LexSAHIBZADA SAIYED MUHAMMED AMIRABBAS ABBASI & OTHERS versus THE STATE OF MADHYA BHARAT & OTHERS
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February 26 • 138 SUPREME COURT REPORTS SAHIBZADA SAIYED MUHAMMED AMIRABBAS ABBASI & OTHERS v. THE STATE OF MADHYA BHARAT & OTHERS [1960] (B. P. SINHA, C.J., JAFER IMAM, A.K. SARKAit. K. N. WANCHOOAND J.C. SHAH, JJ.) Personal Law-Right to Guardianship-If can be enforced by way of constitutional remedy-Constitution of India, Art. 32. The first petitioner, who had migrated to West Pakistan, applied to the High Court of Madhya Bharat for a writ of habeas corpus for directions to produce petitioners 2 and 3, his minor children, before the Court on the allegation that they were wrongfully confined and, upon the dismissal of the said applica- tion, applied to the District Judge of Ratlam under the Guardian and Wards Act for his appointment as guardian of the person and property of the said minors. The District Judge rejected the application and appointed the second respondent as such guardian. The first petitioner appealed to the High Court against the said order of the District Judge but that appeal was dismissed. He applied for special ·leave to appeal to this Court but that application was also rejected. Thereafter the first petitioner, as natural guardian of petitioners 2 and 3, filed the present petition under Art. 32 of the Constitution. His case in substance was that the interest of the second respondent was adverse to that of the minors, that he had misappropriated their property and that the first respondent, the State of Madhya Bharat, was bound to take steps to protect the property of the minors which it had failed to· do and had thus rendered itself liable to make good the loss sustained by the minors in consequence. Held, that the petition was wholly misconceived, and must be dismissed. The Court can exercise jurisdiction .under Art. 32 of the Constitution only in enforcement of the fundamental rights guaranteed by Part III of the Constitution. Where on account of the decision of a court of competent jurisdiction, the right alleged by the petitioner does not exist and therefore its infringe- men~ cannot arise, this Court cannot entertain a petition under that Article for protection of the alleged right. A claim as to denial of equality before the law or the equal protection of the laws can be made again:»t executive action or against legislative process but not against the decision of a court of competent jurisdiction. Nor can an order of this Court rejecting an application for special leave under Art. 136 of the Constitution be circumvented by an application for a writ under Art. 32. - - 3 S.C.R. SUPREME COURT REPORTS 139 ORIGINAL JURISDICTION: Petition No .. 217 of 'r960 1956. Petition under Article 32 of the Constitution of Ami~~.;~:~bbasi India for enforcement of Fundamental rights. v. Pandit Nanak Chand, for the petitioners. State of M. B. I. N. Shroff, for respondent No. 1. 1960 February, 26. The Judgment of the Court Shah J. was delivered by SHAH, J.-This is a petition filed by Sahibzada Saiyed Muhammed Amirabbas Abbasi, who will herein- after be referred to as the first petitioner on behalf of himself and as the natural guardian of his two minor children, Kamal Abbas and Jehanzeb Bano, petition- ers Nos. 2 and 3 against the State of Madhya Bharat (now the State of Madhya Pradesh) and three other respondents for an appropriate writ or writs of Habeas Corpus, Mandamus, Certiorari, Prohibition and any other writ, direction or order directing the State of Madhya Bharat immediately to assume charge of the properties of the minor petitioners 2 and 3 and determining the a.mount of loss sustained by the minors and calling upon the State of Madhya Bharat and the other respondents to compensate the minors for the full value of the property lost due to their negligence in the discharge of their respective duties in failing to protect the minors' properties, and calling upon the 4th respondent to produce the minors before this court and directing that the minors be handed over to the custody of some relation who is competent under the Personal Law to have their custody, and calling upon the Chief Secretary of the State of Madhya Bharat to furnish full particulars of the trust property released in favour of the 2nd respondent and directing the 1st respondent to produce in this court the box of jewellery entrusted to it with full particulars' regarding its custody f.t:om March 29, 1948, and ascertaining whether the con- tents
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