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Case Number

Writ Petn. No. 3.A5/1 of 1951-1952

Disposition

dismissed

Judges

Shrinivasachari
Deshpande
Jaganmohan Reddy, JJ.

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Smart Summary

Structured Summary of the Court Opinion

Factual and Procedural Background

The matter arises from succession proceedings in the Crown Grants Appellate Tribunal known as the Atiyat Committee of Hyderabad State concerning the estate of Muthawar-ul-mulk. Respondent No. 5, Hamza Hussain Khan, applied to the Nazim-e-atiyat to reopen a prior decree (the "Munthakab") granted in 1342F in favour of the petitioners in this writ petition. Although Hamza had been a party to the earlier proceedings, he claimed he was a minor and was outside the Hyderabad State at the time. A Firman of H.E.H. the Nizam issued in 1347F condoned the delay and directed a re-enquiry in the Atiyat Courts Committee.

The Nazim-e-atiyat gave findings in favour of respondents Nos. 5 to 11. Aggrieved petitioners appealed to the Appellate Atiyat Committee, which upheld the Nazim-e-atiyat decision. The petitioners sought a review of the Appellate Committee's order, which was rejected. The petitioners then challenged the Appellate Atiyat Committee's judgment before this Court on multiple grounds, including constitutional objections to the Committee's status after the coming into force of the Constitution of India and the continued binding effect of the Nizam's sanction.

The Division Bench referred several constitutional questions to a Full Bench. When before the Full Bench, some petitioners compromised and withdrew; others (notably petitioners Nos. 6, 7 and 14–17) indicated they would press the petition. A preliminary objection was raised by the respondents that the non-compromising petitioners had not themselves filed appeals before the Atiyat Committee and therefore lacked standing to seek certiorari.

Legal Issues Presented

Whether the Appellate Atiyat Committee could continue to function and pass judgments after the coming into force of the Constitution of India, given that it was not subject to the High Court's superintendence under Article 227.
Whether the Nizam's sanction of the Appellate Atiyat Committee's recommendations continued to be binding after the Constitution (i.e., whether the Nizam had ceased to possess such powers).
Whether rights determined on the administrative side (by the Nizam) could be subject to writ proceedings under the Constitution.
Whether certain petitioners (specifically petitioners Nos. 6, 7 and 14–17 and others who did not personally file appeals) had locus standi to invoke the extraordinary remedy of writ (certiorari) when they had not availed themselves of the statutory appeal remedy before the Atiyat Committee.

Arguments of the Parties

Petitioners' Arguments (as recorded)

The Appellate Atiyat Committee, not being subject to High Court superintendence under Article 227, could not continue to function after the Constitution and its existence/operation was contrary to express constitutional provisions.
Under the pre-Constitution law, appeals from Nazim-e-atiyat lay to the Appellate Atiyat Committee whose recommendations required the Nizam's sanction to become enforceable; after the Constitution the Nizam had ceased to possess such powers so any sanction could not be binding.
If the Nizam's sanction was regarded as administrative, it could not be challenged by writ proceedings; conversely, if rights had been determined administratively then those determinations could not stand after the Constitution.
It was also urged (incidentally) that one of the members of the Appellate court (Shri Govind Rao) was not of ministerial rank as required by the Firman constituting the appellate court, and thus the appellate court was improperly constituted.

Respondents' Arguments (as recorded)

A preliminary objection: the contesting petitioners (Nos. 6, 7 and 14–17) who did not join the compromise had never themselves filed appeals before the Appellate Atiyat Committee against the Nazim-e-atiyat's order; only petitioners Nos. 1, 2 and 3 had filed appeals and these petitioners had compromised and withdrawn. Therefore, the non-appealing petitioners had no right to seek certiorari in this Court.
By failing to file an appeal, the Nazim-e-atiyat's order became final as to those petitioners and they were estopped from contesting it via writ proceedings.
It was additionally argued that some of the contesting petitioners were only sub-sharers under petitioner No. 1, and thus lacked independent rights to invoke writ relief.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McCabe v. Atchison, (1914) 235 US 151	Principle that extraordinary equitable relief requires the complainant's need of it and absence of an adequate remedy at law (one must be personally affected; relief not granted because others might be injured).	The Court quoted the passage and applied its test to hold that the non-compromising petitioners had an adequate remedy by appeal which they did not avail themselves of; hence the first ingredient for Art. 226 relief was missing.
Chiranjitlal v. Union of India, AIR 1951 SC 41	Approval by the Supreme Court of the McCabe principle regarding necessity of personal need and absence of adequate remedy to invoke extraordinary relief.	The Court relied upon the Supreme Court's approval to reinforce the application of the McCabe test to the facts, concluding that the non-appealing petitioners could not invoke Art. 226.
Ramjilal v. I.T. Officer, Mohindargarh, AIR 1951 SC 97	Principle that pending proceedings should be completed according to the law applicable when the rights and liabilities accrued and the proceedings commenced.	The Court relied on this authority to reject the contention that the Appellate Atiyat Committee ceased to have jurisdiction after the Constitution: pending succession proceedings were to be completed under the existing law in force when they commenced.

Court's Reasoning and Analysis

The Court proceeded in two principal strands of analysis: (A) locus standi and remedies; and (B) validity of the Atiyat appellate process after the Constitution.

(A) Locus standi and adequacy of remedy

The Court emphasised the established rule that only a person whose rights are affected may invoke the High Court's jurisdiction under Article 226 to have a tribunal's order set aside for violation of fundamental rights, excess or want of jurisdiction, or similar grounds.
The Court quoted McCabe v. Atchison and noted its approval in Chiranjitlal v. Union of India to articulate the two-fold test for extraordinary relief: the complainant's need for it and the absence of an adequate remedy at law.
Applying that test, the Court found that the contesting petitioners (Nos. 6, 7 and 14–17 and others who did not appeal) had an adequate remedy by way of appeal to the Appellate Atiyat Committee but chose not to use it. Their omission meant the essential requirement for invoking Art. 226 was not satisfied.
Even if some of these petitioners were sub-sharers under petitioner No. 1, that procedural relationship did not, in itself, entitle them to seek writ relief unless they could show they were personally affected. Non-filing of an appeal estopped them from challenging the orders in writ proceedings.
The Court also noted laches or delay as an additional ground justifying rejection of the application by the non-appealing petitioners.

(B) Validity of the Atiyat appellate process post-Constitution

The Court addressed the submission that the Appellate Atiyat Committee lost jurisdiction after the Constitution because it was not subject to High Court superintendence under Article 227, and that the Nizam's sanction could no longer be binding.
The Court referred to the proviso to Section 21(2) of the Jagir Abolition Regulation (as recorded in the opinion) which states that proceedings relating to succession to a jagir that were pending on the date of the Regulation's commencement would be completed according to the existing law.
Relying on the existing legal framework (as it stood when the proceedings commenced)—where the Appellate Atiyat Committee heard appeals from the Nazim-e-atiyat and sent recommendations to H.E.H. the Nizam for sanction—the Court held that such pending proceedings were to be completed under that law.
The Court cited Ramjilal v. I.T. Officer in support of the proposition that pending proceedings are to be governed by the law in force when rights accrued and proceedings commenced, and concluded there was no substance in the argument that completion of the proceedings according to then-existing law was wrong.
Because the Court reached its decision on the locus/standing ground, it declined to decide other constitutional or procedural questions (including the incidental contention regarding the ministerial rank of an appellate member), invoking the principle that courts may rest decisions on a dispositive ground without deciding all raised constitutional issues.

Holding and Implications

Holding: Petition dismissed.

Direct consequences as recorded in the opinion:

The writ petition was dismissed because the contesting petitioners who sought to press the petition had not availed themselves of the adequate statutory remedy of appeal and therefore lacked the necessary entitlement to invoke Article 226.
The respondents were awarded costs to be recovered from the contesting petitioners (recorded in the opinion as "petitioners 8 and 7"), and the advocates' fee was fixed at Rs. 300/-. (The opinion states: "The respondents will have the costs of this petition from the contesting petitioners viz., petitioners 8 and 7. Advocates fee Rs. 300/-.")

Broader implications: The opinion does not announce a novel precedent beyond applying established principles on locus standi, adequacy of remedy, and the treatment of pending proceedings under transitional statutory provisions. The decision's effect, as recorded, is limited to dismissal of the petition and the costs order.

Additional Notes from the Opinion

A concurring opinion by Deshpande, J. agreed with the reasoning that the writ petition was not maintainable for the same reasons: several petitioners had compromised and those who had not compromised had failed to file appeals against the original Nazim-e-atiyat judgment and thus could not invoke Article 226.

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Waheed Munwar Khan And Others v. State Of Hyderabad And Others

Shrinivasachari and Jaganmohan Reddy, JJ.:— This writ application is in connection with certain succession proceedings which took place in the Crown Grants Appellate Tribunal, the Atiyat Committee of the Hyderabad State. The proceedings started in connection with the succession to the estate of one Muthawar-ul-mulk. The proceedings were initiated by the respondent No. 5. Hamza Hussain Khan who applied to the Nazim-e-atiyat applying to the court to reopen the ‘Munthakab’ (decree) granted in 1342F., in favour of the petitioners now in this writ petition.

2. The said Hamza Hussain Khan although he was a party to the proceedings which culminated in the issue of the decree in 1342 F. desired that the whole case should be reopened on the ground that he was a minor at the time of the former proceedings and also that he was at that time out of the Hyderabad State. A Firman was issued by H.E.H the Nizam in 1347 F. condoning the delay and directing a re-enquiry in the Atiyat Courts Committee.

3. The original court viz. Nazim-e-atiyat gave its findings in favour of the respondents Nos. 5 to 11. The petitioners now before us being aggrieved by the findng of the Nazim-e-atiyat filed an appeal before the Atiyat Appeal Committee and when this appeal was pending, the Constitution of India came into force. The Atiyat Committee upheld the judgment of the Nazim-e-atiyat and held against the petitioners. Thereafter the petitioners applied for review of the order of the Appellate Atiyat Committee and the same was rejected by the Committee. The petitioners now seek to attack the judgment of the Atiyat Committee on various grounds viz., (a) that the Atiyat Committee not being subject to the superintendence of the High Court as all tribunals are under Article 227 of the Constitution cannot continue to be so after the Constitution and as it is against express provisions of the Constitution, it must be declared to be invalid; (b) that under the old law, the succession proceedings with regard to jagirs with an income of over Rs. 25,000/- used to commence before the Nazim-e-atiyat and an appeal from his judgment would lie to the Appellate Atiyat Committee whose members merely submitted, their recommendations to H.E.H the Nizam and until the Nizam accorded his sanction to the recommendations of this Atiyat Appellate Committee there was no enforceable decree or order.

4. It was contended that the Nizam ceased to possess such powers after the Constitution and therefore any order passed by him sanctioning the recommendation of the Atiyat Committee could no longer be held to be binding; and (c) if it is regarded that the order of the Nizam was an administrative order it could not be interfered with by way of writ proceedings; the rights of the parties could not be determined on the administrative side and, therefore, if such rights have been determined on the administrative side, they could not be upheld after the Constitution.

5. This case came on for hearing before the Division Bench and the Division Bench having regard to the number of questions of constitutional law involved in the case referred the same to the Full Bench by a referring order dated 22-1-1952. When the case was posted for hearing before the Full Bench, it was brought to our notice that some of the parties had compromised and had come to a settlement and did not wish to press this petition.

6. A compromise petition dated 12-9-1952 purporting to have been signed by all the petitioners excepting petitioners 6, 7 and 14 to 17 was filed. After an adjournment for the purposes of ascertaining the attitude of petitioners Nos. 6, 7 and 14 to 17 Shri Bishesharnath on behalf of these petitioners stated that he had no instructions to compromise and that he will press his petition.

7. As some of the parties wished to press the petition we had to hear the petition on the merits. The case was posted for arguments to the next day and arguments were heard.

8. A preliminary objection was raised on behalf of the respondents that the persons who had not joined the compromise viz., petitioners 6, 7 and 14 to 17 by their next friend petitioner No. 6 had no right to come in by way of an application for the issue of a writ of Certiorari inasmuch as these parties never filed an appeal before the Atiyat Committee against the order of the Nazim-e-atiyat and the only persons who filed appeals before the Atiyat Committee were Wahed Munwar Khan, petitioner No. 1, Hasan Munwar Khan, Petitioner No. 2 and Mohsin Munwar Khan petitioner No. 3, who had compromised and did not want to press the writ petition.

9. It was argued that by reason of these petitioners Nos. 6, 7 and 14 to 17 not having filed an appeal against the judgment of the Nazim-e-atiyat, the order of the Nazim-e-atiyat had become final so far as they were concerned and that it was not open to them to question an order which had become conclusive.

10. It was also urged that the petitioners had no right of their own as they were only persons entitled to shares under petitioner No. 1.

11. It is now well established that it is only a person who is affected or whose rights are affected that can invoke the jurisdiction of the High Court under Article 226 of the Constitution and seek to get the order of tribunal set aside on the ground that it violated any of the fundamental rights conferred by the Constitution or that it was against any provision of the Constitution or for any other matter such as want or excess of jurisdiction.

12. We would herein quote the observations of Hughs, J. in — McCabe v. Atchison’, (1914) 235 US 151 (A):

“It is an elementary principle that in order to justify the granting of this extraordinary relief the complainant's need of it and the absence of an adequate remedy at law must clearly appear. The complainant cannot succeed because some one else may be hurt nor does it make any difference with other persons who may be injured or persons of the same race or occupation.”

13. This observation has been approved by the Supreme Court in the case of — ‘Chiranjitlal v. Union of India’, AIR 1951 SC 41 (B). Applying the test laid down by Hughs, J. and approved by the Supreme Court to the case of the non-compromising petitioners, it would appear that they did not choose to file an appeal against the judgment of the Nazim-e-atiyat, that is to say, where there was an adequate remedy for them to get an adverse judgment set aside, they did not prefer to resort to that reriiedy.

14. Where, therefore, there having been an adequate remedy, they did not prefer to avail themselves of it, it must be held the first ingredient which is necessary for the exercise of the powers of the High Court under Article 226 is wanting. Further even granting that the petitioners 6, 7 and 14 to 17 are sub-sharers under petitioner No. 1 and have the same interest in the case, it would not justify our interference in writ proceedings unless it can be shown that the complainant has been affected.

15. If a party entitled to complain about want of jurisdiction neglects to do so he must be held bound by the judgment, as has been mentioned by me above. The non-filing of an appeal by the petitioners who are now attacking the order of the Atiyat Committee estops them from appearing before this Court and praying that the order be quashed. Laches or delay also would justify the rejection of this application. Quite apart from the preliminary objection, we do not find any substance so far as the merits of the petition are concerned.

16. As regards the argument that the Atiyat Committee could not function or pass any judgment as it ceased to have any jurisdiction after the Constitution, we may point out that the proviso to S. 21, Sub-s. (2) of the Jagir Abolition Regulation clearly enacts that in so far as the proceedings relating to the succession to a jagir are concerned, if they are pending proceedings oil the date of the coming into force of the Regulation, they would be completed according to the existing law.

17. The existing law, it cannot be denied, was that Atiyat Committee would hear appeals from Nazim-e-atiyat who constituted the court of original jurisdiction in regard to succession to a jagir property (Crown Grant) and the Appellate Atiyat Committee used to send its recommendations to H.E.H the Nizam who accorded sanction to the recommendations and the judgment become enforceable.

18. That pending proceedings should be completed according to the law applicable at the time when the rights and liabilities accrued and the proceedings commenced has been held to be good law by the Supreme Court in — ‘Ramjilal v. I.T Officer, Mohindargarh’, AIR 1951 SC 97 (C).

19. Therefore, there is no substance in the argument that the proceedings which are completed according to the then extant law relating to the proceedings of enquiry into the succession to the state of jagirdars were wrong.

20. Incidentally it was urged by Shri Bishe-sharnath that the Judges who constituted the members of the appellate court were not competent to hear the appeal as under the firman issued by H.E.H the Nizam the two members constituting: the appellate court should be of the rank of the Ministers and that in this case one of the members constituting the appellate court was Shri Govind Rao who was not a Minister in the State.

21. It is always the practice of Courts not to go into all the questions canvassed before the court where the case could be decided on a particular point. We are inclined to follow the same procedure in this case. Inasmuch as we have come to the conclusion that the contesting petitioners have no locus standi to question the validity of the order now sought to be impugned, it is no longer necessary and it is needless for us to go into other questions raised by the learned advocate for the applicants-and in this respect we desire to follow the wholesome rule enunciated by Cooley in his Treatise on Constitutional Limitations which is to the following, effect:

“In any case where constitutional question is raised, though it may be legitimately presented by the record, yet if the record presents some other dear ground the court may rest its judgment on that ground alone, if the other questions are immaterial having regard to the view taken by the Court.”

22. It is, therefore, not necessary to go into other questions. Since the only petitioners who have a right to present a writ petition do not wish to press their application, the same is, therefore, dismissed. The respondents will have the costs of this petition from the contesting petitioners viz., petitioners 8 and 7. Advocates fee Rs. 300/-.

Deshpande, J.:— I agree with the opinion of my learned Brothers, Srinivasa Chari and P. Jaganmohan Reddy, JJ. that the writ petition is not maintainable. Excepting the petitioners Nos. 3, 4, 6, 7 and 14 to 17 all the petitioners have stated that they do not want to press the petition as there was compromise effected between the parties. Those who have-not compromised namely petitioners No. 3, 4, 6, 7 and 14 to 17 are persons who have not filed, any appeal against the judgment of Nazim-e-Atiyat Court which was in favour of respondents Nos. 5-to 11 and against the petitioners.

23. In spite of the fact that there was remedy open to them to file an appeal against the adverse-finding of the Nazim., Atiyat Court as was done by petitioner No. 1, Wahed Munwar Khan, they rest-contented themselves with the finding of the Nazim, Atiyat Court. Under such circumstances they cannot now come and ask for the exercise of the 4 extraordinary powers of the High Court under Article 226 of the Constitution to quash the findings of the Appellate Atiyat Court.

24. In order to entitle them to this extraordinary-relief they must first of all show the need of it and the absence of adequate remedy at law. When the said petitioners have not availed of the remedy they are not entitled to invoke the extraordinary remedy of writ. Therefore in my opinion the writ petition is not maintainable and is dismissed with costs.

D.H.Z

25. Petition dismissed.

Waheed Munwar Khan And Others v. State Of Hyderabad And Others

Structured Summary of the Court Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (as recorded)

Respondents' Arguments (as recorded)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Additional Notes from the Opinion

Waheed Munwar Khan And Others v. State Of Hyderabad And Others

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