Abdul Fatah Khan vs The Government of Hyderabad and Others

Shripatrao Palnitkar, C.J.—I have had the advantage of perusing the judgment prepared by my learned colleague Mond. Ahmed Ansari, J. and I agree with the conclusions arrived at by him that the Writs of Certiorari and prohibition be issued as prayed for. As the matter involves the determination of questions of some importance, I would like to express my own views in the matter.

The facts of the case have been narrated in sufficient detail in the judgment of my learned brother. The question to be decided is whether in view of the provisions of the Constitution, the Special Commission constituted by H. E. H. the Nizam prior to the commencement of the Constitution can now function.

The Commission was ordained to hold a two-fold enquiry: (1) to make enquiry regarding the distribution of the personal estate of the deceased Nawab Sultan-ul-Mulk, and (2) to make enquiry into the Jagir property. The terms of reference of the Commission are as follows:

to determine the persons entitled to inherit Sultan-ul-Mulk''s share in the income of the estate and the respective shares of these persons;

to submit a recommendation regarding the person (being one of the share-holders in the income from the estate) who should be appointed Amir-i-Paigah;

to submit a recommendation on the question whether a special grant from the assets of the estate should be made to Abdul Pateh Khan, the eldest son of Sultan-ul-Mulk to compensate him for the smallness of the allowance hitherto enjoyed by him from the estate in comparison with the allowances awarded to his younger brothers; and

to determine the succession to the personal property left by Sultan-ul-Mulk which is said to be extremely valuable.

Thus it is clear from the terms of reference that it was to enquire into and report its recommendations with regard to both the Jagir property and the personal property of the late Nawab Sultan-ul-Mulk. After the constitution of the Commission, the Hyderabad (Abolition of Jagirs) Regulation No. LXIX of 1358 F. came into force by which all the Jagirs in this State were abolished. Section 4 of the Regulation clearly lays down that after its commencement no person shall be appointed or recognised as a jagirdar whether la succession to a deceased jagirdar or otherwise. Thus, Clause (2) of the terms of reference which invites recommendations with regard to the person who should be appointed Amir-i-Paigah (jagirdar) has become infructuous as no jagirdar could be appointed or recognised after the above Regulation came into force.

The Commission cannot now function after the commencement of the Constitution for the purposes of determining the succession to the personal property left by the late Sultan-ul-Mulk. The Commission as originally constituted was Intended to provide a factual background upon which H. E. H. the Nizam as the absolute monarch of the State could pass such order as he felt proper. He could appoint any person he liked as an heir to the said Nawab and as jagirdar, irrespective of the recommendations of the Commission. Even with regard to the private (property 2) he exercised unrestricted powers regardless of the fact whether they were in accordance with the principles of judicial rights or not. That was tolerated as fee was the absolute ruler of the Dominions and could do what he liked, and to that extent the civil courts ceased to function. After the commencement of the Constitution this cannot be allowed, as it is violative of Article 14 of the Constitution and the right of the Petitioner to get his claim to succession of the property of the deceased decided in a civil court, which is available to the citizens of the State, cannot be denied.

The Commission is not a civil court: it has no powers to pronounce final judgments and to frame a decree on its basis or to execute the same. It was merely a reporting and recommendatory body which submitted its recommendations for the final sanction of H. E. K. the Nizam. Thus, it is not a civil court. I have stated in the case of �''Mehbub Begum v. Hyderabad State AIR 1951 Hyd 1 that

Article 14 means that all persons should have a like access to the courts of the country for the protection of their poisons and property, the preventiol? and redress of their wrongs and the enforcement of contracts.

I have discussed the question in detail in that case and it is not necessary to repeat the reasonings given therein. Thus after the commencement of the Constitution, the Commission is not competent to determine the succession to the personal property of the late Nawab.

After the abolition of the jagirs under the Regulation, the annual net income of the jagir was to be distributed among the jagirdars and ''hissedars'' in the proportion to which they were entitled. Section 21, Clause (2) of the Regulation provides that all claims to a jagir or to any share in the income thereof, whether arising under the Regulation or otherwise, shall be filed in and decided by the appropriate civil court. Thus, even with regard to the share of income from the jagir of the deceased under the Regulation, a claim by any claimant would be decided by a civil court and in accordance with his personal law. It was argued that the proviso to this Section saves the proceedings before the Commission and to that extent the claimants cannot go to the civil court. The proviso to Clause (2), Section 21 reads as follow:

Provided that any proceeding pending at the commencement of this Regulation before an Atiyat Court or before a Commission or any other authority, shall be completed in accordance with the existing law as if this Regulation i had not been enacted.

I am of the opinion that this proviso is inconsistent with the Constitution and therefore ''ultra virus. The Regulation, it should be remembered, was enacted before the commencement of the Constitution when the absolute monarchical powers of the Nizam were still in existence. Thus, while making all claims relating to the income of a jagir. or to any share thereof subjects of enquiry by the civil court, the Regulation sought to save such cases as were already pending before the Atiyat court or before any of the Commissions and they were to complete the same in accordance with the existing law. "Existing law" has been defined as to include atiyat law, custom or usage having the force of law and the terms of any grant. Atiwat law is the name given to the various firmans'' and orders of the Nizam, absolute monarchy as he then was. The basis of all aliyat law is the ''firman'' of the Nizam in Circular No. 17 of 1312 Fasli, printed in Muzmua-i-Gashtiat Malguzari, at page 145, which ordains that his will, will be the absolute and last word on the question as to who should be the next jagirdar after the death: of the last holder of the jagir. Thus, really speaking, it was not a law based on any strict legal principles or embodying any particular enactment. Every time he issued any order, that was law. It meant, according to modern idea of jurisprudence, that the did what he willed. After the coming into force of the Constitution, the Nizam is no longer the absolute monarch of the Hyderabad State; he is only the Governor or Raj Pramukh. Hyderabad State is no longer a unit outside the Republic of India but is a part and parcel of it.

The proviso to Clause (2) Section 21 of the Regulation maintained intact the absolute and monarchical powers of the Nizam to sanction or to disallow the recommendations of the Commission or to do whatever he liked or to pass any orders that he deemed fit with regard to the subject-matter in dispute regarding which the Commission was to make its recommendations. Such absolute powers are not available to the Raj "Pramukh, that H.E.H. the Nizam is at present, nor are such powers claimed. Under Article 154 of file Constitution, the executive, power of the State is vested in the Raj Pramukh and shall be exercised by him directly or through officers subordinate to him in accordance with the Constitution. Nowhere in the Constitution, has it been laid down that the Governor or Raj Pramukh shall exercise the absolute powers to declare any claimant as the heir to the property of the deceased or to a share in the property of the deceased. That was possible only to an absolute monarch as H.E.H. the Nizam was, before the advent of the Constitution, as he was supposed to be the fountain and source of all law and justice. Thus, the proviso which tries to restore absolute powers to the Nizam is contrary to the terms of Article 154 of the Constitution and is, therefore, violative of the Constitution.

It was argued that Article 162 defines the �limits of the executive powers of the State and lays clown that the executive powers of the state shall extend to the matters with respect to which the legislature of the state has powers to make laws. I am of the opinion that the legislature of the state has no power to make a law with regard to the succession of any particular individual. It cannot decide the question by a legislation as to who are the heirs, of the late Sultan-ul-Mulk. I have discussed the question in detail in the case of Mehbub Begum, referred to above (AIR 1951 Hyd1). In fact, if it were to be held that the Nizam can. exercise" absolute monarchical powers with regard to the limited number of cases specified by the proviso to Clause 2, Section 21 of the Regulation, it would mean to that extent the negation of the Republican Constitution of India and restore to that extent his absolute powers, which is clearly in contravention of the Constitution. The proviso is therefore void.

It was also argued that the Regulation has been validated by Article 31 (B) of the Constitution and therefore the proviso referred to above should not be deemed or declared ultra vires''. I do not agree with this contention. Article 31 (b) validates the Hyderabad (Abolition of Jagirs) Regulation in so far as Part III of the Constitution is concerned. Part III of the Constitution deals with fundamental rights and the purpose of Article 31 (A) and (B) was to validate the Jagir Abolition Regulation in so far as it extinguished the alleged rights of the jagirdars to the jagirs, but the question in this case which is as to the interpretation of the proviso does not relate to the modification or extinguishment of the rights of the jagirdars with regard to their jagirs, but it relates to the method or mode of enquiry regarding the rights of the parties. Even supposing that the Commision is a special body or tribunal, it cannot function after the commencement of the Constitution in. view of the ruling of the Supreme Court in �- Lachmandas Kewalram Ahuja and Another Vs. The State of Bombay, . This question has been discussed in detail by my learned Colleagues.

In the result, I am of the opinion that the Commission cannot function after the Constitution. The Writs of Certiorari and Prohibition should, therefore, be issued to quash the proceedings and to prohibit the Commission from, continuing them.

SHRINIVASA CHARI. J.: I agree with my learned brothers that this application for the issue of a Writ of Certiorari and a Writ of Prohibition should be granted and further proceedings'' before the Commission constituted for enquiring into the succession to the estate of the late Nawab Sultau-ul-mulk be prohibited on the ground that it can no longer continue to function as it violates Article 14 of the Constitution.

As the case has been referred to a Pull Bench and the question:, involved in the case are of some importance, I desire to add a few words of my own to the judgment of my Lord the Chief Justice and Mohammed Ahmed Ansari, J.

As the sequence of the events show, the Nawab died on 11th March 1949 and a Firman was issued by H.E.H. the Nizam, constituting a Commission to enquire and report as to who were the heirs of the late Sultan-ul-mulk so far as his jagir was concerned and also in so far as his personal properties are concerned. The terms of reference which were sent to the Commission also show that the commission was called upon to enquire and report about the heirs to his jagir as well as to his other property. After the Firman was issued & before the Commission actually started proceedings in the case, the Hyderabad (Abolition of Jagirs) Regulation, Regulation LXIX of 1358 P. was passed and it came into force on the 15th of August 1949. Under this Regulation, all jagirs were abolished and there was no longer any necessity for recognising any person as the holder of the jagir, but such of those persons as were entitled to succeed to the estate of the deceased jagirdar were to be paid compensation according to the share they were entitled to under their personal law. It only came to be a matter of payment of compensation according to the shares of the respective heirs of the late jagirdar. In this Regulation, however, there was a saving clause inserted under which it was provided that such of those proceedings relating to the jagir lands which were pending on the date of the coming into force of the Regulation were to be completed according to the existing law.

Relying upon this provision in the Regulation, the Advocate-General argued that inasmuch as the Firman was issued by H.E.H. the Nizam long before the coming into force of the Regulation, the proceedings in this case must be deemed to have started immediately after the issuing of the Firman and they must be held to have been pending on the date of the coming into force of the Regulation, & as such, in so far as the enquiry into the succession to the jagir property was concerned, they should be completed according to the existing law, that is to say, the Commission would have to continue its enquiry and submit its report to H.E.H. the Nizam, for, the existing law, so far as the atiyat property is concerned, required any report or recommendation of a body constituted for the purpose of enquiring into the succession of a jagirdar to be confirmed and sanctioned by H.E.H. the Nizam.

Straightaway, the argument of the Advocate General may be rejected, because the proceedings of the Commission would show that it was not until the 10th November 1943 that they started their deliberations and the parties made their first appearance. The proceedings would be deemed to have started only where the parties invoke the jurisdiction of the court by filing a statement of their claim 2; in this case admittedly the parties filed their statement of claim after the 15th of August 1949. Therefore, by no stretch of imagination could it be said that the proceedings in this case were pending at the time of the coming into force of the Jagir Abolition Regulation. It would, therefore, follow that the proviso to Section 21(2) under which all pending proceedings had to be completed according to the existing law cannot apply to this case. If the proviso did not apply then the only provision that can apply to this case is Section 21(2) which runs as follows:

All claims relating to a jagir or to any share in the income thereof, whether arising under this Regulation or otherwise, shall subject to this Regulation but notwithstanding any existing law, lie filed in, and deckled by, the appropriate civil Court.

This is so far as the atiyat or jagir property is concerned.

The question arises as to whether the Commission could continue to hold its enquiry. In this connection, it may be observed that besides the statutory law that was prevalent in Hyderabad the Firman that H.E.H. the Nizam usually issued had also the force of law. Therefore if under a law which was validly passed by H.E.H. the Nizam, namely, the issuing of a Firman, this Court was constituted, its constitution could not be held to be invalid unless it was inconsistent with any of the provisions of the Constitution or violated any of the principles enunciated in part 3 of the Constitution. In this case, it was urged that there was a flagrant violation of an important principle of Law and Procedure. It was urged that some of the procedural rights, that a person would be entitled to before the ordinary courts, were denied to the parties before the commission. It was said that there was no right of appeal provided against the orders of the tribunal because it was only a recommendatory body. It was also urged that the right to move for transfer which a litigant enjoyed in the ordinary courts was also denied and above all it was stated that this body was not competent to frame a decree which was executable which the parties would be entitled to get in an ordinary Court.

There is much force in this argument. Therefore, oven if this Commission could be regarded as a validly constituted court according to the law that was extant then (because the Nizam had always the power to constitute tribunals and commissions for the purpose of enquiry into the succession to the estate of any jagirdar), it cannot survive after the coming into force of the Constitution because it deprived the parties of certain important procedural rights and this amounted to a discrimination between persons before an ordinary Court and the parties now before the Commission; and after the coming into force of the Constitution in view of the provisions of Article 14 such a discrimination cannot be countenanced. That this is the settled law is well established by the judgment of the Supreme Court in the case of � Lachmandas Kewalram Ahuja and Another Vs. The State of Bombay, No doubt discrimination could bo allowed if such discrimination was made with reason, that is to say, if there was a classification made of persons going before an ordinary court and those going before a special Commission or Tribunal on a reasonable and understandable basis and with an avowed object.

In this connection the observations of Fazl Ali, J. in the case of � Kathi Raning Rawat Vs. The State of Saurashtra, would fee in point. It was held by the Supreme Court in the first case referred to viz., the case of � ''Lakshmandas Kevalram v. The State of Bombay that immediately the Constitution came into force any discriminatory procedure adopted by a tribunal or a commission could not stand and forthwith such commission ceased to have any jurisdiction. The proceedings before the commission is quashed. For all the above reasons, I am of opinion that a writ of Prohibition should issue prohibiting the Commission to continue its proceedings hereafter.

M. A. ANSARI J.: This appln. for the Writs of Certiorari, Prohibition and Mandamus has been filed by one Abdul Patch Khan to stop continuance of the enquiry by a Special Commission into matters relating to the estate of late Nawab Sul-tan-Ul-Mulk. The applicant is a son of the deceased, who was the Amir of a big jagir estate known as the Vikar-Ul-Umara-c-Paigah. The late Amir being of unsound mind, the estate was managed by different authorities under the orders of H. E. H. the Nizam till the Amir''s death on March 11, 1949, and for the few months prior to the filing of this application, the management has been under the Court of Wards. By a Firman of Shaban 4, 1368 H. (June 2, 1949) a Special Commission consisting of Qumar Hassan J. and Manoher Pershad J. was appointed to make enquiry regarding distribution of the personal estate of the deceased and other matters pertaining to the Paigah. The Government Notification relating to the Commission is No. 4 of Aban 5, 1358 Fasli (Sept. 6, 1949) and was published in the Jarida (Hyderabad Gazette) of Aban 12, 1358 Fasli (September 12, 1949).

The terms of reference of the Commission are:

(i) To determine the persons entitled to inherit Sultan-ul-Mulk''s share in the income of the estate and the respective shares of those persons;

(ii) to submit a recommendation regarding the person (being one of the share-holders in the income from the estate) who should be appointed Amir-e-Paigah;

(iii) to submit a recommendation on the question whether a special grant from the assets of the estate should be made to Abdul Patch Khan, the eldest son of Sultan-ul-Mulk, to compensate him for the smallness of the allowance hitherto enjoyed by him from the income of the estate in comparison with the allowances awarded to his younger brothers; and

(iv) to determine the succession to the person or property left by Sultan-ul-Mulk, which is said to be extremely valuable.

In between the dates of the Firman appointing the Commission and the publication of the Notification in the Jarida, the Jagirs Abolition Regulation (hereinafter referred to as the Regulation) came into force on Mehir 15, 1358 P. (August 15, 1949). Because of the provisions of the Regulation not only the enquiry by the Commission relating to the appointment of an Amir of the Paigah has become infructuous, but also the entire prerogative of H. E. H. the Nizam relating to the re-grants of Jagirs or determining of persons who should get shares in them having been converted into statutory powers, the executive cannot thereafter claim to do what is not permitted by it. I have therefore to ascertain how far the proceedings before the Commission are covered by the Regulation, and if I come to the conclusion that it is not. there remains no authority in the executive of this State to accept recommendations of the Commission or to enforce them.

The period of six weeks from the date of the publication of the Notification expired on October 4, 1949, and the Commission first met on November 10, 1949, when 23 parties filed their claim petitions. On the request of some of the parties, who could not submit their claim, a fortnight''s adjournment was allowed and hearing posted to November 24, 1949 when some fresh claim petitions as well as replies were filed. The Commission then adjourned to December 8, 1949, and on this date a further adjournment of fourteen days was on the request of the parties that they could not file replies for want of copies of the claim petitions of other parties allowed. Thereafter, the Commission continued the enquiry and the evidence before it began to be recorded after the inauguration of the Constitution. When the petition in this Court was filed on February 10, 1951, praying for the quashing of the proceedings the case was at the argument stage and recommendations have yet to be made. Even on the assumption that H. E. H. the Nizam had some prerogative power to order enquiry by Special Commission about the succession to the personal properties of the deceased it is obvious that the Rajpramukh cannot after January 25, 1950, exercise any kingly powers to sanctioning such recommendation & this enquiry ordered earlier cannot after the Constitution be continued if it infringes the fundamental rights under it.

The grounds for quashing the proceedings given in the application are that the Commission is not vested with judicial powers of finally adjudicating upon the claims of the various parties, for its recommendations to the Government may be accepted or rejected; it has no power of calling witnesses, appointing receivers, issuing interlocutory orders, or directing any other acts to safe-guard the claims of the parties, and thereby normal course of law under which ordinary claimant can seek redress has been taken away from him. In paragraph 9, it is claimed that after the inauguration of the Constitution, the Commission appointed under the Royal prerogative of the Nizam has no legal status, nor power to adjudicate upon the private property of the deceased, nor computation (sic) amount of the Paigah, the Government cannot give effect. to its recommendations, nor distribute, partition or allot property of any kind; after the Constitution, the continuation of such a Special Commission is violative of Article 14, inasmuch as it deprives the applicant of his right to resort to ordinary Court with general procedure and also of his right of appeal if his claim as an heir is denied by the recommendations of the Commission.

Ten persons have been impleaded as the opposite parties to the application. The State of Hyderabad is No. 1, the next two are the members of the Commission and the remaining seven are other relatives of the applicant. The proceedings of this application as against the members of the Commission, Nos. 2 and 3, Rashid Nawaz Jung No. 9, who was impleaded on grounds of his claim as Amir-e-Paigah on the basis of a Firman, as well as against Nawab Begum No. 10, are ex parte. Musaffar Nawaz Jung, No. 4 and Hassan Yar Jung, No. 8, through the Custodian of Evacuee Property do not oppose the application. Those who seek continuance of the enquiry are the Government No. 1, Farid Nawaz Jung, No. 5, Nazir Jung and Khair Nawaz Jung, Nos. 6 and 7. Their objections are contained in three replies: one is by the Government, another by No. 5 and a third by Nos. 6 and 7.

These objections may be summarised as follows:

(i) Prior to the Constitution, whenever a nobleman, who had been the holder of a Crown Grant died, the Nizam having exclusive jurisdiction over Crown Grants appointed a Special Commission to investigate questions of his succession and the Commission''s findings with the approval of the Ruler had force of a decree; Sultan-ui-Mulk being such a nobleman, the Commission appointed to investigate his succession prior to the enforcement of the Constitution is valid.

(ii) Atiyat law is different and holder of the Atiyat properties had no right to have questions of succession, adjudicated by ordinary Civil Court, but only Atiyat Courts constituted by H. E. H. the Nizam can decide them; this existing law has been continued by Article 3,72 of the Constitution, there is no arbitrary classification inasmuch as all holders of the Atiyat properties are treated alike and no person is deprived of any right or has been discriminated against. As regards non-atiyat properties inasmuch as they grew out of the Atiyat properties, enquiries by Special Tribunals are not without rational classification.

(iii) The petition is not bona fide as the applicant endeavoured to have a special Tribunal appointed and has been guilty of extraordinary delay in taking steps to stop the proceedings; for one year after the Constitution he has submitted to the Commission''s jurisdiction.

(iv) Farid Nawaz Jung''s reply says that even after the Constitution the Nizam''s earlier Firman appointing the Commission, having regard to the past, history of the particular estate, was valid.

That history has been given in paragraph 19 of the third statement that after the death of Sir Vicar-ul-Umara, the father of the deceased, on Farwardi 14, 1311 Fasli (February 15, 1902) Sultan ul-Mulk was given temporary charge of the Paigah; when he became mentally deranged in 1316 Fasli (1906-1907) his mother was directed to manage the estate, later it was taken under the direct control of H.E.H. the Nizam and Sir Bryne Egerton was appointed as the Superintendent; in 1336 P. (1926-1927) the deceased was declared Amir-e-Paigah, and being still under mental disability a Committee of Trustees was appointed to manage under the direct supervision of the Nizam, in 1338 Fasli (1928-1929) a Board of Trust was constituted as his guardian which did its work under the supervision of H.E.H. the Nizam; when Sultan-ul-Mulk died, representations were made to H.E.H. the Nizam for handing over of the private properties & for the declaration of the Amirship; thereupon the present Commission was appointed; the Ruler is supposed to hand over the property to the rightful successor and to decide who is such a person; a dispute about the legitimacy of some of the claimants having arisen the Firman was issued.

Obviously, the Commission is an ad-hoc Tribunal enquiring into the rights of the persons who claim to be entitled to the estate of the deceased, and its findings in order to be operative require some sanction either by the Government of this State or of the Centre. Whatever may have been the past legal position neither Government can give effect to the Commission''s recommendations unless they are legally authorised to do so. Any appeal to the past practice, as has been made in the reply of the Government, appears to me of no substance. For the executive of this State prior to the inauguration of the Constitution enjoyed large prerogative powers which were specially resorted to in cases of granting jagirs to the heirs of the deceased jagirdars. Such unlimited prerogative powers do not survive the Constitution, Even before the inauguration of the Constitution these powers have been merged in the Regulation and could not exist independently. This view I have taken in Kamal Yar jungs succession case and 1 see no reason to change it.

Therefore, after Mehir 15, 1358 Fasli (August 15, 1949) and so far as the compensations to persons interested in jagir tenures or ascertaining of persons entitled to it are concerned, the executive of this State could not claim to do things which are not authorised by the Regulation; unless the power to investigate claims by a Commission or to give effect to its findings be held to be covered by the provisions of the Regulation it cannot exist in the executive of this State. The replies to the application have this one common error, that they pay inadequate attention to the provisions of the Regulation. The fact that the Commission was appointed before the enactment of the Regulation is not material, as its recommendations have yet to be made; the sanction by the Government will certainly take place afterwards, and Sub-section (2) of Section 21 makes the provision of the Regulation by implication retrospective except in cases covered by its proviso. The proviso in my opinion does not apply to the Commission. Then if this Commission is not under the Regulation, the Firman appointing the Commission must not be discriminatory and the power to sanction its recommendation does not survive the Constitution; for there is no such thing as prerogative rights under our republican Constitution.

The provision of the Regulation relating to enquiries about questions of successions to compensations for jagir tenures is contained in Sub-section (2) of Section 21, which reads as follows:

(2) All claims relating to a jagir or to any share in the income thereof, whether arising under this Regulation or otherwise, shall subject to this Regulation, but notwithstanding any existing law bo filed and decided by the appropriate civil Court;

Provided that any proceeding pending at the commencement of this Regulation before any Atiyat Court or before a Commission or any other authority shall be completed in accordance with the existing law as if this Regulation had not been enacted.

It was argued that; the proceeding before this Commission is a pending one and covered by the proviso. I think this argument is without substance. Although the Firman appointing the Commission is of June 2, 1949, the Notification asking the claimants to appear was published in the jarida of Aban 12, 1359 Fasli (September 12, 1949) which means that no claimant appeared before the Commission till some days after the coming into force of the Regulation. I have already mentioned in the beginning of this judgment that the Commission met for the first time on November 10, 1949, and the claims before it began to be filed then and after that date. Unless I come to the conclusion that the creation of the Commisssion amounts to initiating proceedings before it, the proviso to the Regulation obviously does not govern the Commission. Now, creating and invoking of jurisdiction are two different things and the invoking takes place only whore some one appears and prays for the exercise, of the particular jurisdiction only when proceedings can generally be said to begin before it. For example, Atiyat Courts were created to determine matters relating to Jagir tenures long before the Regulation was passed and yet the proviso to Sub-section (2) cannot be construed to save their jurisdiction as regards such claims as were not before them when it became operative.

If such future claims before the general Courts are not saved, much less should future proceedings before the Special Tribunal. Ali that the proviso means is that such disputes as were begun and were pending before Special Tribunals or Atiyat Courts must be finally adjudicated. As claims were filed in the Commission alter the Regulation has been enforced, I 1hold that the proceeding of the Commission cannot be considered to be a pending one for the purposes of the proviso to Section 21.

The result is that Commission is not covered [by the proviso and there is no power in the executive to sanction the finding of the Commission.

Then it was argued that, the Commission | consisting of two High court Judges is a civil Court. This argument also cannot be accepted. To constitute it as a civil Court, its recommendations must be operative as judgments, it can pass a decree which should be subject of appeal to the High Court, and should be executable. None of these things exists and the result is that it is a court with the peculiar defect of no power of making a decree, of appeal to the High Court and no authority to whom application can be made for the execution of its degree. The application has justifiably claimed that a Court with seen defects is not one contemplated by Sub-section (2) of Section 21 of the Regulation.

The Commission not being covered by the Regulation, I have next to ascertain whether the proceedings can after the inauguration of the Constitution be continued. In other words, I have to decide whether the object of the Firman was to confer certain privileges on some only and if that be the object, whether it was based en some rational classification; for Article 14 of the Constitution bars creating of special privileges for some, just as it forbids making the liabilities of a few heavier. Respondents Nos. 6 and 7 have given a long history of their family apparently to show that its. past. history justified special treatment. I do not think that is a rational ground of classification. After the inauguration of the Constitution, which is republican, the privileges enjoyed by persons because of association with a particular family are not reasonable. That would amount to bringing in monarchical notion of privileged classes.

It may well be asked why should the persons who happen to be the heirs of Sultan-ul-Mulk not seek their relief in a Court of Law. Why should two Judges of this High Court determine their disputes in the absolute form of no appeal? The only answer that can be given is that because they happen to belong to a family which had in the past enjoyed special privileges conferred upon by the former Ruler of the State, which means continuance of privileges because of birth. If such privileges be construed as based on rational basis what is the nexus between it and the uncontrolled discretion in the executive about giving or withholding of sanction? I feel that past association with the ruling family or conferring of privileges in past can be reasonable basis of classification and Article 14 of the Constitution is infringed.

I do not think any substantive argument can be built on the fact that the Petitioner himself continued to appear before the Commission and conducted his case for a long time after the inauguration of the Constitution. The case of � K.P. Mushran Vs. B.C. Patil and Another, is an authority that discriminatory proceeding after the inauguration of the Constitution is void, and therefore, submitting tot void jurisdiction is no ground for disallowing application to prohibit continuance of such proceedings. No amount of laches or acquiescence has become unconstitutional because it is violative of Article 14. I therefore set aside all proceedings and orders by the Commission that have taken place after January 20, 1950, and prohibit its further continuance. The application is accordingly allowed and the Writs of Certiorari and Prohibition be issued, accordingly.