing a petition	 it had either to hold that any particular writ asked for was not appropriate to the occasion or that the petitioner had failed to establish a fundamental right or its breach . In either case	 however	 it had to decide the petition on merits. Chiranjit Lal Chowdhuri vs The Union of India	 [1950] S.C.R. 869	Kathi Raning Rawat vs The State of Saurashtra	 ; and Ramkrishna Dalmia vs Shri ' justice section R. Tendolkar; 	 	 referred to. In appropriate cases opportunity might also be given to the parties to establish their cases by further affidavits	 or by issuing a commission or even by setting the application down for trial on evidences. Per Wanchoo	 J. If the petitions were based solely on the infringement of article 14	 there could be no doubt that they would not be maintainable. Even though they were based on the 319 infringement of article 19(1)(f) also	 their maintainability would still be in doubt in the absence of any further provision in the impugned Act for its direct enforcement by the State.