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Judgment
Shrinivasachari and Jaganmohan Reddy, JJ.—This writ application is in connection with certain succession proceedings which took place in the Crown Grants Appellate Tribunal, the Atiyat Committee of the Hyderabad State. The proceedings started in connection with the succession to the estate of one Muthawar-ul-mulk. The proceedings were initiated by the Respondent No. 5. Hamza Hussain Khan who applied to the Nazim-e-atiyat applying to the court to reopen the'' ''Munthakab'' (decree) granted in 1342 F., in favour of the Petitioners now in this writ petition.
The said Hamza Hussain Khan although he was a party to the proceedings which culminated in the issue of the decree in 1342 F. desired that the whole case should be reopened on the ground that he was a minor at the time of the former proceedings and also that he was at that time out of the Hyderabad State. A Firman was issued by H.E.H. the Nizam in 1347 F. condoning the delay and directing a re-enquiry in the Atiyat Courts Committee.
The original court viz. Nazim-e-atiyat gave its findings in favour of the Respondents Nos. 5 to 11. The Petitioners now before us being aggrieved by the finding of the Nazim-e-atiyat filed an appeal before the Atiyat Appeal Committee and when this appeal was pending, the Constitution of India came into force. The Atiyat Committee upheld the judgment of the Nazim-e-atiyat and held against the Petitioners. Thereafter the Petitioners applied for review of the order of the Appellate Atiyat Committee and the same was rejected by the Committee.
The Petitioners now seek to attack the judgment of the Atiyat Committee on various grounds viz., (a) that the Atiyat Committee not being subject to the superintendence of the High Court as all tribunals are under Article 227 of the Constitution cannot continue to be so after the Constitution and as it is against express provisions of the Constitution, it must be declared to be invalid; (b) that under the old law, the succession proceedings with regard to jagirs with an income of over Rs. 25,000/- used to commence before the Nazim-e-atiyat and an appeal from his judgment would lie to the Appellate Atiyat Committee whose members merely submitted, their recommendations to H.E.H. the Nizam and until the Nizam accorded his sanction to the recommendations of this Atiyat Appellate Committee there was no enforceable decree or order.
It was contended that the Nizam ceased to possess such powers alter the Constitution and therefore any order passed by him sanctioning the recommendation of the Atiyat Committee could no longer be held to be binding; and (c) if it is regarded that the order of the Nizam was an administrative order it could not be interfered with by way of writ proceedings; the rights of the parties could not be determined on the administrative side and, therefore, if such rights have been determined on the administrative side, they could not be uphold after the Constitution.
This case came on for hearing before the Division Bench and the Division Bench having regard to the number of questions of constitutional law involved in the case referred the same to the Full Bench by a referring order dated 22-1-1952. When the case was posted for hearing before the Full Bench, it was brought to our notice that some of the parties had compromised and had come to a settlement and did not wish ''to press this petition.
A compromise petition dated 12-9-1952 purporting to nave been signed by all the Petitioners excepting Petitioners 6, 7 and 14 to 17 was filed. After an adjournment for the purposes of ascertaining the attitude of Petitioners Nos. 6, 7 and 14 to 17 Shri Bishesharnath on behalf of these Petitioners stated that he had no instructions to compromise and that he will press his petition.
As some of the parties wished to press the petition we had to hear the petition on the merits. The case was posted for arguments to the next day and arguments were heard.
A preliminary objection was raised on behalf of the Respondents that the persons who had not joined the compromise viz., Petitioners 6, 7 and 14 to 17 by their next friend Petitioner No. 6 had no right to come in by way or an application for the issue of a writ of Certiorari inasmuch as these parties never filed an appeal before the Atiyat Committee against the order of the Nazim-e-atiyat and the only persons who filed appeals before the Atiyat Committee were Wahed Munwar Khan, Petitioner No. 1, Hasan Munwar Khan, Petitioner No. 2 and Mohsin Munwar Khan Petitioner No. 3, who had compromised and did not want to press the writ petition.
It was argued that by reason of these Petitioners Nos. 6, 7 and 14 to 17 not having filed an appeal against the judgment of the Nazim-e-atiyat, the order of the Nazim-e-atiyat had become final so far as they were concerned and that it was not open to them to question an order which had become conclusive.
It was also urged that the Petitioners had no right of their own as they were only persons entitled to shares under Petitioner No. 1.
It is now well established that it is only a person who is affected or whose rights are affected that can invoke the jurisdiction of the High Court under Article 226 of the Constitution and seek to get the order of tribunal set aside on the ground that it violated any of the fundamental rights conferred by the Constitution or that it was against any provision of the Constitution or for any other matter such as want or excess of jurisdiction.
We would herein quote the observations of Hughs, J. in - McCabe v. Atchison (1914) 235 US 151 (A):
It is an elementary principle that in order to Justify the granting of this extraordinary relief the complainant''s need of it and the absence of an adequate remedy at law must clearly appear. The complainant cannot succeed because some one else may be hurt nor does it make any difference with other persons who may be injured or persons of the same race or occupation.
This observation has been approved by the Supreme Court in the case of - Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, . Applying the test laid down by Hughs, J. and approved by the Supreme Court to the case of the non-compromising Petitioners, it would appear that they did not choose to file an appeal against the judgment of the Nazim-e-atiyat, that is to say, where there was an adequate remedy for them to get an adverse judgment set aside, they did not prefer to resort to that remedy.
Where, therefore, there having been an adequate remedy, they did not prefer to avail themselves of it, it must be held the first ingredient which is necessary for the exercise of the powers of the High Court under Article 226 is wanting. Further oven granting that the Petitioners 6, 7 and 14 to 17 are sub-sharers under Petitioner No. 1 and have the same interest in the case, it would not justify our interference in writ proceedings unless it can be shown that the complainant has been affected.
If a party entitled to complain about want of jurisdiction neglects to do so he must be held bound by the judgment, as has been mentioned by me above. The non-filing of an appeal by the Petitioners who are now attacking the order of the Atiyat Committee estops them from appearing before this Court and praying that die order be quashed. Laches or delay also would justify the rejection of this application. Quite apart from the preliminary objection, we do not find any substance so far as the merits of the petition are concerned.
As regards the argument that the Atiyat Committee could not function or pass any judgment as it ceased to have any jurisdiction after the Constitution, we may point out that the proviso to Section 21, Sub-section (2) of the Jagir Abolition Regulation clearly enacts that in so far as the proceedings relating to the succession to a jagir are concerned, if they are pending proceedings on the date of the coming into force of the Regulation, they would be completed according to the existing law.
The existing law it cannot be denied, was that Atiyat Committee would hear appeals from Na- zim-e-atiyat who constituted the court of original jurisdiction in regard to succession to a jagir property (Crown Grant) and the Appellate Atiyat Committee used to send its recommendations to H.E.H. the Nizam who accorded sanction to the recommendations and the judgment became enforceable.
That pending proceedings should be completed 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 - Ramjilal Vs. Income Tax Officer, Mohindargarh, .
Therefore, there is no substance in the argument that the proceedings which are completed according to the then extant law relating to the proceedings of enquiry into the succession to the estate of jagirdars were wrong.
Incidentally it was urged by Shri Bishesharnath that the Judges who constituted the members of the appellate court were not competent to hear the appeal as under the firman issued by H.E.H. the Nizam the two members constituting the appellate court should be of tire rank of the Ministers and that in this case one of the members constituting the appellate court was Shri Govind Rao who was not a Minister in the State.
It is always the practice of Courts not to go into all the questions canvassed before the court where the case could be decided on a particular point. We are inclined to follow the same procedure in this case.
Inasmuch as we have come to the conclusion that the contesting Petitioners have no locus standi to question the validity of the order now sought to be impugned, it is no longer necessary and it is needless for us to go into other questions raised by the learned advocate for the applicants and in this respect we desire to follow the wholesome rule enunciated by Cooley in his Treatise on Constitutional Limitations which is to the following effect:
In any case where constitutional question is raised, though it may be legitimately presented by the record, yet if the record presents some other clear ground the court may rest its judgment on that ground alone, if the other questions are immaterial having regard to the view taken by the Court.
It is, therefore, not necessary to go into other questions. Since the only Petitioners who have a right to present a writ petition do not wish to press their application, the same is, therefore, dismissed. The Respondents will have the costs of this petition from the contesting Petitioners viz., Petitioners and 7. Advocates fee Rs. 300/-.
Deshpande, J.
I agree with the opinion of my learned Brothers, Srinivasa Chari and P. Jaganmohan Reddy, JJ. that the writ petition is not maintainable. Excepting the Petitioners Nos. 3, 4, 6, 7 and 14 to 17 all the Petitioners have stated that they do not want to press the petition as there was compromise effected between the parties. Those who have not compromised namely Petitioners No. 3, 4, 6 and 14 to 17 are persons who have not filed any appeal against the judgment of Nazim-e-Atiyat Court which was in favour of Respondents Nos. 5 to 11 and against the Petitioners.
In spite of the fact that there was remedy open to them to file an appeal against the adverse finding of the Nazim., Atiyat Court as was done by Petitioner No. 1, Wahed Munwar Khan, they rest contented themselves with the finding of the Nazim, Atiyat Court. Under such circumstances they cannot now come and ask for die exercise of the extraordinary powers of the High Court under Article 226 of the Constitution to quash the findings of the Appellate Atiyat Court.
In order to entitle them to this extraordinary relief they must first of all show the need of it and the absence of adequate remedy at law. When the said Petitioners have not availed of the remedy they are not entitled to invoke the extraordinary remedy of writ. Therefore in my opinion the writ petition is not maintainable and is dismissed with costs.