Patna High Court
Province Of Bihar vs Kamakshya Narain Singh on 1 February, 1950
Equivalent citations: AIR1950PAT366, AIR 1950 PATNA 366
JUDGMENT Reuben, J.
1. This is an appeal by the defendant, the Province of Bihar against an order of temporary injunction passed by the Subordinate Judge, Hazaribagh, in Title Suit No. 39 of 1949, which was then pending in his Court, restraining the defendant from taking over management of the estate of the plaintiff until the disposal of the suit.
2. The plaintiff-respondent is the sole proprietor of a considerable property in the district of Hazaribagh known as the Ramgarh Ettate. He has brought this suit to obtain a declaration that certain statutes passed by the Provincial legislature for the abolition of zamindaris and, pending this consummation, directed at taking over the management of the property of the zamindars is ultra vires. In particular, three pieces of legislation are referred to. Firstly, there is the Bihar Private Forests Act, 1948 (Bihar Act IX [9] of 1948) under which, it is stated, the Government has taken possession of the private forests of the plaintiff. Secondly, there is the Abolition of Zamindaris Act, 1948 (Bihar Act XVIII [18] of 1948) which has not yet been enforced. Thirdly, there is the Bihar State Management of Estates and Tenures Act, 1949 (Bihar Act XXI [21] of 1949) which came into force on 15th November 1949, and under which it is now proposed that Government will take over the management of the Ramgarh Estate, Among other reliefs, the plaintiff seeks for the restoration of his private forests and for a permanent injunction restraining the defendant from taking over the management of his estate. The present appeal is directed against an order of the Subordinate Judge granting a temporary injunction in respect of the relief last mentioned.
3. A mere glance at the Bihar State Management of Estates and Tenures Act indicates that the proposed taking over the management of the Ramgarh Estate is a very serious inroad on the plaintiff's right of private property. The property will come under the charge of the Manager under the Act, who will be entitled to take into his possession such buildings, papers and other properties appertaining to the estate as are essential in his opinion for proper management. The plaintiff will lose his power of management including even his right to receive arrears of rents and profits payable to him on the date of the commencement of management (vide Section 4). Leases of mines and minerals given by the plaintiff will come under the power of review of the Manager, and in certain circumstances it will be open to the Manager to terminate a lease subject to the payment of compensation which may be determined by agreement between the Manager and the holder of the lease (Sections 9 and 12). The Manager will be empowered to determine the secured and unsecured liabilities of the estate and to make arrangements for the satisfaction thereof (Chap. V and VI). The Manager will also represent the proprietor in pending litigation and, apparently, with the previous sanction of the Provincial Government, will be empowered to admit claims against the estate (Section 32). The power of the proprietor to sue for compensation will be very restricted (Section 31) and what he will receive out of the income of the estate will depend on what allowance is prescribed by rules under the Act, and how much of the surplus income the Manager, subject only to the control of the Provincial Government, may consider it necessary to retain (Section 26). In view of these circumstances there can be no doubt that there is danger of irreparable injury, and that the balance of convenience is entirely on the side of the plain-tiff. These points, therefore, have not been urged by the learned Advocate-General who has confined himself to one point, namely, that the suit itself is bad for want of compliance with Section 80, Civil P. C. Section 80, he urges, is an imperative section Bhagchand Dagadusa v. Secy. of State, 54 I. A. 338 : (A. I. R. (14) 1927 P. C. 176); Government of the Province of Bombay v. Pestonji Ardeshir Wadia, 53 C. W. N. 489 : (A. I. R. (36) 1949 P. C. 143) and Secy. of State v. Sagarmal, 20 Pat. 39i : (A.I.R. (28) 1941 Pat. 517) and, herefore, the defect cannot be mended, and the order of injunction passed by the Subordinate Judge cannot be supported. The point raised by the learned Advocate-General is one that will properly form an issue for decision in the trial of the suit. Since the suit itself, subsequently to the admission of this appeal, has been transferred for trial by this Court in exercise of its extraordinary civil jurisdiction, we suggested that this appeal should be considered along with that issue by the Bench trying the suit. The learned Advocate General, however, being anxious for an early decision, we have heard the parties. But our powers in a proceeding of this kind are limited. We are not concerned to decide what is the correct answer to be given to the question in the hearing of the suit, but merely whether there is a fair point for trial Walker v. Jones, (1865) 16 E. R. 151: (3 Moore N. S. 397); Israil v. Shamser Rahman, 41 Cal. 436: (A.I.R. (1) 1914 Cal. 362); Chandidat Jha v. Padmanand Singh Bahadur, 22 Cal. 459 and Brajendra v. Kashibai, 24 pat. 656 : (A. I. R. (33) 1946 pat. 177.)
4. Section 80, Civil P. C., provides for a notice of two months stating, among other things, the cause of action for the proposed suit. A notice purporting to be a notice under tbe section was given in this case on 19th June 1948. The suit was instituted on 13th December 1948. The learned Advocate-General attacks the sufficiency of the notice on three grounds; firstly, that the main relief sought in the suit, and the only relief relevant to the temporary injunction, relates to the State Management Act which is not mentioned at all in tbe notice; secondly, that no cause of action relevant to the State Management Act arose until after it became law in September 1949 and, therefore, the notice given on 19th June 1948, was premature so far as this Act is concerned, and, thirdly, that the cause of action stated in the plaint is not supported by the notice in two particular a, namely, the giving of assent to the Zamindari Abolition Act and the issue of notification under Section 3 of the State Management Act.
5. To understand what is the cause of action on which the present suit is based, it is necessary to read the plaint as a whole. To begin with, the plaint recites the action taken by the Government under the Bihar Private Forest Act of 1943 and its predecessor, tbe Bihar Forests Act of 1916; notice was issued under the earlier Act on 17th July 1946, and was renewed under the 1948 Act, and tbe management of tbe plaintiff's private forests was taken over under the later notification. In this connection, an agreement entered into between the Government of Bihar and the plaintiff in December 1917 relating to the plaintiff's rights in the forests is said to have been cancelled. The plaint urges that tbe plaintiff's status and legal character as a landlord of Bihar baa been seriously denied, endangered and invaded by these two events. The plaint then goes on to allege a definite intention on the part of the defendant to make "further invasion of and encroachment upon" the rights of the plaintiff, and mentions as a means to this end the Zamindari Abolition Act and the State Management) Act. It sums up all these events as being an attempt to deprive the plaintiff of his rights "step by step by different pieces of planned legislation" and asserts that the defendant "has unfairly, illegally and by various pieces of ultra vires legislation deprived tbe plaintiff of some of his age-old legitimate rights, such as rights to possess and manage his own property or portions thereof, and intends further to deprive him of his rights to his estate along various lines by various steps, both executive and legislative."
Attacking the legislation mentioned by him as ultra vires on various grounds, he asks for relief, stating the cause of action specifically to be 17th July 1945, when the first notification under the Forest Act of 1946 was issued, 6th July 1949, when the Zamindari Abolition Act received assent and 26th November 1949, when the notification under Section 3, State Management Act was published in the Bihar Gazette. It is further stated that the cause of action is "a continuing one in this estate, further Action or illegal appropriation being in contemplation."
6. Let us compare this now with the notice which is in two parts, the first part being the notice proper, and tbe second a draft plaint which was sent along with the notice. The notice tells the Government that it has "illegally denied, invaded and thrown clouds" on the status and rights of the plaintiff and intends "further to invade and attack and deny them with ultra vires pieces of legislation, being the Bihar Private Forests Act and the intended Bihar Abolition of Zamindaris Act."
It speaks of 17th July 1946, as the date when the cause of action accrued, but refers further to subsequent action taken under the 1948 Act relating to private forests, and adds that the cause of action is "a continuing one in this case, farther action for illegal appropriation being iu contemplation". The reliefs mentioned in the notice include (1) a declaration that "the intended Bihar State Abolition of Zamindaris Act and other Acts of the same nature or tenor" are ultra vires, (a) a declaration that certain specific provisions of "tbe various Acts or would be Acts which are hereinbefore mentioned" are ultra vires, and (3) an injunction against Government restraining it from enforcing "any of the Acts or proposed Acts or any provision or provisions thereof". The draft plaint is on the same line and corresponds substantially to tbe plaint which forms the basis of this suit, except as regards the reference to the State Management Act which came into being after the notice under Section 80 was given and as to the giving of assent to the Zamindari Abolition Act which also occurred subsequently to the giving of the notice. In para. 23 the draft plaint speaks of a definite intentention on the part of the Provincial Government to throw clouds upon, to interfere with, to invade and even to annihilate" the right, title and interest of the plaintiff and his status and legal character as a landlord. It characterises the cause of action as "a continuing one in this case, further action for illegal appropriation being in contemplation" and includes among the reliefs an injunction against the enforcement of "the Acts or proposed Acts or any provision or provisions thereof."
7. The documents, therefore, support the first answer which is given on behalf of the plaintiff-respondent to the Advocate-General's first contention, that, the plaintiff, by his notice, warned Government that he was attacking the validity of the whole procedure by which he was, bit by bit, being deprived of his rights. The argument is that the cause of action on which tbe plaintiff relies is not an individual Act, but tbe whole course of conduct of the Government directed to this end. The suit, it is urged, is in tbe nature of a hill quia timet, and the plaintiff's right of action arose as soon as tbe threat to his rights became imminent [Story on Equity, Edn. 3, chap. 20, Woodroffe on Injunctions, Edn. 6, p. 15, and Shankar v. H. E. A. Cotton, 40 C. L. J. 515 : (A. I. R. (12) 1926 Cal. 373).] It is pointed out that in the notice and the draft plaint the plaintiff specified the particular acts on which he relied, so far as those acts were then complete, and he included by a general reference the subsequent action that might be taken in pursuance of the purpose there complained of. The inclusion in his plaint of such subsequent action is, it is urged, justified in the circumstances, and reliance is placed for this contention on Chandulal Vadilal v. Gov-ernment of the Province of Bombay, A. I. R. (30) 1943 Bom. 138 : (I. L. R. (1943) Bom. 128). In a suit of this kind, learned counsel urges, the notice given ought not to be construed with great strictness, its object being merely to inform the defendant substantially of the ground of the complaint (Jones v. Bird, (1822) 106 E.R. 1397: (5 B. & Ald. 837).) The object of the notice under Section 80, counsel argues, is to give the defendant an opportunity of considering his attitude and to give him a chance of making amende. Here, it is said, the notice has sufficiently informal the defendant of the nature and particulars of the plaintiff's complaint, and there hag been a substantial compliance with Section 80.
8. Secondly, it is argued in reply to the first contention of the learned Advocate-General that, even supposing it to be found that the absence of mention of the State Management Act is a defect affecting the validity of the notice under Section 80, it should be held in the circumstances of the present case that the service of notice under Section 80 has been waived. Our attention has been drawn to Vellayan Chettiar v. Government of the Province of Madras, 74 I. A. 223 : (A. I. R. (34) 1947 P. C. 197) as an authority that the mandatory nature of Section 80 is not a bar to such a waiver. It is pointed out that the State Management Act came into force on 16th November 1919, and that the notice under Section 3 was issued on the very nest day, and that under the definition of the date of commencement of management (Section 2, Clause (b)) management would commence and the plaintiff would be deprived of his rights, within one month from that date. The contention is that when the Provincial Government, knowing that a notice under Section 80 requires a period of two mouths took action to give effect to the State Management Act, so that within a little over a month of the Act's coming into operation the management of the plaintiff's estate would commence and he would be deprived of his rights, it must be held to have waived its right to notice under Section 80.
9. Learned counsel's answer to the second contention of the learned Advocate-General is contained in what I have said above about the suit being of the nature of a bill quia timet. A suit of this kind, it is said, does not require a completed act in order to give the plaintiff a right of relief. He is entitled to protection from a threatened act which, if completed, would give him a right of action: Emperor of Austria V. Day, (1861) 45 E. R. 961 : (30 L. J. Ob. 690); Mulji Haridas v. Ibrahim Rahimtulla, 58 Bom. 254 : (A. i. r. (19) 1932 Bom. 166) referred to by the learned Advocate-General was decided on its own peculiar facts. What was impugned there was not an Act of the Legislature, but merely a Bill proposed to be introduced in the legislature, and an injunction was sought to prevent its introduction. Beaumont C.J. as he then was, pointed out that the Bill might not be passed in that form, and observed that it would be perfectly futile for the Court to declare that in the form in which it was proposed to be introduced it was ultra vires, Kesoram Poddar & Co. v. Secy. of State, 54 Cal. 969 ; (A. I. R. (15) 1928 Cal. 74) is also distinguishable on the facts. There the suit was baaed on an alleged breach of contract. Chotzner J., held that the suit was barred, more than three years having elapsed between the breach and the institution of the suit. On an alternative case suggested on behalf of the plaintiff, his Lordship observed that on the case suggested there would be no breach at all, and so the cause of action for a suit would not yet have arisen.
10. The answer to the third contention is also contained in the above argument, the contention being that what the learned Advocate General speaks of as new causes of action not covered by the notice are merely individual facts in continuation of the cause of action stated in the notice, which facts have come into existence since the notice was given and can, therefore, legitimately be included in the plaint.
11. Having given my careful consideration to the above contentions, I am satisfied that there is a fair case to be considered at the trial, and that the injunction granted by the Sub-ordinate Judge is justified.
12. On the above grounds, I would dismiss the appeal, but is the circumstances of the case, I consider it fair that the parties should bear their own costs in this Court.
Jamuar, J.
13. I agree, Service of notice as required under Section 80, Civil P. C. is mandatory. That a notice under that section has been served upon the defendant, the Province of Bihar, is common ground. The matter for enquiry is whether that notice is in sufficient compliance of the law; and, alternatively, whether in the particular circumstances of this case, the defendant can be said to have waived the right to receive such a notice: there is no inconsistency between the propositions that the provisions of Section 80 of the Code are mandatory, and must be enforced by the Court and that they may be waived by the authority for whose benefit they are provided, and it is accordingly competent for the defendant in a suit to which Section 80 applies to waive his right to a proper notice vide Vellayan Chettiar v. Government of the Pro-vines of Madras, 74 I. A. 228 : (A. I. R. (34) 1947 P. C. 197). These are fair questions to be more properly determined at the hearing of the suit. For all these reasons, it is only right that the order of injunction passed by the learned Subordinate Judge ought to continue pending decision in the main suit.