Tahira Begum vs State of Hyderabad and others

Palnitkar, C.J.—I have had the advantage of reading the judgments prepared by my learned colleagues, Dr. Justice Siadat Ali Khan and Mr. Justice Srinivasachari which they are about to pronounce. I agree in main with the reasoning of Siadat Ali Khan J. and the conclusions therein.

With regard to the proviso to Section 21 (2) of the Hyderabad (Abolition of Jagirs) Regulation, I have expressed my views in the case of - ''Abul Fatah Khan v. The State of Hyderabad'', (AIR 1953 Hyd 100 FB) & it is unnecessary to repeat the reasoning given therein.

Siadat Ali Khan, J.

This is the succession case of Nawab Salar Jung, Nawab Salar Jung III, grandson of the illustrious Salar June I, died on 2nd March 1949 leaving enormous private property and a big jagir. He left no issue but this did not prevent numerous persons from claiming to be his heirs. On 31st May 1949 H. E. H. the Nizam appointed a Commission consisting of Hon''ble Judges of this Court to inquire into and report on the succession of the late Nawab. The terms of reference were as follows:

Whether the jagir of Salar Jung escheated to the Government.

If not. who are heirs of Salar Jung according to the sanads of (or?) otherwise?

Who are salar Jung''s heirs to his private property and what are their respective shares?

What should be deemed to be the private property of Salar Jung which can be distributed among his heirs?

Whether the late Nawab has left any will and if so, what is the effect thereof on the questions mentioned above?

The Commission started enquiry on 19-6-1949 but a stay order was obtained by some of the claimants, and now one Tahera Begum who professes to be the sister of Husaini Begum, wife of Nawab Salar Jung II has filed an application dated 13th December 1950 for the issue of a writ of Certiorari, Mandamus and Prohibition. Her allegations are briefly that the Commission has no judicial powers and it is quite powerless against the Committee of Management established first by Regulation No. 34 of 1358 F. and continued and confirmed by the Nawab Salar Jung Bahadur (Administration of Assets) Act No. 39 of 1950 as the Committee has not carried out its orders; that even if the Commission had powers, H. E. H. the Nizam has now no powers to sanction the report of the Commission; that only the Hyderabad. Government or the Union Government could sanction the report and would thus be judge in their own cause; that enquiry by a Commission is discriminating; that the ordinary course of law under which a claimant could seek redress has been blocked and the petitioner has been deprived of her valuable right of approach to seek justice before a common court of law; that, therefore, Respondent No. 1, the Hyderabad State, and Respondents 2 and 3, the Hon''ble Judges of the High Court in their capacity of Members of the Commission, should be prohibited from proceeding further with the enquiry; that the case should be transferred to a court of law: that the Nawab Salar Jung Bahadur (Administration of Assets) Act No. 39 of 1960 should be declared void and ultra vires the Constitution of India; that the order dated 31st May 1949 under which the Commission is constituted should also be declared ultra vires and void; and that the Hyderabad State and the Committee of Management should be directed not to alienate, transfer or do any other act prejudicial to the interest of the claimant. Some other claimants also put up an appearance and they number 5 to 13 in the array of the respondents. The whole case was referred by a Division Bench to this Bench. The arguments of the learned advocate of the parties were heard at many a hearing. I record my opinion below.

As the whole case has been referred to this Bench it is not necessary to reproduce verbatim all the eight questions that the Division Bench framed in its order of reference. Briefly these questions are:

Whether the appointment of the Commission is valid or it contravenes Article 14 of the Constitution;

Whether the Commission could continue to hold enquiry after the advent of the constitution;

Whether the Commission can be deemed to be a civil court;

Whether proviso 2 to S. 21 (2) of the Jagir Abolition Regulation 1358F, covers property of a Crown Grant only or whether it extends to private property also;

Whether he said proviso is consistent with the Constitution;

Whether the application of Atiyat Law to the parties to the suit would be discriminatory;

Whether appointment of a Commission for high noblemen is not discriminating and indicative of inequality and

What is the authority that would be competent to sanction the recommendations of the Commission.

There can be no question as to the powers of H. E. H. the Nizam to appoint a Commission before the advent of the Constitution of India (hereinafter referred to as the Constitution Act). This was conceded by the Bar. It was the usual practice in the case of big noblemen. The only question, therefore, is: whether after the advent of the Constitution Act the appointment can still be deemed to be valid. The appointment and the continued enquiry by the Commission is impugned not only on the ground of discrimination forbidden by the equality clause of the Constitution Act but also on the ground that on the advent of the Constitution Act, the sovereign powers of H. E. H. the Nizam were brought to an end and, therefore, when the source became dry, the Commission cannot thrive or continue to function and it should also stop work.

Taking the point of discrimination first it was argued by the learned Counsel, Sir Sultan Ahmed, that Government has power to classify and its classification cannot be questioned if there is a reasonable basis for it; that having regard to the status of the deceased Nawab and vastness of his property, there was a reasonable basis for classification and that, therefore, argument from the equality clause is untenable. The learned Counsel argued further that no doubt the application of two procedures has been tabooed by the Supreme Court in -. '' Lachmandas Kewalram Ahuja and Another Vs. The State of Bombay, and in - The State of West Bengal Vs. Anwar Ali Sarkar, but it cannot be argued in the case under consideration that the Commission will apply any other procedure than the Indian Civil Procedure Code, for, under the provisions of Circular No. 10 of 1338 F. the Hyderabad CPC applicable to all other civil causes, will apply to the enquiry by the Commission also; that as contended by the learned Advocate-General in para. 3 of his counter the Commission was, as a matter of fact, a civil court; that having regard to Art. 227 and Art 136 of the Constitution Act there will be two lights of appeal, one to this court and the other to the Supreme Court; that as held in The State of West Bengal Vs. Anwar Ali Sarkar, absence of power of transfer of cases alone is not sufficient to indicate discrimination; and that, therefore, not only the Commission will apply the same procedure but there will be no discrimination on the grounds of power of revision, appeal and transfer. Thus, he concluded that the argument from the equality clause of the Constitution Act is untenable.

Regarding the proviso to S. 21 (2) of the Jagir Abolition Regulation he referred to the recent Full Bench - ''Ahmad-un-Nissa Begum v. State of Hyd.'', ILR (1952) Hyd. 595 (FB) (5 Judges) case of Kamal Yar Jung''s succession and urged that there it was held by majority that pending proceedings are saved by virtue of this proviso and, therefore, an enquiry by the Commission which started to function before the advent of the Constitution Act cannot be challenged because of its promulgation.

The last important point made by the learned Counsel was that it is an undisputed principle of Moslem Law that there cannot be two successions; that as soon as the propositus dies, the ownership of the matruka vests in his heirs; that under this principle the ownership of the private property of the deceased Nawab vested in his heirs whoever they might ultimately be found to be; that, therefore, the property comprised in the Crown grant or what is left of it namely, the commutation amount, should also be deemed to have vested along with it. In support of his contention he cited - ''Murtaza Husain Khan v. Muhammad Yasin Ali Khan, 43 Ind App 269 at pp. 281-282 (PC).

I have carefully considered the above argument and I am clearly of the opinion that it is untenable. I do not deny that the State has power to classify as has been held in - The State of West Bengal Vs. Anwar Ali Sarkar, :

All persons are not, by nature, attainment or circumstances, equal and the varying needs of different classes of persons often require separate treatment, and, therefore, the protecting clause has been construed as a guarantee against the discrimination amongst equals only and not as taking away from the State the power to classify persons for the purpose of legislation. This classification may be on different basis. It may be geographical or according to the objects or occupations or the like. Mere classification, however, is not enough to get over the inhibition of the Article. The classification must not be arbitrary; but must be rational, that is to say, I must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but ''those qualities or characteristics must have a reasonable relation to the object of the legislation''. In order to pass the test, two conditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia, which is the basis of the classification and the object of the Act are distinguishing things and what is necessary is that there must be a nexus between them.

This will show that the State may classify a group of persons on the basis of difference in circumstances and that will not constitute discrimination, but that to get over the inhibition of the Art. 14, the classification must be rational, that is, must have a reasonable relation to the object of the legislation. The question therefore, arises whether the classification made by the Firman-e-Mubarak by which the Commission was appointed is reasonable and has a reasonable relation to its object. The object is nowhere given in the Firman, but, as alleged by the learned Counsel, it was the status of the deceased Nawab and the vastness of his property and the fact that the property covered not only Crown grants but valuable private property. I concede fully that all these make a wholly plausible case for classification and separate treatment. But let me examine it a little more closely.

The reasoning would have been irresistible had the circumstances been the same as that in which the Firman-e-Mubarak was issued and the Commission was appointed. Considerations that have force in the hey-day of the jagirdars with all their pomp and parapharnelia look small in the days of the Republic when all the jagirs have been abolished, and commutation amounts bearing a nominal proportion to the income of the jagirs alone are their paltry substitute. I believe I will not hurt the sentiments of anybody if I state that today the words ''big noblemen'' sound more or less a mockery.

It is true that the ''Arzdasht'' read at the instance of Sir Sultan Ahmed, by the learned Counsel, Shri Mir Akbar Ali Khan, embodied the consent of the Amirs of the Paigah & the late Sir Maharaja Kishen Pershad, the enquiries into the succession cases of big noblemen should be made by a Commission. But not only this Aradhasht also was submitted in the hey-day of the jagirdars and the mighty Amirs of Paigah but was even much prior to the Police Action. Further it is also an undisputed fact that the reason why separate commissions or Tribunals were appointed was that it was considered beneath the dignity of the big noblemen to the (be?) subjected to ordinary process of the Civil Courts. This is evident from the Firman referred to by the learned advocate, Mr. Peerbhoy, namely, the Firman dated 2nd April 1895, by which the deceased Nawab was exempted; from the jurisdiction and the processes of the civil courts of the State.

I repeat that all this has changed completely. There remains no indignity as there exists no landed gentry. Almost all the claimants who claim to be the heirs of the deceased Nawab do not belong to the class of big noblemen and the subject of enquiry is no longer big jagirs but only right to commutation amounts and private property. In the circumstances there does not appear to be sufficient ground for a separate treatment. The vastness of the property is no bar, because the First Court, City Civil Court, has unlimited pecuniary Jurisdiction.

Regarding the argument that by virtue of Circular No. 10 of 1358 F. the ordinary CPC is applicable, it should not be forgotten that it was in the words of the Circular applicable only ''as far as possible''. It cannot be said that it was wholly applicable because, had it been so applicable there would have been appeals. It is a question here whether there would be right of two appeals. The learned Counsel argued from Arts, 227 and 136 that there will be two rights of appeal even, from the decision of the Commission. But surely Art. 227 refers only to the revisionary powers of the High Court and not to its appellate powers and Art. 136 is about leave for appeal to the Supreme Court. Leave for appeal to the Supreme Court is something different from a vested right of appeal. The one cannot be refused; and the other can be refused.

Besides, it has not been denied that Atiyat Law has a peculiar procedure of its own which is embodied inter alia in Circular No. 17 of 1312 F.; and the commission will have to apply it. Hence, strictly speaking, there appears to be no escape from the fact that there would be here two procedures. If this case is to be tried by the ordinary civil courts, the CPC and its complementary Acts like Civil Court Act would apply; but if it is to be tried by the Commission, no doubt the CPC will apply, but will apply only ''as far as possible'' and Circular No. 17 will also apply, with the result that there will be no vested right of appeal and, the right of appeal to the Supreme Court will depend upon the decision of the Supreme Court on a petition of leave to appeal.

Regarding the further argument that right of transfer has been held in the Bombay case not to be material, I concede that it may not be material, as two Hon''ble Judges of this Court are members of the Commission; but, it should not be forgotten, that in spite of this the Writ application under consideration has been filed and a stay order has been taken from a Division Bench of this Court to stay the proceedings of the Commission. The application, leaves no doubt that the petitioner is not at all satisfied. It is to be noted further that during the period wherein H.E.H. the Nizam had full sovereign powers, he used to direct that a decree in terms of the finding of the Commission should be made & executed as the decree of a civil court by a court which he used to name. It is for consideration whether H. E. H. or his Government can now exercise the same powers, as, it does not appear that the power has been conferred on them by any statute. Moreover, the Jagir (Abolition) Regulation 1358 F. has been promulgated by the Military Governor and certified, confirmed and maintained by the Union Parliament. Its section 21 (2) has made all claims about jagirs to be justiciable by the ordinary civil courts of the land. Having regard to all these facts it appears to me quite clear that the enquiry by the Commission will result in discrimination and will be violative of Art. 14 of the Constitution Act and I hold accordingly.

I pause here and reflect further. Of course as held in '' (1913) 232 U S 499 (sic) the State has a right to the fixation of the jurisdiction of the courts and the formations of various courts. Again as mentioned in Cooley''s Treatise on Constitutional Limitation, Vol. II, page 754:

Every State has complete control over the remedies which it offers to the suitors in its courts laws abolishing one remedy, where two or more existing may be perfectly valid even though the new and the remaining remedies be less convenient than that which was abolished and less prompt and speedy.

And as held by this Court in the case of - ''Abdur Rahim v. Pinto'', ILR 1951 Hyd 1

Equal protection of law does not mean protection by identical laws as sometimes it is necessary to abridge the ordinary procedure in the interests of justice itself.

It is to be noted further that as held in - ''State of Bombay v. Balsara''. AIR 1951 S C 318;

There is nothing wrong prima facie in the Legislature according special treatment to persons who form a class by themselves in many cases.

Again to the same effect are the observations in - ''Charanjitlal v. Union of India'', AIR 1950 S C 869 that:

A law which relates to one person or a class of persons is not unconstitutional if there is sufficient reason or basis for it.

Prof. Willis in his Constitutional Law at page 680 has also made similar observations, namely:

The fact that only one person is affected is not proof of denial of the equal protection of the laws.

And it goes without saying that as held in - The Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi and The Bharat Bank Employees'' Union, Delhi, that:

The fact that the Government has to make a declaration after the final decision of the Tribunal is not in any way inconsistent with the view that the Tribunal acted judicially.

I have carefully considered all the above learned observations and my reflection on them leads to the same conclusion that if there be a sufficient reason or basis for classification, the State is not prevented from legislating for a class or even a single person; that in so legislating the prescribing of remedies even less prompt or speedy than the existing remedies may not necessarily be deemed to be discrimination; that the fact that the Government has to make a declaration does not detract from the judicial character of a Tribunal. In the case under consideration, therefore, the only question is: whether the Firman-e-Mubarak constituting the Special Commission for inquiring into the succession of the late Nawab Salar Jung proceeded upon sufficient and reasonable basis. After careful consideration I do not find any reason to vary my observations in the preceding para. 4 of this judgment. The times have completely changed. The jagirs have been abolished. The landed gentry is no more and, therefore, the reason which actuated the Firman-e-Mubarak have evaporated completely and, therefore, in the changed circumstances the continued functioning of the Commission cannot be field to have proceeded upon a reasonable classification.

Moreover, though the subject has no vested right in any remedy, he may reasonably claim that if there is no sufficient and good reason for separate treatment, the remedies available for every other person should be available to him also. I think, that is the reasoning upon which the Supreme Court in the case of - Lachmandas Kewalram Ahuja and Another Vs. The State of Bombay, has held that:

Any deviation or departure from established procedure amounted to a discrimination and. therefore, violative of Art. 14 of the Constitution.

Thus my reflection on some of the cases cited or references made leads to the same conclusion as in the preceding paragraph that the inquiry by the Commission will result in discrimination and will be violative of Art. 14 of the Constitution Act and again I hold accordingly.

Regarding the argument that, as the enquiry by the Commission was pending at the time of the promulgation of the Jagir (Abolition) Regulation, it is saved by the proviso to S. 21 (2) of the Jagir (Abolition) Regulation, I am of opinion that this argument is also wholly untenable. In my opinion the proviso saves the existing law: the existing law as defined in the said Regulation itself includes the Atiyat law; and Atiyat Law is a creature of the prerogatives of H. E. H. the Nizam. It cannot be denied that after the advent of the Constitution Act, the sovereign power of H.E.H. the Nizam, including the prerogatives, do no longer exist. I should be more explicit on this point and state clearly that the reports of the Commissions of this kind were sanctioned by H. E. H. the Nizam in virtue of his ''prerogatives of a Sovereign''; for, not only this has been the subject of unequivocal judicial pronouncement of the then highest Tribunal of the Hyderabad State, namely, the Judicial Committee, for example, in 25 Deccan L R 1 and 35 Deccan L R 887'', but it was also expressly enacted in all the Statute laws on constitutional and Atiyat matters including Circular No. 17 of 1312 and No. 10 of 1338 F., that sovereign powers and prerogatives of H. E. H. the Nizam are not controlled by any provisions of the said Statutes. It is said that as held by Lord Dunedin in - ''Attorney-General v. De Keyser''s Royal Hotel'', (1920) A C 508:

It is equally certain that if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules.

But, as already stated above, it is equally clear that in all the statutes on constitutional matters of pre-Constitution Act days the royal prerogative of H. E H. was expressly saved and, therefore, whether by Circular No. 17 of 1312 F, or Circular No. 10 of 1338 F. or No. 19 of 1332 F. or any other Circular or other statute law on constitutional or Crown grant matters, the whole ground of the Crown grants was not covered by any Statute and, there was express saving in favour of the intransigent nature of the prerogatives of the Sovereign and, therefore, this argument cannot be deemed valid. It is also an undeniable fact that it was not the case that H. E. H. the Nizam invariably accepted the report of the Commission. There are instances in which he appointed a second Commission after receiving an unpalatable report of a first Commission; and there exist instances of his sanctioning virasat to persons totally different from those recommended by the Commission. No doubt, such, instances were few and far between; but they indicate and prove the existence of the intransigent and transcendental prerogative. I may even state that even if there had been no such instance, it cannot be denied that in Atiyat Law every grant was a fresh grant and the sanction was entirely at H.E.H. the Niazm''s will. Hence it cannot be said that the personal law was invariably applied or its invariable application detracted from the prerogative. The proviso under consideration is, therefore, undoubtedly bad and ultra vires the Constitution because it saves the royal prerogatives which do not and cannot find any place in a Republican regime.

The view cannot be subscribed to that H.E.H. the Nizam used to sanction the report of the Commission as the Head of the Government only, because the Hyderabad Judicial Committee cases already referred to, namely, ''25 Deccan L R 1 and 35 Deccan L R 887'' have held that the sanctioning of a grant was in exercise of his royal prerogative qua Sovereign. Amendment to Art. 31 by Art. 31A also does not save this proviso; for what was saved by this article was "the acquisition of any estate or any rights therein or the extinguishment or modification of any such rights." The proviso to S. 21 (2) of the Jagir (Abolition) Regulation does not provide for the acquisition of any estate or any right therein or the extinguishment or modification of acquisition of any estate or right therein. The proviso safeguards only the ''existing law'' and the ''existing law'' of sanctioning succession proceeding is, in my opinion, violative of the Constitution Act, as it saves the royal prerogative of sanctioning succession and denies the statutory right of appeal, and is, therefore, discriminating.

Now I pass on to the argument from the Kamal Yar Jung''s succession case. It is argued that this proviso has been expressly held to be intra vires of the Constitution Act by the majority of the learned Judges who decided that case. This is so. But I am persuaded that as the question in Kamal Yar Jung''s case was: whether the report of the Commission could be sanctioned by the Chief Minister of the time, the pronouncement of the majority on the question of the proviso to S. 21 (2) of the Jagir (Abolition) Regulation was OBITER DICTA and, therefore, is not binding on this Full Bench, although it is a smaller Bench. There the question centered round the order of Shri M. K. Vellodi, the then Chief Minister, whether it should be held valid or not Arguments for the most part ranged under Arts. 166 and 154 (2) of the Constitution Act and S. 13 of the Atiyat Enquiries Act. All this is not germane to the question under consideration now, which is: whether the Commission can continue to function. Thus I am clearly of the opinion that the pronouncement of their Lordships of the majority was OBITER DICTA and, therefore, this Bench is fully entitled to differ respectfully from the OBITER DICTA pronouncement.

There remains a few minor questions; one is the argument of the learned Counsel, Sir Sultan Ahmed, from the case of - ''Murtaza, Husain Khan v. Mohd. Yasin Ali Khan'', 43 Ind App 269 (PC). I have already stated what the argument is at the end of para. 3 of this judgment. Briefly, it is this: that having regard to the principle of Moslem Law that there cannot be two devolutions of property, the Atiyat property of the deceased Nawab would also be deemed to have devolved along with the private property as soon as the deceased Nawab breathed his last and vice versa; that as the petitioner, Tahera Begum, has not claimed any share in the Atiyat property and she is deprived by custom from claiming any share in the Atiyat property, the same principle of exclusions because of the principle of devolution, will apply to the private property; that, no doubts as held in the Privy Council case referred to above, a different custom can be proved in respect of private property, but the onus of proof will be on the petitioner; and that as Tahera Begum has not claimed any share in the jagir property, that fact tantamount to an admission of exclusion and that admission should operate against the Matruka property as well and, this Writ petition should be dismissed because of the operation of the principle.

I am afraid this is a wholly untenable argument, for in the first place, '' 43 Ind App 269 (PC) '' was not a case of Crown Grant. It was about ''Non-Talukdari'' property and hence the principle of one devolution cannot apply here to a Crown Grant property wherein there is no succession, as every grant is a fresh grant. Secondly, the Crown Grant property also cannot go the way of private property because of the one devolution principle, for before a grant is conferred it cannot be said to devolve; and regarding exclusion by custom and by not putting up a claim, the question of custom has still to be proved by evidence and not claiming a share in the Crown grant property is also not conclusive. I was so far speaking from pre-Constitution days, coming to post-Constitution times, of course there is no bar to the vesting of the property. The property may have vested in the heirs of the deceased Nawab simultaneously and in split seconds, with his last breath. But who the heirs are has to be found only after protracted and lengthy litigation. Thus this argument, I am afraid, is neither correct nor very helpful. It, however, leads to a consideration of the validity of the Salar Jung Estate (Administration) Regulation No. 34 of 1338 F. (1358?) and the Nawab Salar Jung Bahadur (Administration of Assets) Act No. 39 of 1950. The learned advocate, Mr. Pheerbhoy, has challenged their validity. But it is evident that their object being the preservation of the property pending ascertainment of heirs, their validity is beyond question Neither S. 4 of the Regulation nor S. 8 of the Act bars any claimant from having recourse to a court of law and, therefore, the argument that they do so prevent is, I am afraid, incorrect. The power behind them is in item 11 of the concurrent list of Sen. VII of the Constitution Act: where both the Centre and the States are empowered to legislate on "Administrators-General and Trustee." I pause here to consider whether I should have taken a distinction between the Crown grant and the private property should have dealt with them separately. Having regard to the conclusions I have arrived at about the incompetency of the Commission, the admitted validity of the Jagir (Abolition) Regulation and therefore of its S. 21 (2), whereby the Atiyat property has also become justiciable by the ordinary courts, and the finding that proviso to S. 21 (2) being ultra vires the Constitution Act, no distinction between the two kinds of the property appears to be necessary and I, therefore, did not take any.

I should, however, make this clear that the State Government has power under Sen. VII, item 18 of the Constitution Act to legislate about land and, therefore, sanction commutation after abolishing jagirs: but to determine the heirs also who would receive the commutation amounts does not seem to be the lot of the executive under the Constitution Act. The neirs and their shares will have to be determined by the ordinary courts of the land and to those heirs alone the executive can grant the shares so fixed. I have discussed these points m the ''Kamal Yar Jung''s case'' (Ahmad-un-Nissa Begum v. State of Hyderabad'', ILR (1952) Hyd 595) and I need not, therefore, detail further the reasoning here.

One more point; that the Commission is incompetent because its members are the Hon''ble Judges of this Court and under the Constitution Act no Judge of a High Court can do any other work than- the High Court work. But. evidently, he can do other work by the permission of H. E. the President although as a matter of fact, to the best of my knowledge, the said permission has not been obtained. Hence this argument is not of much force.

Lastly, it was argued that as the deceased Nawab had not only informed the Government that he had no heir but has also left a will; that, both these facts are in favour of the estate escheating to the Government; and, therefore, the Government is interested and is a Judge in its own cause. It appears to me that there is a fallacy here: and it is in confusing the Commission with the Government. As far as the competency of the Commission is concerned, it cannot be questioned on the ground of interest and the learned Government Advocate, Shri Vinayak Rao Vaidya and the learned Advocate-General, Shri Rajaram Iyer, have stated that the Government will abide by the report of the Commission. Had the Commission been otherwise competent, this objection would not have weighed with me.

In the result, I am of the opinion that the Commission is not the proper forum for adjudicating the various questions that arise from the deceased Nawab''s succession case. I, therefore, direct that the Writs of Certiorari, Mandamus and Prohibition should issue. The Commission should stop work. The Hyderabad State should not require the Commission to inquire and report. The management of the estate may remain with the Committee as it is but a Trustee for the heirs to be. and both the Regulations 34 of 1358 F. and 39 of 1950 AD. are not void. The parties may go to the law court to have their claims settled. In view of the circumstances of the case we direct that the parties should bear their own costs.

Srinivasachari, J.

This case relates to the estate of one of the foremost noblemen of Hyderabad, Nawab Salar Jung III, who died on 2-3-1949. Immediately after his death, the Nizam issued a ''Finnan'' on the 23rd of May constituting a Commission to enquire into the succession to the estate of the late Nawab with regard to his jagir and non-jagir properties. This Commission which was constituted by H. E. H. the Nizam was directed to enquire into and report with regard to the following matters:

(i) Whether the jagir of the Nawab escheatea to the government by reason of his having cued issueless;

(ii) If not, who are the heirs of the Nawab;

(iii) Who are the heirs of the Nawab in so far as his private property was concerned;

(iv) What is the extent of the private property which is divisible among his heirs; and

(v) Did the Nawab leave any will and what is the effect thereof in regard to the distribution of the property?

In pursuance of the above direction, the Commission commenced its enquiry by issuing notice calling upon all parties, who had any share in the estate of the late Nawab, to appear before the Commission and file their respective claims. A number of persons appeared before the Commission and put forward their respective claims. The members of the Commission felt that it would facilitate the enquiry if the proceedings relating to ''atiyat'' property and the proceedings pertaining to ''non-atiyat'' property were split up '' and enquiry was conducted independently and so that was done. The Commission framed the necessary issues arising out of the pleadings of the parties and the parties were caned upon to lead their evidence. When the Commission was engaged in recording the evidence of the witnesses on behalf of the parties the present petitioner, Tahira Begum, filed an application before this court for the issue of writs of ''certiorari'' ''mandamus'' and ''prohibition". The petitioner impeached the constitution of the Commission itself on various grounds, primarily that such a tribunal could not exist as it offended the provisions of Arts. 14 and 15, Constitution of India. The petitioner also questioned the validity of the Nawab Salar Jung (Administration of Assets) Act, Act, 64 of 1950. After the filing of this application on 27-12-1950 a Bench of this Court directed the Commission to stay further proceedings until further orders. The result was that all the proceedings before the Commission came to a standstill thereafter. The petitioner filed another application on 25-1-1951 seeking the leave of this Court to add further grounds in the application.

In this writ application, the petitioner impleaded the State of Hyderabad being respondent No. 1, the Hon''ble Judges constituting the Commission being respondents 2 and 3, the committee appointed for the management of the estate of the late Nawab being respondent No. 4, and those persons who put forward their claims to a share in the estate of the late Nawab. These are respondents Nos. 5 to 13.

Counter was filed on behalf of respondent No. 1, the State of Hyderabad. The Attorney-General of India filed a separate counter to that portion of the petitioner''s application impeaching the validity of Act 64 of 1950 by adopting the counter of respondent No. 1, in so far as this question was concerned. Respondent No. 4, the Committee filed a separate counter more or less on the same lines as those of the respondent No. 1. Respondent No. 5, Khurshid Begum was one with the applicant and supported her contention. Respondent No. 6 opposed the petition. Respondent No. 7 supported the application.

I would summarise the main contentions of the petitioner in invoking our jurisdiction under Art. 226 of the Constitution of India. They are as follows:

(a) The Commission as constituted by H.E.H. the Nizam is not invested with all the powers of a court;

(b) There is no sanction behind the orders of the Commission and, therefore, the Commission cannot enforce its orders;

(c) Even if such a Commission could be constituted under the powers vested in the Nizam before the coming into force of the Constitution such a Commission cannot have a legal status after 26-1-1950 and it is clearly ''ultra vires'';

(d) The Constitution of a special court for the purpose of enquiry into a particular case clearly offends the fundamental right granted under Art. 14 of the Constitution as the right of equality before the law is infringed.

Before I deal with the various contentions raised in this case it is just as well that I refer to the state of the law in Hyderabad with regard to jagirs.

The estate left by the late Nawab consists of two kinds of properties: (1) ''atiyat'' property or property granted by the Nizam to the forefathers of the Nawab being in the nature of a crown grant and (2) ''non-atiyat'' property, other assets consisting of movable and immovable, property. The attributes of these kinds of properties are different in so far as succession to such properties is concerned The first principle relating to ''atiyat'' property is that it is a grant by the sovereign to a particular individual and on his death the fiction of the ''atiyat'' law is that it reverts to the sovereign and there is a fresh grant by the sovereign in the name of his heir or successor, although as a matter of practice the jagir is only granted to the legal heir. Another feature about the ''atiyat'' property is that all matters relating to such property would be heard & determined not by the civil court but by the special courts, called the ''atiyat'' courts, which would have exclusive jurisdiction over these cases relating to such property, the Nizam issued a ''Firman'' which has been emboded in a Regulation Code, Regulation No. 34 of l33l F. According to this Regulation, on the death of a jagirdar, the person who claims to be entitled to succeed to the deceased jagirdar had to appear before the Taluqdar in cases where the annual income of the jagir did not exceed Rs. 2,500 and in all other cases before the ''Nizim-i-atiyat'' (officer in-charge of Crown grants). These were the courts established to deal with cases relating to the ''atiyat'' property. Independent of and quite irrespective of these special courts, where the estate was a big estate and related to noblemen who were called Umarai Uzam (High Noblemen) the Nizam used to constitute special commissions or tribunals for facility of enquiry and quick disposal. The power of the Nizam to constitute such special courts was well recognised, because he had vested in him the legislative, judicial and executive powers. In this connection, the leading case of - ''Raja Pratabgir v. State of Hyderabad", reported in 30 Deccan L R 153 would be in point. It is abundantly clear, therefore, that the establishment of a Special Commission to enquire into the succession to the estate of the late Nawab was quite valid and constitutional according to the law in force at that time. The Commission was appointed in May 1949.

On 14-8-1949, the Jagir Abolition Regulation No. 69 of 1949 was passed under which all jagirs were abolished and all claims relating to a jagir or to any share in the income thereof were to be entertained and decided by the appropriate civil court. This enactment, therefore, put an end to the special courts that had been established for the determination of the jagirdar, for after this enactment there was no question of the grant of a jagir as such. A provision, however, was made in this enactment that in so far as those cases, which were pending enquiry at the time when this enactment came into force, were concerned, the enquiry was to be completed according to the existing law, viz., the law relating to ''atiyat'' property. It is well known that the ''atiyat'' courts were primarily courts, which after making the necessary enquiry and investigation, generally submitted their recommendations to the Nizam, who accorded his sanction to such recommendations. The position was that it was only after the sanction was accorded that the findings of the ''atiyat'' court became enforceable and operative. Admittedly, this case was pending when the Jagir Abolition Regulation came into force and according to the proviso to S. 21 of the above Regulation, the old law had to be followed, viz., that the recommendations of the Commission would need to receive the ''approval of the Nizam.

As pointed out by me above, inasmuch as the estate left by the Nawab consists of both jagir and non-jagir properties the Judges constituting the Commission would be bound to apply the special law relating to Crown grants so far as the jagir property was concerned and the personal law would be applied in so far as the other kind of property is concerned. It has also to be borne in mind that the law that would be applied would be the exiting law until modified by the legislature, subject however to this condition that it is not repugnant to any of the provisions of the Constitution of India. I have now to consider whether the coming into force of the Constitution would affect the continuance of the proceedings before the Commission. I am of opinion that it cannot have any such effect. It has to be remembered that this legislation, namely, the Jagir Abolition Regulation of 1949 was certified under Art. 31 (6) of the Constitution of India, by a Notification dated 25-4-1950, vide Gazette of India, Part (I) S. (I) dated 6-5-1950. The result of this was that this enactment could not be called in question in any court of law. Subsequently, by the passing of the Constitution First Amendment Act 1951, the Jagir Abolition (Regulation was specified in the 9th Schedule and the aforesaid amendment expressly made lit clear that none of the Regulations mentioned in the 9th Schedule nor any of the provisions thereof shall be deemed to have been void or ever to have become void on the ground that such regulation was inconsistent or took away any of the rights conferred by any provisions of the Constitution. It, therefore, follows from this that the provisions of the Jagir Abolition Regulation cannot be held to be inconsistent with any of the provisions of the Constitution. The validity of this Constitution First Amendment Act was challenged before the Supreme Court in the case of - Sri Sankari Prasad Singh Deo Vs. Union of India (UOI) and State of Bihar, and it was held in that case that the said Act was ''intra vires''. The provision in an enactment that pending proceedings should be concluded according to the law applicable at the time when the rights and liabilities accrued and the proceedings commenced has been held to be good law by the Supreme Court in the case of - ''Ramjilal v. I. T. Officer'', AIR 1951 S C 97: 1951 SCR 127.

I shall now deal with the other grounds on which the Constitution of the Commission is attacked. The most important ground is that it clearly offends Art. 14 of the Constitution of India. It is stated that while all cases relating to succession to Muslims'' property used to go before the Ecclesiastical Court and after the abolition of the Ecclesiastical Court would go now before the ordinary civil court, there is no reason why this distinction should be made and this case should be heard and decided by a Special Commission. It was contended that all the privileges and advantages that the petitioner would have In an ordinary court of law could not be had before the Commission. It was also urged that its orders were only in the nature of recommendation and were not enforceable until they received the sanction of higher authority. Article 14 of the Constitution reads as follows:

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

It has been guaranteed by this provision of the Constitution that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. It has to be observed in this connection that this guarantee of equal protection in legal proceedings does not secure to all persons the same laws and remedies. The right of the state of fixing different venues of civil action is well-recognised. It does not prevent the state also from determining jurisdiction of its courts. In this connection, the case reported in 232 United States Reports, p. 499 would be in point. Coming nearer home, the matter has been the subject of judicial pronouncement by the highest court in the land. It was tersely put by Fazl Ali, J. in the well known case of - '' Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, that a law applying to one person or one class of persons is constitutional if there is sufficient basis or reason for it. In the case, before us, it has to be observed that the Nizam uonstituted commissions for the enquiry into the succession to the estate of only big jagirs; in effect, special commissions used to be constituted for enquiring into the succession to the estate of the noblemen class and therefore, this can very well be regarded as a law, for the Firman'' of the Nizam was the law of the land, which applied to one class of persons, viz., the noblemen class and it was held by the Supreme Court in the case referred to above that if there is a classification it would not be held as invalid simply because the law might have been extended to other persons and in such cases the legislature alone is the best judge. Therefore, on the ground of their being no basis for this classification the constitution of the Commission cannot be attacked and inasmuch as under the Jagir Abolition Regulation which is good law the existing law alone could be applied, the fact that a different kind of law other than the present law is being applied could not be regarded as a differentiation between the general class of people and the jagirdars. Therefore, no inequality could be predicated in this instance. The same learned Judge Fazl All, J. observed in the case of ''State of Bombay v. F. N. Balsara'', AIR 1951 6 C 318 : 52 Cri L J 1361 (SC) "If a law deals equally with members of a well defined class it is not obnoxious and it is not open to the charge of denial of equal protection'' on the ground that it has no application to other persons." The learned Judge further goes on to say "that every classification is in some degree likely to produce some inequality and mere production of inequality is not enough." It cannot be said that this classification of directing the cases relating to the succession to he estate of persons who were known as Umara-i-Uzam is not a classification based on in understandable basis. If there is some understandable basis then such a distinction can to be said to violate the principles of equality before the law or equal protection of the laws according to the dictum of the Supreme Court in the case of - ''State of Bombay v. F. N. Balsara'', AIR 1951 S C 318 : 52 Cri L J 1361 (SO. His Lordship Fazl Ali, J. observed "I find that there is nothing wrong ''prima facie'' in the legislature according special treatment to persons who form a class by themselves in many cases" (AIR 1951 S C 318 at p. 327). It was urged that the petitioners have no rights of appeal while if the case were to be instituted in a civil court that would have the various grades of appeals to the superior courts. This argument, to my mind, cannot be sustained.

In this connection, I may straightway point out that the right of appeal is not an inherent right but it is a right which must be conferred by a statute. This doctrine was established as early as 1876 and this was subsequently followed by the Privy Council in the case of - ''Rangoon Botutoung Co. v. Collector, Rangoon'', 39 Ind App 197: 40 Cal 21 (PC), therefore, it is clear that the right of appeal cannot be regarded as a fundamental right, above all, as regards the remedies available to Tutor in courts the state has absolute control over them and the fact that a suitor is deprive of any one remedy cannot be regarded as offending against the principle of equal protection of the laws or equality before the law. I might in this connection refer to what Cooley has said in his ''Treatise on Constitutional Limitation'', Vol. II, p. 754. "Every State has complete control over the remedies which it offers to suitors in its courts laws - abolishing one remedy where two or more existing may be perfectly valid even though the new or the remaining remedy be less convenient than that which was abolished or less prompt and speedy." That gives a complete answer to this part of the argument that the petitioner is deprived of the right of appeal. The Chief Justice in the full bench case of - ''Abdul Rahim v. J. A. Pinto'', has rightly observed "Equal protection of laws does not mean protection by identical laws, sometimes it is necessary to abridge the ordinary procedure in the interests of justice itself." (AIR 1951 Hyd U: 52 Cri LJ 1333 (FB) ).

The application of a law different from what would be applied to a similar case today according to me cannot be regarded as producing inequality and as such offending the provisions of equal protection of the laws. This view of mine receives support from the observations of Das J. in the case of - Ramjilal Vs. Income Tax Officer, Mohindargarh, wherein his Lordship observes "in any case the provision that pending proceedings should be concluded according to the law applicable at the time when the rights or liabilities accrued and the proceedings commenced is a reasonable law founded upon a reasonable classification which is permissible." The question of inequality can arise only in the enforcement of the laws. The doctrine would not come into play unless the law is discriminatorily applied. Apart from all other considerations, the one important consideration in these matters cannot be ignored that it is upon the party impugning the particular legislation to show that there is no reasonable basis for such classification. Professor Willis says "The fact that only one person is affected is not proof of denial of the equal protection of the laws.'' (Willis'' Constitutional Law, p. 580).

It was urged that the Commission cannot be regarded as a court because its finding is not a final order but only partakes of the nature of a recommendation to be sanctioned by the competent authority. This argument again cannot hold water. The Commissioner has all the powers of a court in so far as its proceedings are concerned. It can call upon parties to lead evidence, summon witnesses, give findings on issues and do all such acts a an ordinary court of law would do, and if it possesses all those powers, then to say that there is anything defective about it cannot be justified. The fact that some higher authority has to give a formal sanction to its recommendations would not matter. It is nevertheless a court. As was artistically put by Pazl Ali J. it has not only all the trappings of a court, but the power to decide the rights of the parties vests in the Commission alone and their rights would be finally adjudicated upon by the finding of the Commission itself, and the Government''s sanction thereupon is only formal.

Mahajan J., in the - ''Bharat Bank v. Employees of Bharat Bank'', observes "The fact that the Government has to make a declaration after the final decision of the tribunal is not in any way inconsistent with the view that the tribunal acted judiciously." The Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi and The Bharat Bank Employees'' Union, Delhi, In - ''Rex v. Electricity Commissioners'', (1924) 1 KB 171 at p. 207: 93 LJ KB 390 it was observed "it is to be noted that it is the order of the commissioners that eventually takes effect

I know of no authority which compels me to hold that a proceeding cannot be a judicial proceeding subject to confirmation or approval even where the approval has to be that of the House of Parliament" It is a judicial tribunal, it is under the supervision of the High Court, under Art. 227 and under the appellate authority of the Supreme Court under Art. 136 of the Constitution. So this argument also fails.

In these proceedings the petitioner sought to impugn some of the provisions of the Nawab Salar Jung Bahadur (Administration of Assets) Act, 1950 as offending the provisions relating to some of the fundamental rights conferred by the Constitution. It was argued that S. 4 (2) (c) of the above Act interfered with the right of the petitioner to hold and dispose of property.

The Nawab" Salar Jung Bahaduri (Administration Of Assets) Act, Act No. 36 Of 1950, is an enactment passed by the Parliament of India, and it came into force on 21-4-1930. Section 4 (2) (c) of the aforesaid Act, which is being challenged, reads as under:

Without prejudice to the generality of the powers given to it by sub-section 1, the committee may for any of the purposes, aforesaid.

(a) ........

(b) .........

(c) transfer in any manner whatsoever the assets or any part thereof;

(d) ......

It is argued by Mr. Mohsin that under the Mohammedan Law on the death of the propositus his estate devolves upon his heirs according to their respective shares and they hold the estate as tenants-in-common. The rights given to the committee to transfer the assets in any manner clearly interferes prejudicially with the right of his client to hold and dispose of the property which is a fundamental right conferred on him under Art. 19, clause (f) of the Constitution Article 19 clause (f) says that "all citizens shall have the right to acquire, hold and dispose of property."

I am afraid there is a fallacy in this argument. The Nawab Salar Jung (Administration of Assets) Act of 1950 was passed primarily for the administration and management of the estate by a committee of management to be appointed. As the preamble would show it was enacted only for the above purpose. The preamble says "an act to provide for the administration of the assets of the late Nawab Salar Jung Bahadur of Hyderabad and for matters connected." Section 3 of the Act also strengthens this view. Section 3 says "all the assets of the Nawab shall vest in the Committee and shall be administered by the Committee subject to the control of the Central Government." This Act is a central Act passed by the Indian Parliament and Parliament has also the power to legislate in respect of any of the matters contained in List III, the Concurrent List. Item No. 11 in the Concurrent List is "Administrator-General and Trustees". The provisions of the Nawab Salar Jung (Administration of Assets) Act are practically similar to those of the Administrator-Generals Act. The circumstances which led to the passing of this legislation were these. The Nawab died issueless leaving behind a vast estate consisting of valuable movable and immovable property. There were number of persons laying claim to the estate and their claims had to be enquired into and adjudicated upon Until such time as the rightful claimants were determined it was thought essential that the estate should be managed and preserved by a committee of management for the preservation of the estate so that eventually it may be available to the rightful heirs. They merely hold as trustees for those who may eventually be declared to be entitled. The position of this body of the committee of management is only like that of the Court of Wards. The Court of Wards is empowered to keep possession of the property of the ward and dispose of any portion of it if it thought expedient. There Is nothing wrong against this right of the Court of Wards Act to dispose of property. Likewise, the committee of management could dispose of the property if it thought the sale of the property was advisable in the interests of the estate. Where there is the apprehension of deterioration or waste of assets, the taking over of the estate for preservation and management cannot be regarded as unjustified. The argument that Mr. Mohsin''s client has a fundamental right to hold his share in the property is wrong. No one can say today as to who would be the heirs entitled to and to what shares. Therefore, it is futile to contend that any fundamental right has been infringed.

It was argued by one of the counsels appearing for the petitioner that S. 18 of the Hyderabad (Abolition of Jagirs) Regulation, 69 of 1358 P. excludes personal property of a jagirdar, from the application of this Regulation and that the Commission had been entrusted with the task of enquiring into the succession to the private property of the Nawab as well. This enquiry could not be continued by the Commission even under the proviso to S. 21 (2) of the above Regulation. The short answer to this is that H.E.H. the Nizam had the power to constitute a special Commission for enquiring into the succession to the estate of a nobleman, Ameeri-Uzam, both with regard to jagir property as well as non-jagir property. Such a Commission had jurisdiction to decide about the heirs and successors to the private and non-jagir property of the Nawab.

The advocate appearing for the petitioner stressed a further point in the case, viz,, that in this case the Government claims the property by way of escheat and after the Commission gives its final report, it would have to be sanctioned by the same Government. It was sought to be urged that this violated the well accepted principle of law that no man could be a judge in his own cause. The Government, it was said, could not be a party and at the same time a judge. This argument has no force. The Commission as constituted consists of judges of the High Court who are quite independent of the Government which figures as a party before them. Their proceedings will be judicial, and according to law and established procedure. After they come to a conclusion, the formal sanction would be given by the head of the administration to conform to the procedural law relating to findings of commissions and special tribunals. It is only where there is a likelihood that the judges would from kindred or any other cause have a bias in favour of the Government that it would be wrong for this Commission to act. Such a thing cannot be imagined of this body of judges. Where they give their opinion the Government has merely to give Its formal sanction and implement it. I hold that this fact cannot militate against the principle that a person cannot be a judge in his own cause.

I would have held that the proceedings before the Special Commission could not be quashed on the ground that there was discrimination between one and another and that it violated the principle of equality before the law, but my hands are tied on account of the pronouncement of the Supreme Court in the case of - Lachmandas Kewalram Ahuja and Another Vs. The State of Bombay, . In that case their Lordships held that any deviation or departure from the established procedure amounted to a discrimination and if there was a discrimination it violated Art. 14 of the Constitution of India and if it violated Art. 14 the proceedings before any commission of special tribunal which were at variance with the ordinary procedure could not be justified and, therefore, the commission would be deemed to have no jurisdiction after the coming Into force of the Constitution. In adverting to the various deviations from the established procedure, their Lordships held that the absence of the right to apply for a transfer of the case was detrimental to the interests of the accused and could not be allowed. Holding that this amounted to a discrimination between an accused before the special court and an accused before an ordinary court, the proceedings before special court were held to be without jurisdiction and the conviction was quashed. Applying the above principle, I find that in the proceedings before the special commission, there is no scope for the parties to apply "or a transfer of the cases before any other tribunal in the event of their apprehending that they would not get fair justice. It has to be realised that this Commission was constituted by H.E.H. the Nizam and although under the provisions of the Regulation No. 10 of 1358 F. (which was sanctioned by the Nizam) has the force of the law all proceedings before the Commission would be governed by the CPC so far as may be, no provision has been made to permit parties before the commission to apply for a transfer of the case to any other authority or tribunal. It is not open to any of the parties to move for a transfer because if they did move for a transfer, to which court could the case be transferred? Although the High Court under Art. 227 of the Constitution has powers of superintendence over this Commission, it being only a tribunal within the meaning of Art. 227, the High Court cannot direct the transfer of the case pending before the Commission to any other authority. The difficulty in this case is that S. 24, Civil P. C. cannot be applied, for the simple reason that S. 24 contemplates the transfer by the High Court of any proceeding pending before any court to any court subordinate to it and competent to try. In this case in so far as the ''norihatiyat'' property is concerned, the High Court certainly could get the case transferred to the courts competent to try the case. But with regard to the ''atiyat'' property, so long as the existing law states that enquiry into the succession to ''atiyat'' property shall be by special courts, viz., ''Atiyat'' Courts, the High Court has no jurisdiction to transfer a case pending before the ''atiyat'' Court. This Commission in so far as it enquires into the succession to the jagir properties must be deemed to be an ''atiyat'' Court. It is clear that the High Court''s power to transfer cases is confined to transferring them to the courts constituted under the Civil Courts Act which are subordinate to it and not to the Courts which have special and exclusive jurisdiction known as the ''atiyat'' Courts. It has also to be observed that this body is not competent to pass a decree or order which would be executable as an ordinary court could, for all its findings are only recommendatory and not operative. This also in my opinion deprives the parties before this Commission of a substantial procedural right which they would otherwise be entitled to. These facts, according to me are detrimental to the interests of the parties before the Commission.

For the above reasons. I hold that the proceedings before the Special Commission cannot continue and writ of prohibition will issue prohibiting the continuance of the proceedings hereafter. A writ of certiorari will issue quashing the proceedings before the Commission. I do not make any order as to costs having regard to the particular circumstances of this case.