48A

Maintainability – Explained the Grounds

DIARY NO : 16435 OF 2023
To,
The Registrar
Honorable Supreme Court of India
New Delhi

Dear Sir,

I, S Venkatesh, am the Petitioner-in-person in the above reference Diary No 16435 of

2023, which was e-filed. For this matter a Defect “Clarify the Maintainability in view of
dismissal of similar matter by this Hon’ble Court vide Annexure P5 as well as the High
Court Madurai Bench at Madras vide Annexure P6 and also in view of para 1D of the
Petition” was notified.

I submit that the subject matter of this petition is the impugned Schedule in the Hindu
Succession Act, 1956, the constitutional validity of which is under challenge in this petition.
To the best of the knowledge and information of the Petitioner there is no judicial decision
made on the validity of the impugned Schedule. Hence this Petition is maintainable.

I humbly submit that the present petition is maintainable on the following additional
grounds and facts:

1. In the earlier Writ Petition in WP(C) 536 of 2022 this Honourable Court had
dismissed it only on the ground that “mandamus cannot be issued to the
Legislature” to implement the recommendation of the 204th Report of the Law
Commission of India, or to enact or amend a statute. The dismissal was based
on a mere technicality, and not on the merits of the case. Hence this instant
petition is not hit by res judicata.

2. Furthermore, in the aforementioned Order of this Honourable Court it was

expressly mentioned that this Honourable court is not expressing any opinion
on the validity of any provision of the Hindu Succession Act 1956 which may
arise in an appropriate case in the future. Therefore, the subject matter of the
petition was not decided by this Honourable Court and is still wide open; and
thus the petitioner is well within his rights to approach this Honourable Court
 48B
under Article 32 of Constitution of India. Hence this petition is a fit case to be
agitated before this Honourable Court.

3. The main prayer in the earlier Writ Petition in WP(C) 536 of 2022 before this
Honourable Court was praying for Writ of Mandamus, while the main prayers
before the Honourable Madurai Bench of Madras High Court in WP (MD) SR
NO 4586 of 2023 as well as this instant petition a prayer for issuing Writ of
Declaration. This significant and impactful difference was not considered by
the Honourable Madurai Bench of Madras High Court, and thus erred in
rejecting the maintainability. Therefore the rejection is no bar for this petition.

4. Furthermore, the Honourable Madurai Bench of Madras High court failed to

notice that the subject matter is open since the Honourable Supreme in its
order rendered in WP(C) 536 of 2022 did not express any opinion on the
validity of the impugned Schedule, which may arise in an appropriate case in
future, and the instant case is a fit case.

5. An unconstitutional provision cannot be allowed to be in force for perpetuity

on technicalities or on an erroneous application of law.

Thus it is evident that the earlier orders were not on the merits but only on limited
technicality, and hence subject matter is open for agitation before this Honourable Court.

Hence, given the above facts, grounds and circumstances the instant petition is
maintainable. I humbly request you to please kindly clear/remove the particular Defect,
please.

Furthermore, I submit that I have addressed the other defects and uploaded the
required, relevant and appropriate documents/files towards curing those defects. I hope these
documents/files will address the Defect Notified and hence would be removed, please.

Thank you.
Yours faithfully

S. Venkatesh
Petitioner-in-person
Place: Madurai Contact No: 8838881892
Date: 24.04.2023 E-Mail Id : ventaky@gmail.com