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Behbood Ali Khan and anr. Vs. Secretary to Government Ministry of Home Affairs, Government of India and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 102 of 1967 and W.P. No. 290 of 1966
Judge
Reported inAIR1969AP106
ActsCode of Civil Procedure (CPC), 1908 - Sections 86 and 87B; Constitution of India - Articles 14, 19(1) and 366(22)
AppellantBehbood Ali Khan and anr.
RespondentSecretary to Government Ministry of Home Affairs, Government of India and anr.
Appellant AdvocateV.B. Sahgal, Adv.
Respondent AdvocateK. Ramachandra Rao, ;D. Narasaraju and ;Answarulla Pasha, Advs.
Excerpt:
.....articles 14, 19 (1) and 366 (22) of constitution of india - writ petition filed seeking consent of central government to sue second respondent and on death of second respondent petitioner pleaded to bring successor of second respondent on record as legal representative - permission not given to implead successor of second respondent - petitioner went in appeal contending that section 87b violative of articles 14 and 19 (1) - second respondent under article 366 (22) enjoys immunity from civil suit - held, permission sought to implead successor could not be granted. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2)..........khan and nazni begum (hereinafter referred to as the petitioners) questioning the orders of the central government refusing to give consent to sue nawab mir osmam ali khan, h. e. h. nizam the vii, ex-ruler of hyderabad under section 86 read with section 87-b of the c .p. c. the respondents in the writ petition are: (1) the secretary to govt. ministry of home affairs, government of india, new delhi and nawab mir osman ali khan, h. e. h. the nizam the vii, the ex-ruler of hyderabad, who has since died.2. the petitioners prayed for the quashing of the orders of the central government refusing to give consent to sue the then ex-ruler and for declaring section 87-b, c .p. c. as invalid and for the issuance of a writ in the nature of mandamus directing the ministry of home affairs,.....
Judgment:

Narasimham, J.

1. The writ Appeal is preferred against an interlocutory order in the writ petition by Krishna Rao, J., dismissing on record Prince Mukarram Jah Bahadur alias Nawab Mir Barkat Ali Khan, H. E. H. Nizam the VIII as the legal representative of late Nawab the VII, who died on 24th February, 1967 and who was the 2nd respondent in the writ petition. The writ petition itself is filed by Nawab Mir Bahbood Ali Khan and Nazni Begum (hereinafter referred to as the petitioners) questioning the orders of the Central Government refusing to give consent to sue Nawab Mir Osmam Ali Khan, H. E. H. Nizam the VII, ex-Ruler of Hyderabad under Section 86 read with Section 87-B of the C .P. C. The Respondents in the Writ Petition are: (1) The Secretary to Govt. Ministry of Home Affairs, Government of India, New Delhi and Nawab Mir Osman Ali Khan, H. E. H. the Nizam the VII, the ex-Ruler of Hyderabad, who has since died.

2. The petitioners prayed for the quashing of the orders of the Central Government refusing to give consent to sue the then ex-Ruler and for declaring Section 87-B, C .P. C. as invalid and for the issuance of a Writ in the nature of Mandamus directing the Ministry of Home Affairs, Government of India, to accord such consent as was sought by the petitioners and for any other order as the Court may deem fit and proper in the circumstances of the case.

3. On the death of the 2nd respondent, his successor, H. E. H. the Nizam the VIII. who was recognised as such by the President under Article 366(22) of the Constitution was sought to be impleaded.

4. The Writ appeal and the writ petition raise a common question as to whether H. E. H. Nizam the VIII the successor of H. E. H. Nizam the VII (2nd respondent in the writ petition) could be brought on record as his legal representative and the writ proceedings continued as against him.

5. The relevant facts are these: Sardar Begum Sahiba died on 11th August, 1950 issueless leaving her sister, Zainab Begum Sahiba, as her heirs of Zainab Begum Sahiba, alleged that they are the lawful claimants of the 'Matruka' of Sardar Begum Sahiba, which, according to the petitioners, was under the supervision of H. E. H. Nizam the VII through the Saraf-e-Khas Estate Committee. The petitioners, therefore, made an application to the Secretary to the Government, Ministry of Home Affairs, Government of India, New Delhi, to give them consent for filing a suit against Nawab Mir Osmam Ali Khan, H. E. H. Nizam the VII, ex-Ruler of Hyderabad.

The Government of India would appear to have called for certain information from the petitioners and the Nizam the VII and refused to give consent, as sought, by their letter No. F20/6/57- Poll .III dated 1-4-1958. It would appear that further representations were made to the Government of India and the petitioners were referred to the refusal of consent in their letter dated 1-4-1958. The petitioners have filed the writ petition on 25th February, 1966 challenging the refusal of consent by the Central Government referring to the letters affirming their decision already communicated in their letter dated 1-4-1958.

6. The 1st respondent, the Secretary to the Government, Ministry of Home Affairs, Government of India, filed a counter stating inter alia in paragraph 4 thus:

' The Government of India in the Ministry of Home Affairs by its letter No. F 20/6/57-Poll. III dated 24-4-1957 requested the petitioners to furnish documentary evidence prove their claims. Certain documents were produced by the petitioners in November, 1957. After a careful consideration of all the aspects of the case, the Government of India came to the conclusion that there were no valid grounds for granting consent to the petitioners to sue the Ruler of former Hyderabad State and the Petitioners were accordingly informed in the Ministry of Home Affairs letter No. F.20/6/57-Poll. III dated 1-4-1958 that the consent asked for cannot be granted. Similar requests made by the petitioner's Advocates were also considered by the Government of India, and they were informed in Ministry of Home Affairs Letters NO. F.20/51/62-Poll. III dated 17-9-1962 and F.20/18/64.-Poll .III dated 16-3-64 and 318-1965, regretting the inability of the Government of India to revise their earlier decision in refusing consent.'

It was further pleaded that Sec. 87-B C .P. C. was not repugnant to Articles 14 and 19(1)(f) of the Constitution of India as impugned by the petitioners and that the adequacy or otherwise of the reasons that weighed with the Central Government in withholding the consent are not justiciable in a Court of law. The petition was also opposed on ground of delay and laches. It was at this stage that H. E. H. the Nizam, the VII (2nd respondent in the writ petition) died and an application made to implead his successor, H. E. H. Nizam the VIII, was rejected by Krishna Rao, J.

7. The first contention raised by Sri Sahgal was that Section 87-B of the Civil Procedure Code infringes Articles 14 and 19(1)(f) of the Constitution of India. We cannot possibly entertain this challenge as the Supreme Court has held consistently that Section 87-B is not violative of these Articles of the Constitution.

8. In Mohanlal v. Swami Man Singhji, : [1962]1SCR702 , the Supreme Court rejected the contention that Section 87-B, C .P. C. was ultra vires of Article 14 of the Constitution. In Narottam Kishore v. Union of India, : [1964]7SCR55 , the same view was reiterated by the Supreme Court. The earlier decision in : [1962]1SCR702 was recalled and affirmed and further the challenge that Section 87-B, C .P. C. offended Article 19(1)(f) of the Constitution was considered and rejected. In Tokendra Bir Singh v. Govt. of India, : AIR1964SC1663 , the earlier decisions of the Supreme Court were recalled and it was held that the provisions of Sections 86 and 87-B, C .P. C. were constitutional and valid.

9. The learned Counsel, Sri Sahgal, however, relies on the observations in the judgment of the Supreme Court while discussing the partial or conditional consent to the institution of the suit in respect of some properties. The particular observations on which he lays accent are these:

'It is plain that Section 87-B is intended substantially to save the Rulers of former Indian States from harassment which would be caused by the institution of frivolous suits excepting cases where the claim appears to be frivolous prima facie. the Central Government should normally accord consent to the litigants who want to file suits against Rulers of former Indian States whenever it appears that the claims disclosed justifiable and triable issues between them and the Rulers sought to be sued. Normally, it is not the function of the Central Government to attempt to adjudicate upon the merits of the claim intended to be made by the litigants in their proposed suits that is the function of Civil Courts of competent jurisdiction.

xx xx xx and further thus;

'The authority conferred on the Central Government under Section 87-B is, as we have observed in the case of Narottam Kishore Deb Verma, W. P. No. 87 of 1962 dated 6-3-1964, : [1964]7SCR55 out of tune with the equality before law which is guaranteed by Art. 14 and if may even affect the litigants' fundamental rights under Article 19(1)(f) and (g) and so, it would be necessary for the Courts to examine the validity of the orders passed under Section 87-B where by consent has been refused in part only, with meticulous care.'

These observations are plainly relevant to the case of according partial consent on an appraisal of the merits of the claim. These observations cannot, therefore, be understood as in any way detracting from the repeated pronouncements of the Court affirming the validity of Section 87-B, C .P. C. and that Section 87-B has not infringed Articles 14 and 19(1)(f) of the Constitution as is sought to be contended now, Further discussion on this point is, therefore, unnecessary.

10. The second question , which is vital to the determination of these matters is whether H. E. H. Nizam the VIII, the successor of late H. E. H. Nizam the VII, could be brought on record as his legal representative and writ proceedings continued.

11. The proposed legal representative, Nawab Mir Barkat Ali Khan, H. E. H. Nizam the VIII, filed a counter raising the following objections. We prefer to extract here the pertinent parts of his counter-affidavit:

xx xx xx

I wish to raise two fundamental objections of a preliminary nature about the maintainability of the present petition:

(a) The main writ petition itself is to quash letters of the Government of India or to issue a writ in the nature of Mandamus directing the respondent No. 1 Government of India to accord sanction to the petitioners to sue respondent No. 2 in a Court of competent jurisdiction. The relief namely a direction to accord sanction to sue the deceased Nizam is purely personal and the cause of action in the writ petition does not and cannot in law and survive. The writ petition automatically comes to an end and lapses and there is no proceeding to be continued. No question, therefore, of bringing me on record as a legal representative can arise.

(b) without prejudice to the contention raised in paragraph (a) it is alternatively submitted that if this Hon'ble Court were to hold that the cause of action in the writ petition in law can survive, in that event in view of the fact that I have been recognised as the Ruler and successor as admitted in the affidavit of the petitioners de novo permission of the Government of India under Section 87-B Civil Procedure Code. is necessary in order to take proceedings against me. The petitioners have to approach the Government for the requisite sanction and await a decision of the Government of India. IN the absence of taken sanction on proceedings can be taken against me.'

We are convicted that these objections are substantial and are to prevail.

12. H. E. H. Nizam the VIII is the ex-Ruler of Hyderabad State. By virtue of the Presidential declaration issued under Article 366(22), he is entitled to personal privileges one of which is an immunity from civil action. That the consent of the Central Government under Section 87-B C .P. C. is necessary to take proceedings against Rulers of former Indian States is settled law. We, therefore, hold that, in his own independent right by virtue of the declaration of the President under Article 366(22) of the Constitution, he (Nizam the VIII) is entitled to the personal privilege of immunity from civil action. The application made to sue the former H. E. H. Nizam the VII cannot be proceeded with against the H. E. H. Nizam the VIII who has the same personal immunity as the former H. E. H. Nizam the VII had, We do not consider that a request made to sue H. E. H. Nizam the VII could , after his death, be transformed to a request to sue H. E. H. Nizam the VIII. The present application to implead H. E. H. Nizam the VIII as the legal representative of late H. E. H. Nizam the VII and continue the writ proceedings is wholly inconsistent with the request made to sue H. E. H. Nizam the VII, Krishna Rao, J., has observed in rejecting the petition to implead H. E. H. Nizam the VIII as the legal representative of late H. E. H. Nizam the VII thus:

'xx xx xx the prayer in the writ petition is specifically for permission to sue the late Nizam VII by name and there is no other prayer indicating that the suit is intended against the estate of the late Nizam, Under these circumstances, the relief sought was purely personal against the second respondent and hence the petitioners are not entitled to continue the proceedings against his successor. The only remedy of the petitioners is to apply for a fresh sanction to sue the present Nizam under Section 87-B of the Code of Civil Procedure. For these reasons, I dismiss this petition.'

These observations of Krishna Rao, J. express the same view as we have taken.

13. Our attention has been drawn particularly to the counter-affidavit filed by H. E. H. Nizam the VIII in the writ petition, wherein it was stated that a letter had been received from the Ministry of Home Affairs informing him that the petitioners had filed an application to the Government of India for permission to sue him under Section 87-B of the Civil Procedure Code. This is confirmed in the reply-affidavit. We are inclined to say that the petitioners have taken appropriate steps to seek the consent of the Central Government, which, in our view, is the right step to take. The matter is said to be under consideration of the Central Government. We have no doubt that the Central Government will consider the application of the petitioners in the light of the judgment of the Supreme Court in : AIR1964SC1663 .

14. Mr. Sahgal has addressed a particular request to us that the matter may be disposed of expeditiously. We are sure that the matter will be attended to as early as possible. For these reasons, we dismiss the writ appeal. We also dismiss the writ petition as infructuous, In the circumstances, there will be no order as to costs.

15. Writ Petition and Appeal dismissed.


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