Supreme Court Upholds Maintainability of Article 32 Petitions Challenging Madras Marumakkathayam (Removal of Doubts) Act, 1955; Preliminary Objections Rejected. Legislative Declaration That Certain Sthanam Properties Are Tarwad Properties Automatically Infringes Property Rights, Permitting Immediate Constitutional Challenge Under Article 32 Despite Existence of Alternative Remedies and Disputed Facts.

Original petitions under Article 32 of Constitution for enforcement of fundamental rights, challenging constitutional validity of Madras Marumakkathayam (Removal of Doubts) Act, 1955 and seeking writ to forbear enforcement.

Petitioners sought a writ of mandamus or any other writ or order directing respondents to forbear from enforcing the impugned Act against the sthanee and sthanam estate and declaring the Act unconstitutional and invalid.

Immediately after publication of the Act, junior members published notices that Kavalappara estate had become tarwad property and that donees under gift deeds were not entitled; one respondent filed a partition suit and others contemplated doing the same; petitioners alleged fundamental rights were infringed by the legislative Act.

In earlier litigation, O.S. No. 46 of 1934 filed by junior members (respondents 10-17) for declaration that properties were tarwad properties was dismissed by Subordinate Judge on 1938-02-26; Madras High Court allowed appeal and decreed suit on 1943-04-09 (Kuttan Unni v. Kochunni); Privy Council reversed High Court and restored dismissal on 1947-07-29. Also, earlier registration of Kavalappara tarwad as impartible was challenged before High Court, which declined writ on ground sthanee had no real grievance.

Whether petitions under Article 32 were maintainable when an adequate alternative remedy (partition suit) existed? Whether infringement of right to property by private individuals falls under Articles 19(1)(f) or 31(1) and whether Article 32 remedy is available against a State Legislature? Whether an Article 32 petition was maintainable before the State had taken or threatened to take any action under the impugned law? Whether a proceeding under Article 32 could be converted into a declaratory suit under Section 42 of the Specific Relief Act? Whether the Supreme Court under Article 32 could embark upon an enquiry into disputed questions of fact? Whether a petition based solely on infringement of Article 14 would be maintainable under Article 32?

Respondents contended that writ of mandamus was not maintainable because there was an adequate remedy in the partition suit filed by one of the respondents. Respondents argued that violation of right of property by private individuals was not within Article 19(1)(f) or Article 31(1) and therefore remedy under Article 32 was not available. Respondents argued 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. Respondents argued that Article 32 proceedings could not be converted into or equated with a declaratory suit under Section 42 of the Specific Relief Act. Respondents argued that the Supreme Court could not on an application under Article 32 embark upon an enquiry into disputed questions of fact. Petitioners contended that the impugned Act passed by the Madras Legislature automatically abridged their fundamental rights upon coming into force and therefore they were entitled to immediate constitutional remedy. Petitioners contended that the State included the Legislature under Article 12 and the dispute was against the State and persons claiming under a law made by the State, so Article 32 applied.

Article 32 confers a fundamental right to move the Supreme Court for enforcement of fundamental rights, which cannot be negated by the existence of an alternative remedy; a State law that automatically abridges fundamental rights upon commencement can be immediately challenged under Article 32; the Supreme Court's powers under Article 32 are not confined to prerogative writs and include making declaratory orders with consequential relief; the Court cannot decline to entertain a petition merely because it involves disputed questions of fact and may adopt appropriate procedures such as affidavits, commission, or trial on evidence; violation of property rights by private individuals alone does not attract Article 19(1)(f) or 31(1), but a challenge against a State-made law that effects such violation is maintainable.

The right to enforce a fundamental right conferred by the Constitution was itself a fundamental right guaranteed by Art. 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. Where an enactment such as the impugned Act, unlike 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 Art. 32 Of the Constitution. Article 32 of the Constitution conferred wide powers on this Court and such powers were not confined to the issuing of prerogative writs alone. This court would fail in its duty as the custodian and protector of the fundamental rights if it were to decline to entertain a petition under Art. 32 simply because it involved the determination of disputed questions of fact.

In 1934, junior members applied under Section 42 of the Madras Marumakkathayam Act, 1932 for registration of Kavalappara tarwad as impartible; Sub-Collector ordered registration despite objection of sthanee; sthanee challenged the order before Madras High Court, which declined writ on ground no real grievance. Subsequently, O.S. No. 46 of 1934 was filed by junior members (respondents 10-17) for declaration that properties were tarwad properties; Subordinate Judge dismissed suit on 1938-02-26; Madras High Court allowed appeal and decreed suit on 1943-04-09; Privy Council reversed and restored dismissal on 1947-07-29. Later, Madras Legislature passed Madras Marumakkathayam (Removal of Doubts) Act, 1955; junior members issued notices asserting rights; one respondent filed partition suit; petitioners filed Article 32 petitions challenging the Act. Preliminary objections were raised and heard by Supreme Court, which delivered judgment on 1959-03-04 rejecting preliminary objections and holding petitions maintainable.

• Constitution of India, 1950: Article 12, Article 14, Article 19(1)(f), Article 31(1), Article 32
• Madras Marumakkathayam (Removal of Doubts) Act, 1955: Section 2
• Madras Marumakkathayam Act, 1932: Section 42
• Specific Relief Act: Section 42