Sripatrao, J.:— This is a petition for the issue of writs of certiorari and prohibition under Article 326, Constitution of India (which will hereinafter be teemed. The Constitution). In the petition Act No. 16 of 1960 (which will herein-after be shortly termed the Act) assented to by H.E.H the Nizam as Raj Pramukh and which is styled as “The Wali-ud-Daula's Succession (Decision of Disputes) Act” is challenged as being inconsistent with part III of the Constitution and contravening the provisions of Article 13 cl. (2) and therefore it is claimed that the Act is void.
2. The relevant antecedent facts which terminated in the passing of the legislation as laid down in the Act may thus be briefly stated. Nawab Wali-ud-Daula Bahadur who was a big Paigab nobleman and a high dignitary of the State died on 22-2-1935 (20th Farwardi 1344F) leaving behind him, (it is claimed) 4 widows petitioners 1 & 6 and respondent 8 and one Fatima Begum, 8 sons viz., petitioners a, 3, 6, 7 & 8 and respondents 4, 5 & 6 and 7 daughters viz., petitioners 4, 9, 10, 11 & 12 and respondents 7 & 8. It is alleged that there was dispute among the several heirs, and petitioner 1 Mahbub Begum was not recognized by some heirs as the wife of the late Nawab. Therefore, Mahbub Begum and her children (being petitioners 1 to 4) instituted a suit in the Court of Darul Quaza Balda on 7th Farwardi 1347F (8-2-1938) praying for a declaration that petitioner 1 was the lawfully wedded wife of the late Nawab and petitioners S. 8 & 4 were the legitimate off springs born out of that wed-lock, and further that they should be given their legal share out of the inheritance. After this suit, the claim of the said petitioners underwent a chequered career. It is alleged that respondent 3 Amirunniesa Begum approached H.E.H the Nizam who issued a Firman dated 28-12-57 Hijri (19-2-1938 A.D) directing that a Special Commission consisting of the Chief Justice of the High Court and a Judge of the Court of Darul Quaza Baida be appointed to enquire into the late Nawab's succession case and the removal of the case instituted by petitioners 1 to 4 from the Court of Darul Quaza to the Special Commission and further directing that the result of the enquiry by the said Commission be submitted through the Executive Council to H.E.H the Nizam for final orders. Another Firman dated 2nd shahban 1353 Hijri (3-1-1940 A.D directed the Special Commission to enquire into the claims of Kharidan Begum (also named as Khadran Begum) petitioner 5. It is alleged that the Said Special Commission held a thorough enquiry extending over several years. More than 100 witnesses were examined, and about 233, exhibits were produced, Ultimately, the Commission gave its decision and submitted its report on 11-1-1354F (16-10-1944) holding, among other things, that Mahbub Begum and Kharidam Begum petitioners 1 & 5 were the lawful wives of the late Nawab and the children born to there were his legitimate issues. The Commission was also of the opinion that the said wives and children were entitled to their legal share (under Mahomedan law) in the property of the late Nawab. It is stated that there was a supplementary Report by the Commission on 14-1-1354F (19-10-1944). It is admitted that when this report went to the Executive Council for opinion and report H.E.H issued a Firman dated 18th Ramzan 1354H (25-8-1945 A.D) directing that the then Legal Adviser and two High Court-Judges should go through the papers in the file and submit their report before the Executive Council. It was made clear in the Firman that the said three honourable gentlemen were not to record any witnesses or allow any documentary evidence nor should they heat the arguments of the parties. They were directed to consider the contents of the file and submit their opinion as to whether the three contestants (petitioners 1 & 5 and respondent 3) were or were not lawful wives. For the sake of brevity, I shall call this new committee under said Firman as the Special Committee. It is stated that the Special Committee in its opinion did not agree with the recommendations of the Commission. Finally when both the opinions and the opinion of the Executive Council were submitted for orders, H.E.H the Nizam agreed with and sanctioned the recommendations of the Commission and disagreed with the opinion of the Special Committee and issued a Firman dated 6th Shahban 1366H (26-6-1947 A.D) approving the recommendations of the Commission and directing; that it should soon be executed, as a result of which petitioners 1 & 5 were declared to be the lawful wives of the late Nawab and petitioners 2, 3, 4, 6, 7, 8 to 12 were declared to be his lawful children and it was ordered that they should be given their legal share in the property of the late Nawab as recommended by the Commission.
3. Another Firman dated 28th Rajjab 1367H (7-6-1948) was issued by H.E.H the Nizam directing that the Chief Justice of the High Court should take steps to execute the decree envisaged in the decision of the Commission. It is admitted that in obedience to this Firman, execution proceedings were going on in the High Court before the Chief Justice, and the parties were represented.
4. This is approximately the time that the Police Action took place. It is stated that respondent 3 Amirunissa Begam submitted a petition on 15.10.1948 before the Chief Civil Administrator and that the Military Government issued a D.O No. 51 dated 16th Azur 1353F (16-10-1948) directing the Chief Justice to stay the execution proceedings pending before him. It is alleged that at this stage the case was sent to the Legal Adviser to the Military Governor and Mr. G.H Spence (Legal Adviser to the Military Governor) purporting to act on a Firman dated 21-2-1949 issued notices to the parties for the hearing of the case. Subsequently, a Firman dated 7-9-1949 was issued which purported to dismiss the claims of Mahbub Begum and Kharidan Begum, petitioners 1 and 5. The said Firman authorized Sir George Spence, Legal Adviser to the Military Governor, to hear the parties and to take further evidence if he thought fit and to submit his opinion.
5. The petitioners complain that Sir George Spence gave his opinion against them and the Legislative Authority of the State passed the Act (Nawab Wali-ud-Daula — (Decision of Disputes) — Act, 1950) dismissing the claim of petitioners 1 and 5 and their children, in the property of the late Nawab. They argue that the said Act is arbitrary and ultra vires.
6. It is to be remembered that the Act was passed on 24-4-1950 after the commencement of the Constitution of India.
7. The case was ably argued by Shri Ekbote, Advocate, and Shri Akbar Ali Khan, counsel, on behalf of the petitioners and by Shri Ramaswamy Iyengar, Advocate, Shri V. Rajaram Iyer, Advocate-General and Shri Ghulam Ahmed, Advocate, on behalf of respondents. The relevant articles of the Constitution to which reference was made during the course of arguments are Article 14 which enjoins the State not to deny to any person equality before the law or the equal protection of the laws, Article 19(f) which guarantees the right of every citizen to acquire, hold and dispose of property, Article 31 which enacts that no person shall be deprived of his property save by authority of law, and Article 13 which declares all laws made by the State which infringe the fundamental lights mentioned in Part III of the Constitution void. Incidentally, some other articles were also referred to.
8. It is in the light of the above that I will now consider the various sections of the impugned Act.
9. The Act runs as follows:
“The following Act received the assent of H.E.H the Nizam on 24th April 1950 and is hereby published for general information.
THE WALI-UD-DOWLA Succession (Decision of Disputes) Act, 1950 No. XVI [16] of 1960.
WHEREAS the late Nawab Wali-ud-Dowla died in the year 1935 and the succession to his estate has since been in dispute;
AND WHEREAS the matters is dispute have been enquired into by sundry authorities to whom they have from time to time been referred by His Exalted Highness the Nizam;
AND WHEREAS on a consideration of the reports of certain of the said authorities certain orders were passed in the Firman issued by His Exalted Highness the Nizam on the 24th February 1949;
AND WHEREAS the further Firman issued by his Exalted Highness the Nizam on the 7th September 1949, revoked the said orders and referred the case for further enquiry by the person named therein;
AND WHEREAS the said person has after due enquiry reported that orders should be passed in the sense of the orders so revoked;
AND WHEREAS it is expedient that binding and final effect should be given to the said report;
It is hereby enacted as follows.
1. Short title and commencement—(I) This Act may be called the Wali-ud-Dowla Succession (Decision of Disputes) Act, 1950.
(2) It shall come into force from the date of its publication in the Jareeda.
2. Decisions,—(1) The claims of Mabbub Begum and Khadran Begum and of their respective children to participate in the distribution of the Matrooka of the late Nawab Wali-ud-Dowla are hereby dismissed.
(2) There shall be paid to Fatimat-un-Nissa Begum out of the said Matrooka a sum of one lakh of rupees on account of her hag mahar,
3. Finality of Decisions.—The decisions affirmed in Section 2 shall be binding on all parties concerned and shall not be called in question in any Court.
4. Execution.— The High Court shall on the application of any person having an interest in a decision affirmed in Section 2 execute the said decision as if it were a decree passed by itself and such person were the decree-holder.
Sd/- S.M Younus,
Legal Secretary.”
10. The object of the Act as shown in the enactment is that binding and final effect should be given to the said report.” By report it is meant the report of the Legal Adviser dismissing the claims of the petitioners and the suit instituted by petitioners 1 to 4. Section 2 cl, (1) of the Act states that the claims of Mabbub Begum and Khadran Begum and of their respective children to participate in the distribution of the Matrooka of the late Nawab Wali-ud-Daula are dismissed. It is not necessary at this stage to consider sub-cl. (2). Section 3 enacts that:
“The decisions affirmed in S. 2 shall be binding on all parties concerned and shall not be called in question in any Court”.
11. Mr. Ekbote, learned counsel for the petitioners, has argued that S. 2 of the Act infringes Article 14 of the Constitution. It denies the petitioners equality before the civil law of the land and the equal protection of the civil laws. He argues that the suit of petitioners 1 to 4 was instituted in a properly constituted civil Court. Ultimately, it was transferred before the Commission which enquired into the claims of the petitioners. Finally, a decree was passed in their favour which was being executed in the High Court, that decree had become final. The decree though based on the Firman of H.E.H the Nizam was a good and valid decree as in those days the Firman of H.E.H the Nizam was the law and the Nizam being the supreme authority in the State was empowered to issue it and the Constitution which is prospective cannot affect the decree even though it was passed after having recourse to a somewhat extraordinary mode of procedure. There was no appeal against it and it is contrary to all principles of civil law to deprive the petitioners of the fruits of that decree by the impugned Act. The Act dose not lay down any principles and it is an arbitrary piece of legislation. It is further argued that the decree fell within the definition of “property” which the petitioners were entitled to hold under Article 19(f) of the Constitution and this fundamental right has been denied to them. He further argues that the petitioners cannot be deprived of the property except by authority of law and authority of law means according to procedure established by law and as this law did not establish any procedure or follow rules of procedure regarding private legislation it was ultra vires.
12. In order to consider the weight and relevancy of these arguments, I think, it is first of all necessary to examine in detail the implications of Article 14 of the Constitution. This article is in many respect similar to the 14th Amendment of the American Constitution, the relevant portion of which runs as follows:
“…. no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
13. It is evident that the 14th Amendment has included in one section the provisions which are enacted with some modifications in Articles 14, 19, 21 and 31 of the Constitution. A reference to American Law and some of its decisions will therefore be useful at this place. Speaking of this clause of the 14th Amendment Field, J. remarked:
“This clause undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty or arbitrary spoliation of property but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil right, that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the Courts of the country for the protection of their persons and property, the prevention and redress of wrongs and the enforcement of contracts; that no impediment should be Interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and conditions….” (Barbier v. Connolly, 113 U.S.P 27 : 28 Lawyers Edn. 923 at 924).
14. It has been held that this clause is designed to furnish additional guarantee against encroachment by the States on fundamental rights, that it is not intended to hamper the States in the discretionary exercise of their appropriate sovereign powers, unless substantial rights are arbitrarily invaded by illegal and oppressive exactions and discriminations (Hinebaugh v. James. 112 American Law Reports p. 69). The guarantee of the equal protection clause was aimed at undue favour and individual or class privilege. It sought equality of treatment of all persons in which Taft C.J observed at p. 832, col. 1:
“Our whole system of law is predicated on the general fundamental principle of equality of the application of the law. All men are equal before law. This is a Government of laws and not of men…. The guarantee was aimed at undue favour and individual or class privilege on the one hand and at hostile discrimination or the oppression of inequality on the other hand. It sought an equality of treatment of all persons even though all enjoyed the protection of due process” (Truax v. Corrigani, 275 U.S.P 312 : 66 Lawyers Edn. 254).
15. Examining the contents of the Act with respect to the claims of the petitioners which have been dismissed in spite of the existence of the decree in their favour I have to consider whether it amounts to “arbitrary” spoliation of property and whether the petitioners have been denied the equal protection of the laws in the enjoyment of their personal and civil rights. I am inclined to hold that the right to institute a suit in a Court of law regarding one's claim is a civil right and that the claim of the petitioners as being lawful wives and children of the late Nawab is “property” and that they had a right to seek the assistance of the Court for the protection of their said property. They had exercised that right and instituted their suit. This suit was transferred to the Commission. It is not necessary for me to consider as to how far the Firman transferring the case to the Commission was legal or whether it was arbitrary. The Commission was appointed before the commencement of the Constitution and it is argued that every order of the Nizam was good law in those days and therefore that order was perfectly legal, moreover parties submitted to its jurisdiction. Be that as it may, we have to consider the question in the light of the provisions of the Constitution after the commencement of which the impugned Act was passed. The petitioners have argued that the Commission—whether the case was rightly referred to it or not—had decided the case in their favour and there was the decree which affirmed their right and that after the commencement of the Constitution it was beyond the powers of the Legislative Authority to deprive thorn of their rights in the property of the late Nawab, acknowledged by the said decree, the sanctity of which should not have been violated. In my judgment, there seems to be no reason why the equal protection of the law which is available to all persons under the Constitution should have been denied to the petitioners by the impugned Act The petitioners Lad gone to the civil Court and had ultimately obtained a decree—under the Firman in their favour. There is no reason why they should be deprived of the enjoyment of the fruits of that decree and why under Article 19 ??? they should not hold the property to which they were entitled under the decree. In my opinion, this fundamental freedom of their has been infringed. We enquired of the respondents as to what public benefit there was for setting aside the decree by this piece of legislation but there was no reply forthcoming. Mr. Ramaswamy Iyengar emphatically argued that thy State had such a power to enact legislation regarding personal or private rights. It is no doubt true, as held in Hine Baugh v. James, 112 American Law Report 59 already referred to, that the “equal protection clause is not intended to hamper the States in the discretionary exercise of their appropriate sovereign powers, but this discretion should not be tantamount to arbitrary invasion of substantial rights by oppressive exactions and discriminations. I cannot understand why the claims and rights of the petitioners which were duly decreed should have been abridged and negatived by this extraordinary piece of legislation.
16. Now it is necessary to examine the argument of Mr. Ramaswanay Iyengar, learned Advocate for respondents that the State has complete unlimited and unrestricted right to enact legislation regarding the rights of private persons. He bus also argued that the Courts should not go behind the it and look into its propriety because the State has sovereign power to enact any legislation which is thought expedient. He has referred to Dicey's Law of the Constitution, 8th Edn., pp. 37 to 46. Page 37 begins with ch. 1 which deals with the nature of Parliamentary Sovereignty. Dicey states that,
“the principle of Parliamentary Sovereignty means … that Parliament has under the English Constitution the right to make or unmake any law whatever; and farther, that no person or body is recognized by the law of England as having a right to overside or set aside the legislation o? Parliament.”
17. I am afraid I cannot apply this principle enunciated by Dicey in view of the provisions of part III of the Constitution. In England the Parliament is supreme. It can make any law whatever but that is not the position in our country. Under our Constitution neither the Union Parliament nor a State Legislature can make any law which takes away or abridges the rights conferred by part III of the Constitution and any law, it has been provided, made in contravention shall, to the extent of the contravention be void. This is laid down in Article 13 cl. (2) of the Constitution. Article 12 defines what is meant by “the State” and it explains that unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States…. Thus, it is clear that there is a limitation imposed by part lit of the Constitution upon the legislative powers of the various legislative authorities in the territory of India. In England Parliament is supreme but in our country the powers of the Legislature are downed in the Constitution and they cannot go beyond the limitation laid down in the same. Hence, in my opinion, reference to the laws of England or decided cases of that country or to such of the Indian cases decided in the days when our country was subject to the judicial decisions of the Privy Council will not be of much use for the purposes of deciding a question under Consideration. On p. 46 Dicey has dealt with the question of interference of Parliament with private rights. But even there Dicey has said: “Parliament, however, habitually interferes for the public advantage with private rights 11 Some instances are also given that Parliament may adjudge an infant or minor of full age. It may pass a child that by law is legitimate. It may pass an Act that the heirs of a man or woman should inherit during the lifetime of the ancestor but even in England this somewhat arbitrary tendency to enact legislation regarding private rights seems to be in the decline and it is generally in cases of public advantage that legislation regarding private rights had been resorted to. Thus, Acts regarding Railways Harbours and Docks or the settlement of private estates or declaring marriages valid have been enacted. As I have observed above looking to the question even from the point of view of English Parliamentary procedure, I fail to see what public advantage hag been secured by the State, respondent 1, in enacting the impugned Act. Prima facie, there is no question of public utility or benefit to the society in the impugned Act. Mr. Ekbote described before us the various stages through which legislation regarding settlement of private estates in England has got to go through before it is enacted as a law. Blackstone in his Commentaries, vol. II p. 298 discusses the nature and procedure of private Acts of Parliament and be says
“that Acts of this kind are at present carried on with great deliberation and caution. They are usually referred to two Jadges to examine and report the fact alleged and to settle all technical forms. Nothing is done without the consent expressly given of all parties in being and capable of consent that have the remotest interest in the matter”
and equivalent in money or other estate is usually settled upon infants or persons not in esse or not of capacity to act for themselves, who are to be concluded by this Act, and a general saving is constantly added at the close of the bill, of the right and interest of all persons whatsoever except those whose consent is so given or purchased and who are therein particularly named. Though it has been held that even if such saving be omitted the Act shall bind none but the parties. Blackstone further states that such a private statute can be set aside when obtained upon fraudulent suggestions and it has been held to be void if contrary to law and reason. Such a private statute is generally enacted to relieve the owner when an estate is most grievously entangled by a multitude of contingent remainders, resulting trusts and like artificial contrivances. It is in the nature of a conveyance. Judging from these standards of English Constitutional procedure, the impugned Act does not stand any of the testis mentioned by Blackstone. There was in this case no consent given by the petitioners for the impugned Act.
18. Mr. Ramaswamy Iyengar, the learned Advocate for respondents, argued that the decree in favour of the petitioners should be considered to be non-existent because by the Firman dated 24-2-1949 the recommendations of the Commission were turned down and the recommendations of the Special Commission were directed to be given effect to. He concedes that subsequent to the said Firman another Firman dated 7-9-1949 was issued revoking the said Firman dated 24-2-1949. But he contends that the decree is not restored thereby; at the most it was in a state of animated suspension. In view of the wording of the Firman dated 7-9-1949 my opinion is that the Firman dated 24-2-1949 was revoked and the result, therefore, was that the recommendations of the Commission on which the decree was based were restored to their former state; no doubt subject to a further examination by the Legal Adviser to the Military Governor as directed in the later Firman dated 7-9-1949. The decree was there, though it was in a state of animated suspension, because there was always the apprehension that it may be set aside if so advised by another Firman so long as the unrestricted and supreme powers of the Nizam continued till the commencement of the Constitution.
19. Regarding the competence of the Legislative Authority in the Hyderabad State Mr. Ramaswamy Iyengar has posed four questions: (1) Who was the legislative authority of Hyderabad State before the commencement of the Constitution? (a) Was this Act enacted by the legislative authority? (3) is the Act covered by any or which of the items in the Lists? (4) Does the power to legislate include the right to decide a particular marriage? He contends that the alleged motives and the alleged defects in the wording of the Act are irrelevant for the purposes of this case. He states that very curious things might have happened before the passing of the impugned Act and very curious and arbitrary orders might have been passed in this particular case by H.E.H the Nizam. He concedes that the whole proceedings of the Commission and the subsequent orders and Firmans were a part of the state of things prevailing in this autocratic State before the commencement of the Constitution. He asserts that H.E.H the Nizam had absolute powers before the commencement of the Constitution and that before the Police Action the Nizam was the supreme authority and his acts could not be questioned. In our opinion, so far as the position of the legislative authority in the State before the commencement of the Constitution is concerned, Mr. Ramaswamy Iyengar has given a fairly correct picture, but the question is whether such autocratic acts could be tolerated after the commencement of the Constitution and the provisions of Part III therein. No doubt H.E.H the Nizam was the supreme legislative authority before the commencement of the Constitution but mach water has flown below the bridge and after the commencement of the Constitution the impugned Act can be enacted, only if it does not infringe part III or any other provisions of the Constitution. Mr. Ramaswamy Iyengar argued that the Legal Adviser to the Military Governor had submitted his report before the commencement of the Constitution but a Firman could not be obtained on it before that date and hence arose the need for passing the impugned Act. He states that the report of Sir George Spence was before the Council of Ministers for consideration a few days before the commencement of the Constitution and Government were in a difficulty after the commencement of the Constitution to obtain a Firman in terms of the report of Sir George Spence. Therefore, this impugned Act was enacted. Probably, Mr. Ramaswamy Iyengar may be and is correct regarding the difficulty of Government. What we have to decide is whether the passing of the impugned Act which was baaed on the report of Sir George Spence and which arose out of the directions given by H.E.H the Nizam which have been conceded to be of an autocratic and arbitrary nature, is valid and intra vires of the Constitution or void. If the impugned Act is void it is the duty of the High Court under the Constitution to declare it so. No doubt, we are not to pass any opinion regarding the wisdom or policy of the Act if it did not infringe the Constitution. It has been observed by Varadachariar C.J, of the Federal Court that
“when a question of principle is involved it is scarcely fair to complicate it by introducing considerations of personalities: Emperor v. Benoari Lall Sarma, A.I.R (30) 1943 F.C 36 at p. 48 Col. 1, para 2; (ILR 1943 KAR 48 FC).”
20. In my opinion, this observation of the Federal Court sufficiently meets the argument of Mr. Ramaswamy Iyengar that the Legal Adviser had no particular reason against the petitioners to pass the impugned Act dismissing their claims. The next question mooted by Mr. Rama, swamy Iyengar is that who is the legislative authority in the State after the commencement of the Constitution and was this impugned Act enacted by the said legislative authority. We agree with him that under Article 385 of the Constitution read with the President's Removal of Difficulties Order no. 212A, sub-cl. (2) H.E.H the Nizam, the Raj Pramukh, is at present the legislative authority. The sub-clause provides that the Raj Pramukh or the other authority exercising the legislative powers in any State as aforesaid under Article 385 shall prepare such bills as may be deemed necessary, and the Raj Pramukh shall declare as respects any bill so prepared either that he assents to the bill or that be withholds assent therefrom or that he reserves it for the consideration of the President. Looking at the impugned Act from this point of view in my opinion there is no strength in the arguments of the learned Advocate for the petitioners that H.E.H the Nizam has no legislative power under Article 385. I agree with Mr. Ramaswamy Iyengar that go far as the formality of the passing of the impugned Act is concerned there is no defect in the same in view of Article 385 and President's Order No. 212-A, sub-cl. (2).
21. Regarding question 3, Mr. Ramaswamy Iyengar argues that the Act decides the question of the legitimacy of marriage of petitioners 1 and 5 and as such, it is included in List III, of the Constitution) item 5 which covers the subject of marriage, succession, and all matters in respect of which parties in judicial proceedings were subject to their personal law. It has been conceded by Mr. Ekbote that this is the item under which legislation with regard to marriages and succession could be passed. The 4th question argued by Mr. Ramaswamy Iyengar is “does the power to legislate include the right to decide a particular marriage” and he states that it does include and it is competent for the Legislature to pass an enactment regarding private rights. He argues that every Legislature is a mistress in her own house. The Canadian Legislature is a mistress in her Canadian House and the Indian Legislature is a mistress in her own house in India. He has referred us to The Empress v. Burah, 4 cal. 172 : (5 I.A 178 P.C), in which their Lordships of the Privy Council held that when plenary powers of legislation exist as to particular subjects whether in an Imperial or Provincial Legislature they may be well exercised either absolutely or conditionally. Thia ruling in my opinion has no bearing in view of Part ill of the Constitution. It was good law before the Constitution but the position has now changed and it cannot now be said that the local legislative authority has plenary powers of legislation irrespective of the provisions of the Constitution. In E.R Croft v. Sylvester Dunphy, A.I.R (20) 1933 P.C 16 : (143 I.C 91), the question was whether the Canadian Parliament had the power to pass a legislation authorising the forfeiture of dutiable goods found in vessela “hovering” within a distance of 12 miles from the coast of Canada. It was held that as the Dominion had full power to enact customs laws for Canada the Act was not ultra vires. This ruling is not relevant as the Canadian Parliament had supreme legislative authority concerning the subject of the legislation. In British Coal Corporations. The King, A.I.R (22) 1935 P.C 168 : (157 I.C 371), the question was with regard to the interpretation of statutes and not with regard to the constitutional limitations of the legislative authority. In Atiqa Begum v. Abdul Maghni Khan, A.I.R (27) 1940 ALL 272 : (I.L.R (1940) ALL. 455 F.B), it was held that there is a presumption in favour of the legality of a statute and a statute should not be held to be unconstitutional or ultra vires unless it is clearly repugnant to the Constitution. The question in the ruling was with regard to the interpretation of Sections 299 and of the Government of India Act, 1935, and it was held that the U.P Regularisation of Remissions Act having received the assent of His Excellency the Governor its validity could not be called into question on the ground that previous sanction to its introduction as required by sub-section (3) of Section 299 of the Government of India Act, was not obtained. In the case before us, no Book question was raised. Nek Mohammad v. Province Of Bihar, A.I.R (36) 1949 Pat 1 : (60 Cr. L.J 44 F.B), was a case not under the Constitution but under the Government of India Act, 1935, and it was held that in interpreting a Constitution Act, a wide meaning should be given to the words which confer upon any Legislature the power to legislate on certain topics and within the ambit of the words, the most sovereign power must be understood to be given to the Legislature. There was no question in that case involving fundamental rights as laid down in Part III of the Constitution.
22. Mr. Ramaswamy Iyengar has also refer, red to Punjab Province v. Daulat Singh, A.I.R (28) 1941 Lah. 182 : (195 I.C 17 F.B), in which it was held that the Provincial Legislature can take away the right of the Courts to try any dispute which the Legislature considers it inexpedient to be decided by Courts at all. The judgment in the case was delivered by the Full Bench and the majority judgment of Monroe and Sale JJ., confined itself to the question regarding the effect of the Amending Act (x [10] of 1988) and they held that the Act was intra vires, qua sales of mortgages of agricultural lands effected by agriculturists in favour of agriculturists who were benamidars for non-agriculturists after the commencement of the said Amending Act. The judgment of Dalip Singh J., in which at p. 188, col. 2 the question with regard to the power of the Provincial Legislature to take away the right of civil Courts was not discussed by the two other learned Judges and they preferred not to express any opinion upon the point (sic). Even Dalip Singh J. has not given any authorities for adumbrating his view, as such, the opinion of this learned Judge has got to be read with caution, and has further to be examined in the light of the Constitution which was not existing at the time of the said ruling. In Jogendra Narayan Deb v. Debendra Narayan Roy, A.I.R (29) 1942 P.C 44 : (ILR 1942 KAR 71 PC), the Assam Legislature passed an Act being Act (II [2] of 1931) called the Bijni Succession Act while a suit was pending in the Court with regard to the Bijni Raj on behalf of the executor to the estate of the late Rani Abhayeswari who had died having made a Will. The purport of the said Assam Act was to debar the claim of the said plaintiff to the immoveable properties of the Raj and the question to be decided was whether under the provisions of Government of India Act, 1915 the said Act Was invalid because the case was within item 51 of part II of Sch. (1) of the Rules which classes as a “Provincial subject”
“any matter which, though falling within a central subject is declared by the Governor-General-in-Council to be of a merely local or private nature within the-province.”
23. The second point was whether the Act was within the competence of the Provincial Legislature and the Privy Council held that the irregularity with regard to the absence of previous declaration under Item 51 was cured on account of the-subsequent sanction of the Act by the Governor-General. They also held that the Assam Legislature had power to enact such an Act. It is clear from the ruling that under Item 61 Part II of sch. I of the Rules the Governor-General had power to authorise the Provincial Legislature to make laws regarding subjects of a private nature, under List 3, item 5 of the Constitution, the Provincial Legislature is empowered to make laws regarding marriages or succession, etc., but there is no mention in this list that private legislation or legislation regarding individual rights can be enacted. The State may make laws based on classification and the basis may be either territorial or with regard to a class of persons. Thus different law of succession can be made if they are to apply to different territories or units in a State or if they are to apply to different classes of persons. But such classification must be reasonable and must also be subject to constitutional limitations. The impugned Act has not been passed on the basis of classification and it is not necessary therefore to pursue this question of class legislation any further. Obviously, it means that the appropriate Legislative can enact a legislation embodying the general law regarding marriages, succession and all matters in respect of which parties in judicial proceedings would be subject to their personal law. The general personal law regarding marriages, divorce, succession can be enacted under this item, but a decision regarding the rights of an individual or individuals obviously is outside the purview of this item. We have to consider this point with greatest care possible as it was suggested that probably the law enacted in the case referred to above was evidently the reason which was in the mind of the Legal Adviser while advising the Legislative Authority to enact the impugned Act. Mr. Ramaswamy Iyengar also laid great stress on it as by the Assam Act referred to in the ruling the suit filed by the executor of Rani Abhayeswari was dismissed. The ruling was good law so far as its validity under the Government of India Act, 1915 is concerned as the Provincial Legislature could pass a law regarding private estates, individual rights and rights of a private nature. But we have to consider the effect of the Constitution, the preamble of which has guaranteed to secure to all its citizens justice, social economic and political, and further under Part III of the Constitution the fundamental rights of persons and citizens have been guaranteed. Obviously, it is one of the fundamental rights under Article 11 that equal protection of the laws should be given to all persons; inter alia the protection of the law Courts available to a person that be should not be deprived of his right to properly or a claim to a right to property is a valuable right when such a right is available to all the persons of the State. If a person is to be deprived of his right to claim property under his personal law by claim being dismissed by an enactment of the Legislature unless each a thing is allowed under Part III of the Constitution it is no doubt a denial of the equal protection of the laws under Article 14. This means that the principle of the equality of the application of the law (in this particular case the right of a litigant to get his claim regarding succession to property decided by a Court of law) is denied and it is a discrimination against the petitioners in this case.
24. As observed by Field J. in Barbier v. Connolly, (113 U.S 37 : 28 Lawyers Edn. 923) already referred to, the equal protection of the laws clause means that all persona
“should have like access to the Courts of the country for the protection of their persona and property, the prevention and redress of wrongs, and the enforcement of contracts……”
25. After carefully pondering over the question I have come to the conclusion that whatever the position may have been before the commencement of the Constitution the impugned Act which amounts to the dismissal of the claim of the litigants is an infringement on the fundamental rights under Article 14 of the Constitution. In 83 American Law Reports (George Marallis v. City of Chicago) Young J. who delivered the opinion of the Court held that the equal protection clause meant that all persona under like circumstances should have like access to the Courts of the country for the protection of their persons and property and prevention and redress of wrongs. See also Hayes v. Missouri, 30 Lawyers Edn. 578. I am, therefore, constrained to hold that the impugned Act infringes Article 14 of the Constitution and A.I.R (20) 1942 P.C 44 has no bearing. In the North Charterland Exploration Company v. The King, 1931-1 ch. 169 : (99 L.J ch. 483), the question was whether the land granted in a protectorate by the Crown under the royal prerogative could be taken away by a legislative Act of the Crown and it was held that as the Crown had full legislative authority controllable only by the Imperial Parliament the legislation was valid and the grant of land cannot impose a fetter on the legislative power of the Crown. It is clear that this ruling can be of go avail to the respondents in the light of the above discussion.
26. With regard to facts Mr. Ramaswamy Iyengar argued that all the proceedings in this case before the commencement of the Constitution were valid and that the decree which was passed in favour of the petitioners by the Commission should be considered as dead and gone by the Firman dated 28th Rabiussani 58-H (24-2-1949) by which effect was given to the findings of the Special Committee though he has conceded that by the Firman dated 7-9-1949 the effect given to the findings of the said Special Committee was nullified and the Firman revoked the effect so given and directed that the case be referred for opinion to the Legal Adviser. In our opinion the effect of the Firman dated 7-9-1949 is that the previous Firman dated 24-2-1949 was revoked and set aside with the result that the decree passed by the Commission in favour of the petitioners was restored to its former status subject to the opinion of the Legal Adviser and the final decision of H.E.H and as Mr. Ramaswamy Iyengar has aptly put it the decree was in a state of animated suspension. The impediment imposed upon the decree (its being made subject to the opinion of the Legal Adviser and final orders of the Nizam thereon) was removed due to the advent of the Constitution.
27. One more argument advanced by Mr. Ramaswamy Iyengar needs a little discussion. He has argued than under Article 31, cl. (1) it is enjoined that no person shall be deprived of had property save by authority of law. He argues that assuming the decree to be property, there is this impugned Act or law which authorises the deprivation of the said property and therefore, it is not in contravention of the provisions of Article 14 also as there is the authority of law (this impugned Act) for the deprivation of the property of the petitioners. It is difficult to agree with this argument. What the impugned Act enacts under S. 2 cl. (1) is that the claims of Mahbub Begum and Khadran Begum and of the respective children in the Matrooka of the late Nawab are dismissed. Thus virtually the petitioners have be on deprived of their right under the decree passed in their favour.
28. Sub-section (1) of Article 31 has got to be read in the light of the other sub-clauses contained in the Article and for interpreting the words “by authority of law” in sub-cl. (1), the whole of Article 31 should be borne in mind. Thia Article as the marginal note denotes reflates to the compulsory acquisition of property. Sub-clause (2) lays down that
“no property…. moveable or Immoveable……shall be taken possession of or acquired for pubic purposes under any law authorising the taking of such possession or such acquisition unless the law provides for compensation or the property taken possession of or acquired……”
29. It is dear from this that the law specified in sub-cl. (1) authorising the deprivation of property should comply with the provisions of sub-cl. (2). That is, if the impugned Act is to be good and valid law under Article 31, it should have provided for compensation for the property of the petitioners and should either have fixed the amount of compensation or specified the principles on which and the manner in which the compensation is to be determined and given. From a perusal of the impugned Act it is evident there is no provision for compensation to be paid to the claimants. As laid down by their Lordships of the Supreme Court in A.K Gopalan v. State Of Madras ., A.I.R (87) 1950 S.C 27 : (51 Cr. L.J 1383), the word, “law” is equivalent to State-made law but that law must also be a valid law. The impugned Act therefore is not a valid law under Article 81 of the Constitution. While coming to this conclusion I have also in mind the observations of the Supreme Court referred to in Gopalan's case (A.I.R (37) 1950 S.C 27 : 61 Cr. L.J 1383) regarding the powers of Courts to declare an Act void. In para 26 of the said report (A.I.R (37) 1960 S.C 27) my Lord the Chief Justice has said:
“Where the fundamental law has not limited either it terms or by necessary implication the general powers conferred upon the legislature we cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not even mentioned in the inetrument. It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition except be far as the express words of the written Constitution give that authority……But it is only in ex pres a Constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation that one can find a safe and solid ground for the authority of Courts of Justice to declare void any legislative enactment.”
30. Such is also the view mentioned in some of the American Case Atkins v. Chsldnres Hospital, 67 Lawyers Edn: 785 : 265 U.S 535 in which Southerland J. has said that
“the duty of Courts to hold an enactment either void or intra vires ‘is one of great gravity and delicacy’ and this power of the Court is subject to two guiding principles of decision which ought never to be absent from judicial consciousness: one is that Courts are concerned only with the power to enact statutes not with the wisdom; the other is that while unconstitutional exercise of power by the executive and legislative branches of the Government is subject to judicial restraint, the only restraint upon the exercise of power by Courts is their own self restraint.”
31. Bearing these guiding principles in mind while considering the impugned Act we are not concerned with the wisdom of the Act or with the facts which led the legislative authority to pass the impugned Act. What I am concerned with is whether the legislative authority had the powers to enact the impugned Act. Keeping all the self-restraint in my mind it is difficult to hold that the enactment has not infringed Article 14 of the Constitution. Another protection under Article 31 is that no person should be deprived of his property save by authority of law. These protections have been denied to the petitioners by the impugned Act. It therefore takes away the rights conferred by part ill of the Constitution and the impugned Act which has been made in contravention of Article 13, cl. (2) is therefore void. It is now necessary shortly to examine the various sections of the impugned Act. Sections 1 and 2 of the Act refer to the title of the Act and the date of its commencement. I have already held that S. 2, sub-cl. (1) is in contravention of Part III of the Constitution and is therefore void. Sab-cl. (2), s. 2 provides that there shall be paid to Fatimatunnissa Begum out of the said Matrook a sum of one lakh of rupees on account of her huq-e-mehar. I have held in the foregoing Lines that the decree passed on the report of the Commission in favour of the petitioners is a valid and existing decree. That report gives the amount of one lakh of rupees to Fatimatunnissa Begum. Therefore this clause in the section is obviously superfluous. But I do not wish to express any opinion regarding this clause as Fatimatunissa Begum is not a party before us. We have not had the opportunity to listen arguments on her behalf and it is not therefore fair to pass any judgment regarding her rights mentioned in the impugned Act. Neither the petitioners nor the respondents have assailed this sub-s. (2). I would like this sub-s. (3) to remain as it is. If it is redundant in view of the report of the Commission no barm will be done if it is retained. Section 3 of the impugned Act automatically goes, in so far as it relates to S. 2, cl. (1) but is retained so far as it relates to S. 2, sub-s. (2). In view of the above discussion S. 4 is retained.
32. My conclusions are that: (1). The impugned Act has not been passed on and after obtaining the consent of all the parties, so we need not express any opinion, as to whether the State Legislative Authority can enact a law on the basis of consent of parties. (2). The impugned Act had not been enacted on the basis of any classification. We need not therefore consider the question of rational classification. (3). The impugned Act infringes Article 14, inasmuch as it dismisses the claims of petitioners. (4). The impugned Act is ultra vires, as it tabes away the property of the petitioners viz., decree, in contravention of Article 31 of the Constitution.). It is not valid as it infringes the rights of the petitioners to hold property accruing to them under the decree as per Article 19(f) of the Constitution. The result of the above discussion is that the impugned Act is declared void so far as it relates to the claims and rights of the petitioners, and I hold accordingly. The property in dispute, it is stated, is in the possession of Board of Trustees who will act naturally according to the directions of law and they will not do anything harmful to the interests of the petitioners as I have held the impugned Act to be void as above. Respondent 2 has stated in his reply that he will carry out the orders of this Court. No writ of prohibition is therefore necessary.
Siddiqui, J.:— I agree.
Deshpande, J.:— I agree.
33. By the Court— Leave to appeal granted under Article 132 of the Constitution as the case involves a substantial question of law as to the interpretation of the Constitution.
34. Order accordingly.