Patna High Court
The Bukhtiarpur Bihar Light Railway Co. ... vs The District Board And Anr. on 29 September, 1950
Equivalent citations: AIR1952PAT23, AIR 1952 PATNA 23, ILR 30 PAT 287
JUDGMENT Lakshmikanta Jha, C.J.
1. There are two applications before us; one of them is under Article 133, and the other under Article 132 of the Constitution. Both of them arise out of the same order, and we are asked to certify that the case involves a substantial question of law as to the interpretation of the Constitution, or, at any rate, it is a fit case for appeal to the Supreme Court within the meaning of Article 133, Clause (i) (c).
2. The petitioner is a public limited liability company and owns an undertaking known as the Bukhtiarpur-Bihar Light Railway, hereinafter to be referred to as the "Light Railway". The opposite party No. 1 is the District Board of Patna and the opposite party no. 2 is the Chairman of the District Board.
3. The facts giving rise to the present applications are shortly these; The Light Railway was established about the year 1901 under the provisions of the Bengal Tramways Act, 1883 (Act III [3] of 1883) and under an agreement dated 21-8-1901 between the promoters of the Company and the District Board of Patna the latter had a right of purchasing the Light Railway, subject to certain conditions, in accordance with the provisions of Section 41 of the Act. It is alleged that the District Board on 16-12-1949, gave six months' notice in writing to the Company, according to the provision of Section 41 of the Act, declaring its intention to exercise its right of purchasing the Light Railway with effect from 25-6-1950. On 17-5-1950, the petitioner moved this Court and prayed for a writ of mandamus restraining opposite parties NOS. 1 and 2 from taking possession of the Light Railway "except in due course of law." A rule was issued by this Court, giving rise to miscellaneous judicial case No. 120 of 1950, and an ad interim order of injunction was also made. This case came up for hearing before a Division Bench of this Court, and on 23-6 1950, a consent order was passed. One of the terms of the agreement between the parties, runs thus;
"2. The District Board will take possession of the undertaking, viz, the Bihar Bukhtiarpur Light Railway (including the Rajgir extension) only after the purchase, to which the District Board claims to be entitled, has been legally completed". After the consent order was recorded the ad interim order of injunction was vacated."
4. The petitioner's case is that the opposite party disturbed its possession by a forcible entry at midnight of 24-6-1950, in violation of the consent order, and a petition was moved in this Court on 28-6-1950, praying for a writ of mandamus against opposite parties Nos. 1 and 2 and others, directing them to forbear from interfering with the possession of the petitioner over the Light Railway and also for a rule committing the opposite parties Nos. 1 and 2 for contempt of Court. A rule was thereupon issued giving rise to miscellaneous judicial case No. 139 of 1950.
5. On 19-7-1950, the petitioner filed a supplementary petition on the ground of complete dispossession and obtained a further rule calling upon the opposite parties NOS. 1 and 3 to show cause why a mandatory injunction should not issue against them directing them to restore possession of the Light Railway to the petitioner. These applications came up for hearing before a Division Bench of this Court, presided over by Reuben and Das JJ., who by their order dated 8-9-1950, discharged the rules.
6. The case of the petitioner is that the conduct of the Chairman, District Board, was not straightforward and he entered into the agreement merely as a dodge by which ho induced the Court to refrain from issuing an injunction against the District Board.
7. At the hearing it was admitted that the District Board is in possession of the Light Railway. According to the allegation of the petitioner, dispossession took place since the passing of this Court's order dated 28-6-1950, whereas according to the opposite party, the taking of possession was peacefully effected at midnight of 24th/25th June. My learned brother has observed that an ad interim injunction was granted on 28-6-1950, on misrepresentation of facts by the petitioner. In view of the admission that dispossession is complete, the rule relating to the issue of a writ, to restrain the opposite party from disturbing the petitioner's possession wes discharged and there is no longer any controversy regarding this matter.
8. It has been found that the opposite party has not by its notion complained of committed any contempt of Court, nor has the petitioner made out a case for the issue of a writ of manda mus asked for.
9. On the judgment of this Court the following two questions arise for decision by the Supreme Court: (1) Whether the opposite party has committed contempt of Court; (2) whether it is a case in which mandamus should issue directing the District Board and the Chairman of the District Board to restore possession to the petitioner it being admitted that dispossession is complete. The decision of both these points depends upon the construction of the second clause of the agreement dated the 23rd June 1950, which I have already quoted.
10. With regard to the first point, it may be observed that a contempt of Court may be committed either when a person's action or inaction is in disobedience of an order of a Court or when his action or conduct is in disregard of an undertaking given to the Court. In the case before us the petitioner contends that the action of the opposite party in taking possession of the undertaking before the sale "has been legally completed" is a breach of an undertaking to the Court and, therefore, they are punishable by committal. Alternatively, be contends that the agreement together with the Court's order thereon amounts to an injunction to the District Board not to take possession till the title is complete and its injunction has been disobeyed. In order to appreciate the argument I consider it necessary to state the position arising on the consent order.
11. The order of this Court incorporating the agreement is divisible into two parts, namely, (1) the agreement between the parties, and (2) the command of the Court superadded to it. It is open to two constructions. According to the view of the Calcutta High Court in the case of Niska Kanto v. Saroj Bashini, A.I.R. (35) 1948 Cal. 294, as well as the view taken by the learned Judges in this ease a consent order remains in the domain of contract and no undertaking to the Court can be implied simply by reason of the fact that a command of the Court is superadded to the agreement. It bas been found as a matter of construction that no undertaking was given by the opposite party to the Court. According to the decision in this case, taking of possession by the opposite party is in breach of an undertaking to the petitioner and not in breach of any undertaking to the Court. The other view is that as soon as the sanction of the Court is superadded to an agreement, undertaking by the party to the Court is implied. The case of Hari Charan Day v. Ranjit Kumar, 42 Cal. W. N. 203, is in support of this view. The argument of the Advocate General on behalf of the opposite party is that, as no undertaking whatsoever was given for the Court by the District Board or the Chairman, there was no contempt, and the leave should be refused. The argument, of Mr. P. R. Das, on behalf of the petitioner, on the other hand, is that the agreement between the parties embodied in Clause (2) of the consent order, though in form affirmative, connotes in substance a negative as well as an affirmative undertaking. According to Mr. Das, affirmatively there is an undertaking by the District Board to the Company that it will take possession of the undertaking only after the purchase "has been legally completed"; and negatively there is an undertaking or promise to the Court that it will not take possession until the purchase "has been legally completed." He submits further that the order of the Court, read as a whole, is in the nature of a prohibitory injunction by the Court commanding the opposite party to refrain from doing anything in breach of the undertaking. He urges, therefore, that the opposite party is guilty of contempt of Court in taking possession of the Light Railway in violation of the injunction and breach of the implied promise to the Court. The point raised seems to be of great public as well as private importance, and the principle when finally decided by the Supreme Court will be of benefit not only to the parties who are directly involved in the present litigation but to a considerable body of other people also. Therefore, in my opinion, it is a fit case for appeal to the Supreme Court and leave should be granted. The Advocate General, on behalf of the District Board, opposed the grant of a certificate on the ground that the proceeding in this Court was a criminal proceeding and therefore, leave can be granted only under Article 134, Clause (1) (c) of the Constitution. Even treating the proceeding in this Court as a criminal proceeding, I think that, in view of the fact that the principle involved is of wide public as well as private importance, we would be justified in granting a certificate of fitness under Article 134, Clause (1) (c).
12. It may be observed that proceedings in contempt are regarded as anomalous in their nature, possessed of characteristics which render them more or less difficult of ready or definite classification in the realm of judicial power. Hence, such proceedings have sometimes been styled sui generis (In re Murli Manohar Prasad, 8 Pat. 323 at p. 337). We are, however, of the opinion that the proceeding for the purpose of leave to appeal to the Supreme Court is a civil proceeding, because the remedy to the petitioner can be given only by way of a civil execution. Our opinion gets support from the following passage of Halsbury's Laws of England, volume 7, Section 638 (Hailsham's Edition, volume 7, Article 37, p. 24).:
"In circumstances involving misconduct contempt in procedure partakes to some extent of a criminal nature, and then bears a twofold character, implying as between the parties to the proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the State, a penal or disciplinary jurisdiction, to be exercised by the Court in the public interest,"
The recent decision of the Privy Council in the case of S. N. Bannerjee v. Kuchwar Lime and Stone Co., Ltd., 17 Pat. 770 is directly in point. It related to an alleged disobedience of an injunction, and the Judicial Committee treated as civil, proceedings, the proceedings in contempt taken against parties inhibited by the injunction. The injunction in that case was granted in a civil suit but, on principle, there appears to be no difference where, as here, the injunction paid to have been disobeyed is civil in its nature.
13. With regard to the second point raided by the petitioner, the question is whether it involves a substantial question of law within the meaning of Article 132 of the Constitution.
14. The argument of Mr. P. R. Das is that the District Board as a public body and the Chairman as its head have, by illegally taking possession of the Light Railway in breach of their undertaking, deprived the petitioner of its right to hold property; their action, according to him is an invasion of its fundamental right to hold property within the meaning of Article 19, Clause (1) (f) of the Constitution. Therefore, he contends, the petitioner has a right to move this Court to issue a writ of mandamus co the opposite party for the enforcement of its guaranteed fundamental right. He concedes, however, that a right of mandamus cannot issue to a private individual or (sic) an invasion by him of a fundamental right. According to him if a person holding a public office, or a corporation, interferes with the proprietary right of a citizen, it is the duty of the High Court under Article 226 to give adequate relief by issuing a writ of mandamus to the wrong-doer. This argument, in my opinion, is not well founded. A comparison of the provisions of Art 32 with those of Article 226 of the Constitution clearly shows that though the right to move the Supreme Court under Article 32 for the enforcement of the fundamental rights is guaranteed to a citizen, such a right is not guaranteed under the provision of Arc. 226, although the High Court has a wider field assigned to it in that it can issue writ for the enforcement of any of the fundamental rights conferred by part in as well as for "any other purpose." No provision corresponding to the provision of Article 32, Clause (1), finds place in Article 226, Therefore, even if there is an invasion of any fundamental right of a citizen, his right to move the High Court is not guaranteed.
15. An examination of the authorities giving the origin and the history of mandamus and other writs "of like nature" will show that, in order to attract the provision of Article 226, the aggrieved parson must satisfy the Court that the person to whom the writ is to issue is a person holding a public office who is required by reason of such office to do some particular thing which appertains to his office. In my opinion, two propositions are well settled in law by a long course of decisions ; (i) writs of mandamus and other writs "of like nature" can issue for the protection of legal rights to a corporation or to a person holding a public office who is required by reason of such office to do some particular thing which appertains to his office ; (a) it is within the discretion of the Court issuing the writ to decline to interfere by a writ of mandamus or by any other writ "of like nature" if it considers that there is another legal remedy available to the aggrieved person.
16. It may be observed that the writs mentioned in Article 226, including mandamus, have not been defined in the Constitution of India ; but it must be presumed that, when the constituent assembly has delibrately used a term which has a known legal significance in law, it has attached to that term that known legal significance L. P. E. Pugh v. Ashutosh Sen, 56 Ind. App. 83 at p. 101. In order, therefore, to understand the known legal significance of the word "mandamus" we have be look to its history under the common law of England Mr. Das contends that, whatever may be the law as to the granting of writ of mandamus under the common law of England, in India the history of writs begins with the Constitution. He concedes, however, that, as the word "mandamus" has not been defined by the Constitution, its historical origin under the common law of England can be of aid only to ascertain the nature of the writ of mandamus which the High Court is empowered to issue under Article 226 of the Constitution, because, he contends, the writs which the High Court has power to issue are not identical with the common law writs of England but they are "in the nature of" such writs.
17. The historical origin of writs shows that according to the common law of England a writ of mandamus issued from the King's Bench, and was a command directing any person, corporation, or inferior Court of Judicature in the King's dominions to do some particular thing therein specified appertaining to its office or duty, which the Court of King's Bench supposed to be consonant to right and justice, where the performance of the duty sought to be enforced could not be compelled by action. In the case of the Queen v. Commissioners of Inland Revenue, (1883) 12 Q. B. D. 471 at p. 478, the law as to the granting of writs is thus summarised by Bowen L. J. :
"A writ of mandamus, as everybody knows is a high prerogative writ, invented for the purpose of supplying defects of justice, By Manga Charta the Crown is bound neither to deny justice to anybody, nor to delay anybody in obtaining justice. If, therefore, there is no other means of obtaining justice, the writ of mandamus is granted to enable justice to be done."
In Halsbury's Laws of England the law relating to a writ of mandamus is thus summarised :
"The writ of mandamus is a high, prerogative writ of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior Court, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty," Hailaham's edition, Vol, 9, Section 1269, p. 744).
And Stephen in his Commentaries on the Laws of England (vol. III, p. 668) has summarised the law as follows :
"The power of issuing this (mandamus) writ belongs, by virtue of the Judicature Act, 1873, Section 34, primarily to the King's Bench Division. In its form, it is a command issuing in the King's name, and directed to any person, corporation, or inferior Court, within the King's dominions, requiring him or them to do some particular thing therein specified which appertains to his or their office and duty."
18. Thus it is quite clear that the writs of mandamus can issue to a person, (or corporation) requiring him to do some particular thing which appertains to his office and is in the nature of a public duty. It cannot however, be said that baking possession of the Light Railway by the District Board or the Chairman is in breach of duty appertaining to the office of the Chairman or the corporation, for their duties are defined in the Local Self-Government Act.
19. It is equally a well established rule of practice in England that the power of the King's Bench to grant writs, including writs of mandamus, is discretionary. Bat the contention of Mr. Das is that if the other remedy be not equally convenient, beneficial and effectual, the High Court has no power to decline to issue a writ of mandamus to give adequate relief. I may state that an examination of the decisions of the English Courts shows that no one can claim the grant of a prerogative writ as a matter of right.
20. In the case of the King v. The Governor and Company of the Bank of England, (1870) 2 Dougl. 524 at p. 526 : 99 E. R. 334, Lord Mansfield stated the law thus :
"When there is no specific remedy, the Court will grant a mandamus that justice may be done. Bat where an action will lie for complete satisfaction equivalent to a specific relief, and the right of the party applying is not clear, the Court will not interpose the extraordinary remedy of a mandamus."
In re Barlow, (1862) 30 L. J. Q. B. 271, it was held by Hill J -
"It is well settled that where there is a remedy equally convenient, beneficial and effectual, a mandamus will not be granted. This is not a rule of law, but a rule regulating the discretion of the Court in granting writs of mandamus; and unless the Court can see clearly, that there is another remedy equally convenient, beneficial and effectual, the writ of mandamus will be granted, provided the circumstances are such in other respects as to warrant the granting of the writ,"
21. In the case of the Queen v. The Registrar of Joint Stock Companies, (188S) 21 Q. B. D. 131 at p. 136 the law was thus stated by Wills J. :
"It is a well established rule of practice, as to which there can be no doubt, that, a mandamus ought not to be granted where there is another appropriate remedy. I do not wish to pat it so high as to say that the other remedy must be as convenient, for I think that if no reasonable objection can be taken to the alternative remedy a mandamus ought not to be granted."
Mr. Das, however, contends that whatever may be the governing principle laid down by the Judges of foreign Courts in issuing writs, in India this principle ought not to be extended to cases coming under the Indian Constitution. He submits on the authority of Frederic Guilder Julius v. The Lord Biship of Oxford, (1880) 5 A. C. 214 at p. 323 that even if another remedy be open to a person there may be something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the donee of the power to exercise it for the benefit of those who have that right when required on their behalf. His submission is that under the consent order certain duties were cast upon the District Board and the Chairman of the District Board, and on their acting contrary to the duty it was obligatory on the High Court, as the donee of the power under Article 226 of the Constitution, to enforce such duty by issue of a writ of the nature of mandamus. According to him, the expression "shall have power" used in Article 226, Clause (1) of the Constitution, even though in form it is discretionary, becomes obligatory and the High Court is bound to issue a writ if it is satisfied that there has been an invasion of the legal right. It is contended that the High Court can exercise such power under Article 826, not only when there is invasion of fundamental rights, but also in other appropriate case a, even though another remedy is open to the complainant. In this respect, it is contended, the field of the High Court is wider than the field assigned to the Supreme Court. In my opinion the principles laid down in the case of Frederic Guilder Julius v. The Lord Bishop of Oxford, (1880) 5 A. c. 214 at p. 223 can apply only when a public officer is required by reason of his office to do some particular thing which appertains to his office and he act a in breach of such duty. This principle, I think, cannot be extended to a case where a person holding a public office acts in breach of a duty imposed upon him under a contract. It is not for the Supreme Court to decide whether it was the intention of the framers of the Constitution to guarantee a right to move the High Court for a remedy in every case in which a citizen feels aggrieved, although he may have a remedy by way of a regular suit or otherwise. The Supreme Court has recently observed in the case of Romesh Thappar v. State of Madras, A.I.R, (37) 1950 S. C. 124 at p. 126 as follows :
"That Article (Article 32) does not merely confer power on this Court, as Article 22G does on the High Courts, to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose, as part of its general jurisdiction. In that case it would have been more appropriately placed among Articles 131 to 139 which define that jurisdiction. Article 32 provides a 'guaranteed' remedy for the enforcement of those rights, and this remedial right is itself made a fundamental right by being included in Part III. This Court, is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it refute to entertain applications seeking protection against infringements of such rights."
I would not have felt inclined to grant a certificate but for the fact that a large number of petitions have been filed in this Court and the questions raised before us are matters of wide public importance; and in the absence of any authoritative decision of the Supreme Court directly on the point, I think we ought to grant a certificate under Article 132 of the Constitution in view of the Constitutional questions raised before us.
22. In the circumstances stated above, I would grant a certificate to the applicant for leave to appeal to the Supreme Court under Articles 132, Clause (1), and 133 (i) (c) of the Constitution.
Reuben, J.
23. I agree with my Lord the Chief Justice, and wish to add a few observations.
24. I disposed of the prayer for a writ of mandamus on the basis that the petitioner Company had come to the Court with a false statement and did not deserve a writ. Das, J., held that the right of the petitioner Company had been encroached on but refused to interfere because another remedy was available. Both of us proceeded on the basis that the power under Article 226 is discretionary. It is conceded by the learned Advocate-General that, if there is an infringement of a fundamental right, it is a substantial point for consideration whether or not the power under Article 226 is coupled with a duty. If a duty attaches, the case could not have been disposed of in the manner described above. Das J. would have had to consider whether the right infringed is a fundamental right. If he held it is, he would have had to hold that a writ of mandamus should issue. In the same way I would have had to consider whether any right was infringed and, if so, whether it was a fundamental right. Therefore, in deciding whether our decision can be supported it will be necessary to consider one or both of two questions: (1) Is the right alleged to have been infringed a fundamental right? and (2) If it is a fundamental right, does Article 226 impose a duty in addition to conferring a power? Both of these are questions as to the interpretation of the Constitution of India. That the second of these questions is a substantial question is conceded by the learned Advocate-General. As regards the first question, I am inclined 'prima facie' to answer it in the negative. I would distinguish between the right of a citizen "to hold property" and his title to hold a particular property, in the present case the District Board challenges the title of the petitioner Company to the disputed property but there is no challenge to the right of the Company to hold property. It is not possible, however, to give a definite answer to this question without an investigation which would be inappropriate in a proceeding, the object of which is merely to ascertain whether there is a substantial question of law as to the interpretation of the Constitution. I have no doubt that there is such a question.
25. Some mention should be made of an objection of a preliminary nature which was raised, namely, that an order under Section 162, Indian Companies Act, has been passed by the Calcutta High Court winding up the petitioner Company, and only the Official Liquidator is entitled to prosecute the present petition. The answer is that an appeal has been filed against the winding up order and the appellate Court has stayed "the operation of the (winding up) order" until the disposal of the appeal. The intention of the appellate Court to restore the 'status quo ante' the winding up order is clear from its direction to the Official Liquidator to give up to the petitioner Company all the assets of the petitioner Company. Under Sections 171-A and 178, Indian Companies Act the Official Receiver, who is here the Official Liquidator, is bound to take into his custody all the assets of the Company. This is a statutory duty which has to be performed by the Official Liquidator if he exists as such. The operation of the winding up order having been stayed, however, there is no Official Liquidator and the direction of the Court to which I have referred above is not contrary to law. Much reliance has been placed in opposition to this view on the direction of the Court that "the said Official Liquidator shall hold until the further order of this Court rupees ten lakhs to the credit of the said appellants lying in the imperial Bank of India, Patna, which sum will remain in the said Bank and would be deemed to be in the possession of the Official Liquidator."
This is merely the condition imposed by the Court when granting the stay. All it requires is that the deposit of rupees ten lakhs made by the District Board in favour of the petitioner Company in the Imperial Bank of India at Patna will remain at the credit of the Official Receiver. By an inadvertence he has been described as the "Official Liquidator." This is a mistake of the office of the High Court in drawing up the formal order of stay, and does not indicate an intention to keep the Official Liquidator in existence -- an intention which is quite inconsistent with the direction for staying the operation of the winding up order.