Bhaskar Bhattacharya, J. - (1.) These two mandamus appeals have been assigned to this Bench by the Hon'ble the Chief Justice after the Supreme Court has remanded the matters back to this Court in the light of the observations made in the order of that Court.
(2.) The facts giving rise to these proceedings may be precised thus: (a) One Syed Fateyab Ali Meerza, (hereinafter referred as the writ petitioner), filed a writ application before this Court thereby praying for declaration that the provisions of the Murshidabad Estate (Management of Properties) and Miscellaneous Provisions Act, 1980 (West Bengal Act 55 of 1980) are ultra vires the Constitution of India and void and for commanding the respondent Nos.1 and 2 to rescind, revoke, cancel and/or withdraw the said Act and to forbear them from giving effect thereto. The other consequential prayers including an order of injunction restraining the respondents from interfering with the affairs of the Murshidabad Estate or with the possession of the writ petitioner and his tenants in respect of Premises No.85, Park Street, Calcutta were also made therein. (b) In the said writ application, the writ petitioner claimed to be the then Nawab Bahadur of Murshidabad and Amir-ul-omrah by virtue of succession from Syed Waris Ali Meerza, the last Nawab, who died on November 20, 1969. According to the writ petitioner, his great grandfather, Faridoon Jah Syed Mansoor Ali Khan was the Nawab of Bengal. Bihar and Orrisa and was in law the independent Ruler of Suba Bengal and in view of differences which arose between the subsequent Nawab and the then Government of India, an Indenture dated 12th March, 1891 was made between Secretary of State for India of one part and Syed Hassan Ali Khan Bahadur, the then Nawab, on the other part and by virtue of the said Sanad, an annual payment of Rs.2,30,000/- from the revenue of the Government British India was settled to the Nawab Bahadur of Murshidabad as mentioned therein with certain other privileges. (c) Immediately after the execution of the said Indenture, the Murshidabad Estate Act (Act 15 of 1891) was passed by the Government of India to confirm and to give effect to the said Indenture dated 12th March, 1891 and the effect of the said Act read with the Indenture was to guarantee the payment of annuity and/or pension of Rs.2,30,000/- per annum or Rs.19, 116 - 10 annas-8 paise per mensem and also to secure the vested right to the scheduled property to the Nawab Bahadur for the time being. It was further provided that such estate would be descendible to the lineal heirs male of the said Nawab Bahadur according to the custom of primogeniture, the eldest male of the eldest branch being preferred. (d) Subsequently, on 21st September, 1933, the Indian Legislature passed the Murshidabad Estate Administration Act, 1933, to provide inter alia, for the appointment of a Manager on behalf of the Secretary of the State of India in respect of the management of the properties of the Nawab Bahadur of Murshidabad and to afford protection against the liabilities to which he was exposed by reason of his debts and to prevent further debts and to repayment to his creditors and make provision for the payment to Nawab Bahadur for a sum sufficient for the maintenance of his position and dignity. (e) In terms of the provisions contained in the said Act, the then Government of Bengal appointed Managers under the said Act who took possession of all the properties of the Nawab Bahadur of Murshidabad for the management and since 1933, the successive Managers appointed under the said Act managed the said estate which had an approximate income of several lakhs of rupees. (f) By virtue of the provision contained in the Government of India Act, 1935, the properties of the Murshidabad Estate vested in the then Government of Bengal and under section 177 of the said Act, all contracts except those mentioned in section 178 thereof, made by the Secretary of the State were deemed to have been made on behalf of the Government of the Province of Bengal. (g) Subsequently, in view of paragraph 2 of Article 8 of the Indian Indenture (Rights, Property and Liabilities) Order, 1947, the Indenture dated 12th March, 1891 on the establishment of the Dominion of India, had the effect, as if, the same had been made on behalf of the Province of the West Bengal. (h) Subsequently, apart from the aforesaid statutes, namely, the Act of 1891, the Act of 1933, and the Murshidabad Act, 1946, the Murshidabad Estate Administration (Amendment) Act, 1959 was passed for better management of the properties of the said Estate and by virtue of those two subsequent statutes, the annuity given in terms of Indenture dated 12th March, 1891 was not interfered with and there was no break in the payment of the annuity till 1969. (i) The West Bengal Legislature subsequently passed an Ordinance which was later on incorporated into a statute, namely, the Murshidabad Estate Administration (Amendment) Act, 1959 by which the proviso to section 5 of the Murshidabad Estate Administration Act, 1933 was deleted and a new proviso was added so that the property might not be restored to the eldest brother of the writ petitioner within sixty days from the date of death of his father. (j) Subsequently, the West Bengal Legislature passed a statute entitled the Murshidabad Estate (Trust) Act, 1963, which was assented to by the Governor on 18th February, 1963 by which several new provisions were made thereby specifying pension and payment of monthly sum to various persons of the Nawab-family including the Nawab Bahadur for the time being. (k) By the said 1963 Act, it was specifically provided that insofar as the said provision did not relate to the descent of title of Nawab Bahadur or a sum of Rs.2,30,000/- that was payable to Nawab Bahadur from the revenue of the Government in pursuance of the Indenture confirmed by Murshidabad Act, 1891 and to the payment thereafter to the Nawab Bahadur in accordance with the provision of the said Indenture, the following Acts were repealed, namely, the Murshida- bad Act, 1891, the Murshidabad Estate Administration Act, 1933, the Murshidabad Act, 1946 and the Murshidabad Estate Administration (Amendment) Act, 1959. It was further provided that the provision of 1963 Act shall have the effect notwithstanding anything to the contrary contained in any other law or in any contract, usage or custom to the contrary. (l) According to the writ petitioner, the Official Trustee of the West Bengal was unlawfully dealing with the Murshidabad Estate by the purported Murshidabad Estate (Trust) Act, 1963 in derogation of the right of the writ petitioner as the then incumbent of the title of Nawab of Murshidabad. (m) Being dissatisfied with the action of the State-respondent in not recognizing the writ petitioner as Nawab and not paying a sum of Rs. 2,30,000/- annually, the writ petitioner in the past moved another writ application on which a Rule being C.R.No.l0165(W) of 1981 was issued and the same was still pending. (n) Subsequently, the State of West Bengal passed a statute, namely, Murshidabad Estate (Management of Properties) and Miscellaneous Provisions Act, 1980 which was published in the Calcutta Gazette on March 11,1981 and by the said Act, according to the writ petitioner, the State Government had illegally and maliciously sought to interfere with the right of the writ petitioner as the then Nawab Bahadur of the Murshidabad and to the said annuity of Rs. 2,30,000/- and in the vested rights in the properties belonging to the Murshidabad Estate and thus, the said Act was challenged being ultra vires on various grounds. (o) A learned Single Judge of this Court partly allowed the writ application after repelling the contentions raised on behalf of the respondent that the writ petitioner had no locus standi to file the writ petition and three sections of the said statute, namely, 8, 10 and 12 were struck down as ultra vires the Constitution of India and the writ petition was, accordingly, disposed of. (p) Both the writ petitioner and the State of West Bengal filed two separate appeals being the present two mandamus appeals before a Division Bench of this Court and by an order dated 22nd December, 1992, the Division Bench came to the conclusion that the writ petitioner had no locus standi to file the writ application and accordingly, allowed the appeal filed by the State and dismissed the appeal filed by the writ petitioner on that ground alone and the other contentions raised in the writ application were not gone into in those appeals. (q) Being dissatisfied, the writ petitioner filed two appeals before the Supreme Court of India by special leave and during the pendency of those appeals, the original writ petitioner died on 3rd January, 1998. Before the Supreme Court two applications were filed, one by Sajid Ah Meerza for being substituted as legal representative of the writ petitioner and the other by Syed Mohammed Abbas Ali Meerza claiming the same relief of substitution as the legal representative of the original writ petitioner. Sajid Ali Meerza was claiming to be the legal representative on the basis of being the son by muta marriage of the second Nawab, Wasif Ah Meerza and the other applicant being Syed Mohammad Abbas Ah Meerza was asserting to be the legal representative as the eldest son of the daughter of second Nawab Wasif Ah Meerza who died before the death of the writ petitioner.
(3.) As there was dispute between the two applicants as to who was entitled to become the legal representative of the original writ petitioner for the purpose of those appeals, the Supreme Court decided to bring on record both of them and thereafter, came to the conclusion that the original writ petitioner, namely, Sayed Fateyab Ali Meerza had the locus standi to file the writ petition and thus, set aside the order passed by the Division Bench and remanded the matter back to this Court for deciding other questions involved in the appeals. The Supreme Court, however, directed this Court to decide as to whether any of the two applicants could be substituted as the legal representative in place of original writ petitioner.;