1. Petition for writ of mandamus for recovery of possession of a religious shrine and lands held in abeyance by a sovereign decree pending civil enquiry. (Para 1 , 3 , 7 , 9 )
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1955 Supreme(SC) 47
SUPREME COURT OF INDIA
22nd April, 1955.
B.K. MUKHERJEA, C.J.I., BOSE, JAGANNADHA DAS, VENKATARAMA AYYAR AND IMAM, JJ.
Director of Endowments, Government of Hyderabad and others, Appellants
Versus
Akaram Ali, Respondent.
Civil Appeal No. 19 of 1955.
Advocates appeared
Mr. M. C. Setalvad, Attorney-General for India and Mr. N. S. Raghavan, Advocate-General, for the State of Hyderabad (Mr. Sadashivrao, Mr. Porus A. Mehta and Mr. P. G. Gokhale, Advocates, with him), for Appellants. Mr. Attaur Rahman, Senior Advocate (Mr. B.K.B. Naidu and Mr. I. N. Shroff, Advocates, with him), for Respondent.
Advocates:
Atiqur Rehman, B.K.B.Naidu, I.M.SHROFF, M.C.SETALVAD, N.S.RAGHAVAN, P.G.COKHALE, PARAS A.MEHTA, Sadashiv Rao
Atiqur Rehman, B.K.B.Naidu, I.M.SHROFF, M.C.SETALVAD, N.S.RAGHAVAN, P.G.COKHALE, PARAS A.MEHTA, Sadashiv Rao
The Constitution guarantees rights as they existed at its commencement and does not revive rights held in abeyance by valid pre-constitutional sovereign orders. A writ of mandamus for possession requires a present legal right, which cannot be claimed if a prior legal bar remains unsatisfied.
Headnote:(A) Constitution of India - Article 226 - Writ of Mandamus - Right to possession - A writ of mandamus cannot be issued in the absence of a present legal right to possession. (Para 6)
(B) Constitution of India - Article 13(1) - Effect of Constitution on pre-existing laws - The Constitution guarantees rights as they existed at the date of its commencement; it does not revive rights that were legally extinguished or held in abeyance by a valid order of a sovereign ruler prior to the Constitution. (Paras 11, 12)
(C) Sovereign Orders - Orders issued by an absolute ruler have the combined effect of law and a court decree. (Para 10)
Facts of the case:
A petition was filed for a writ of mandamus to recover possession of a religious shrine and associated lands. The respondent claimed hereditary rights as a manager. However, a sovereign order issued in 1920 had placed the property under government supervision pending an enquiry into the rights of the claimants. The respondent argued that the sovereign order became invalid after the Constitution came into force and that civil court proceedings had concluded in his favor.
Findings of Court:
The court found that the sovereign order issued by the absolute ruler was law and held the right to possession in abeyance until established in a civil court. The Constitution did not revive such rights. Furthermore, the civil court's final judgment did not declare the respondent's right to possession, as the hereditary office was not proved by any party.
Issues: Whether a writ of mandamus could be issued for possession when a pre-constitutional sovereign order held such rights in abeyance pending a civil court's determination, and whether the advent of the Constitution revived those rights.
Ratio Decidendi: The Constitution guarantees only those rights that a citizen possessed at the date it came into force; it does not alter or add to them. If a valid sovereign order prior to the Constitution held a right in abeyance, that status continues unless a subsequent court order removes the bar. Without a present legal right to possession established by a competent court, a writ of mandamus cannot be issued. (Paras 11, 12, 16)
Result: Appeal allowed.
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Table of Contents
2. Whether a sovereign decree suspending possession remains valid post-Constitution and whether the failure of a third party's claim restores possession to the petitioner. (Para 3 , 4 , 16 )
3. A sovereign's decree holding rights in abeyance remains effective post-Constitution as the Constitution guarantees only rights existing at its commencement and does not revive lost rights. (Para 10 , 11 , 12 , 13 )
4. A writ of mandamus cannot be issued without a present legal right to possession, which must be established in civil court if previously held in abeyance. (Para 6 , 16 )
5. Appeal allowed; High Court decision set aside and petition for writ dismissed. (Para 17 )
6. Does a decree issued by an absolute ruler before the Constitution continue to operate after the Constitution comes into force?
Yes. The Constitution guarantees only those rights a citizen possessed at the date it came into force; it does not alter or add to them, nor does it revive rights that were legally taken away or held in abeyance by a prior sovereign decree. (Para 11 , 12 )
7. Can a writ of mandamus be issued for possession if the right to that possession is currently held in abeyance?
No. A writ of mandamus cannot be issued unless the petitioner has a present right to possession. If such rights were held in abeyance pending a civil court enquiry, they must be established in court before the writ can be granted. (Para 6 , 16 )
8. What is the effect of Article 13(1) on laws that would be invalid if passed after the Constitution?
Article 13(1) does not obliterate the entire operation of inconsistent laws or wipe them out retrospectively. Such laws remain valid for all past transactions and for enforcing rights and liabilities that accrued before the Constitution. (Para 13 )
Judgement
BOSE, J. : The respondent filed a petition under Art. 226 of the Constitution in the High Court of Judicature at Hyderabad asking for a mandamus against the Director of Endowments of the Hyderabad Government. His prayer was that the Director be ordered to hand over the management and possession of a certain Dargah called the Dargah of Jehangir and Burhan-ud-din Piran and also the adjoining "hereditary lands", together with the income and profits, to the respondent.
2. The High Court granted the writ and the State of Hyderabad appeals.
3. The respondent s case is that the Dargah contains the tomb of one of his ancestors and that he and his ancestors have been the hereditary Sajjadas and Mutawallis of the Dargah for generations. In the year 1914, when the respondent s brother Syed Hussain was in possession, the Ecclesiastical Department of the State stepped in and entrusted the supervision of the Dargah to one Azam Ali.
He was removed in 1920 and the Ecclesiastical Department took over the supervision under a Firman of the Nazim which directed the Department to supervise the Dargah until the rights of the parties have been enquired into and decided. The respondent states that these rights were investigated by the civil Courts. The matter went up to the High Court and the decision all through was in his favour. Despite this has not been given possession and he seeks a mandamus against the Director and asks that the Director be ordered to hand over the management and possession to him.
4. The High Court granted his prayer. Shripat Rao, J. held that the Firman of the Nazim ceased to be valid after the Constitution, therefore the possession of Government after the date was unlawful. He also held that the Ecclesiastical Department took possession from the respondent and so it was bound to hand the Dargah back to him. The other learned Judge Mir Siadat Ali Khan, J. held that the Firman had served its purpose, therefore as the Dargah was not wakf property, supervision of the Department should be brought to an end.
Consequently, as the respondent s opponent was worsted in the civil litigation, and as the respondent had been out of possession for a generation and so could be assumed to have learnt a lesson, he should be placed in possession.
5. The learned Attorney-General, who appeared for the appellants challenged the accuracy of most of the facts on which the learned High Court Judges found but we do not think it necessary to go into that. We were taken through the documents in great detail by the respondent s learned counsel and he sought to establish from them his possession and that of his ancestors for generations, and also that the Ecclesiastical Department took over possession from him.
He also said that his descent from at least Syed Mir Saheb, his grandfather, was proved and that it was also established that Syed Mir Saheb was a hereditary Sajjada of the Dargah. All this is, in our opinion, beside the point. The petition and the appeal can be disposed of very shortly on another ground.
6. We do not intend to say anything about the facts of title and possession lest it prejudice further litigation, should there be any. We will assume, without deciding, that all that the respondent says about his hereditary rights and his possession is true. But whether he was in possession or not whatever rights to possession he may have had were held in abeyance by the Firman of 31-12-1920 and there is no subsequent order of the Civil Courts removing the bar.
Therefore, as he has no present right to possession, no mandamus can be issued. We do not mean to imply that writ would be the appropriate remedy if and when the respondent can establish a right to possession : that is a question that does not arise because in fact he has no present right to possession.
7. The facts that led up to the passing of the Firman are as follows. Disputes about the right to possession and supervision of the Dargah seem to have started about the year 1914,
