Patna High Court
Subodh Gopal Bose vs State Of Bihar on 14 May, 1968
Equivalent citations: AIR 1969 PATNA 72
JUDGMENT Tarkeshwar Nath, J.
1. This ia an application under Article 215 of the Constitution of India read with Order 39, Rule 2(3) of the Code of Civil Procedure for committing the State of Bihar (the sole opposite Party) for contempt of Court for violating and committing a breach of the urder dated 7-4-1965 passed by this Court in Miscellaneous Appeal No. 78 of 1964.
2. The facts giving rise to the present application are these. On 30-9-1933 the petitioner purchased an estate known as Kuchwar Mahal in the district of Shaha-bad comprising an area of 26,592 bighas and odd (about 16.620 acres) and he came in possession thereof. He quarried limestone in that Mahal since his purchase. There were deposits of iron pyrites, limestone and other minerals in that Mahal. The petitioner carried on his business in the name of Kuchwar Lime and Stone Co, in the said Mahal. On 2-4-1940 he gave notice to the Government under Section 14 of the Mines Act, 1923 about the opening of pyrites mines in the said Mahal, commonly known as Amjhor pyrites Mines. Thereafter, the petitioner continued quarrying limestone and developing the pyrites after spending several lacs of rupees, and he was especially encouraged to do so by the Government of India. By notification No. 1406/LR/ZAN dated 27-10-1953 which was published in Bihar Gazette on 2-12-1953, the said Kuchwar Mahal vested in the Government of Bihar under the provisions of the Bihar Land Reforms Act, 1950, and on 25-1-1954 the estate was handed over to the State, excepting mines, minerals, dhowrahs, quarters, offices, etc. The petitioner continued in possession of the entire estate in respect of the mines and minerals. On 5-2-1954 and 24-5-1954 the petitioner filed petitions before the Collector of Shahabad for formal execution of the leases in respect of the aforesaid minerals in 16.620 acres of land according to Section 9 of the Bihar Land Reforms Act. The Additional Collector of Shahabad recommended by his Memo No Mines 145 dated 2-4-1956 to the Commissioner of Patna Division for the grant of a mining lease of Limestones to the petitioner for an area of 1248.31 acres. The State, however, recognised the petitioner as its statutory lessee in respect of only 2.26 acres for iron pyrites and 118.06 acres only for limestone on certain terms and conditions by letter No. Mines 781 dated 30-12-1959.
3. The petitioner came to know that the State of Bihar was inclined to grant a lease of the pyrites to the Pyrites and Chemicals Development Co. Ltd., and hence he filed Title Suit No. 95 of 1963 on 15-7-1963 in the court of Subordinate Judge, Sasaram against the said Company and the State of Bihar for a declaration of his title in respect of the said mines and minerals over the entire area of Kuchwar Mahal, and he made a prayer for a permanent injunction restraining the State of Bihar from granting a lease to the said Company. Meanwhile, a Mines Tribunal was appointed at Gaya on 17-8-1960 under Section 12 of the Bihar Land Reforms Act, 1950. The petitioner filed an application in the said title suit for a temporary injunction restraining the defendants from interfering with the rights of the petitioner in respect of the mines and minerals in the entire suit property known as Kuchwar Mahal bearing tauzi No. 10742, and he made a prayer for restraining the defendants from carrying on any mining operation whatsoever in the said property and for restraining defendant No. 1 from granting any lease in respect of that property.
The State of Bihar (defendant No. 1) objected to the grant of an injunction. The Subordinate Judge dismissed the said application on 14-12-1963, although he held that the petitioner had a prima facie case. Being aggrieved by the said order, the petitioner filed Miscellaneous Appeal 78 of 1964 in this Court. The petitioner filed an application in that appeal for injunction against the State of Bihar and on 20-11-1964 an order (a copy of which is Annexure A) was passed restraining the State of Bihar from granting any further lease or permit other than the one with respondent No. 2 which had already been granted in respect of the property in dispute.
4. On 7-4-1965 this Court allowed Miscellaneous Appeal No. 78 of 1964 on certain terms. A copy of the Judgment of that Miscellaneous Appeal is Annexure B, and the specific direction given in that judgment, which is relevant for the present purpose, was as follows:
"Until the disposal of the suit, the State of Bihar shall not grant any lease or permit in respect of the limestone quarries in favour of any person or body of persons."
5. The State of Bihar had referred the dispute between the parties to the aforesaid Mines Tribunal, Gaya (Miscellaneous Case No. 64 of 1963), and the dispute was as to the area which should be deemed to have been leased to the petitioner under Section 9 of the Bihar Land Reforms Act. The petitioner took a preliminary objection that the said Tribunal had no jurisdiction to decide that point but that objection was overruled on 23-2-1965. The petitioner then filed an application (C. W. J. C. 178 of 1965) in this Court under Articles 226 and 227 of the Constitution of India and further proceeding before the Tribunal was stayed pending the disposal of the said application.
6. The Pyrites and Chemical Development Co. Ltd. (defendant No. 2) filed an application in the said title suit for deciding at first a question of law as to whether the Court had jurisdiction to determine the extent of area leased out to the plaintiff petitioner or whether that matter was within the exclusive jurisdiction of the Mines Tribunal, Gaya. The learned Subordinate Judge rejected the prayer of defendant No. 2 on 27-3-1965 en the ground that the suit could not be heard piecemeal. Being aggrieved by the said order, defendant No. 2 filed Civil Revision No. 650 of 1965 in this Court and that case was admitted and further proceedings stayed in the said title suit.
7. This Court dismissed the writ application (C.W.J.C. 178 of 1965) on 31-8-1966, holding that the Mines Tribunal had the exclusive jurisdiction to decide the question about the areas deemed to have been leased and that the Civil Court had no jurisdiction to decide that question. On the same day this Court allowed the aforesaid Civil Revision and directed the Additional Subordinate Judge to decide the preliminary issue raised by defendant No. 2.
8. The petitioner filed an application for leave to appeal to the Supreme Court against the order dismissing the writ application, and leave was granted by this Court on 5-10-1966 in S. C. A. No. 182 of 1966, but the prayer for stay was refused. The petitioner filed another application for leave to appeal to the Supreme Court against the order passed in the Civil Revision, and the application was registered as S. C. A. 181 of 1966. Certificate of appeal to the Supreme Court was granted by this Court and further proceedings in the said title suit were stayed till the disposal of the Supreme Court Appeal. In this manner both the appeals were pending in the Supreme Court for disposal.
9. The petitioner learnt that Kalyanpur Lime and Cement Works Ltd. had applied for lease of some lands in Kuchwar Mahal for quarrying Limestone and he got this information when his nephew met the Minister, Mines P. W. D., Government of Bihar in this connection.
10. The petitioner came to learn on 14-3-1968 from the newspaper 'Indian Nation' that the Shoshit Dal Government had notified in the extraordinary issue of the Bihar Gazette dated 12-3-1968 the allegations against the former Chief Minister, Mr. Mahamaya Prasad Sinha and 13 former Ministers of the United Front Government. It was published in the morning edition of 'Indian Nation' dated 13-3-1968 that charge No. 6 against the former Minister of Mines and P. W. D. was that the Council of Ministers in their meeting held on 13-12-1966 approved the proposal for grant of mining lease for limestone over 272.94 acres in village Kuchwar, district Shaha-bad in favour of Messrs. Kalyanpur Lime and Cement Works Ltd.
It was further published in that paper that the Law Department and the Additional (Standing) Counsel, Patna High Court advised that there was no legal bar for executing the lease deed and that in case the land or any part thereof was found ultimately by the Court to have been leased on account of the provisions of Section 9 of the Bihar Land Reforms Act, 1950 to Shri S. G. Bose, then the lease granted to Messrs. Kalyan-pur Lime and Cement Works Ltd. shall stand modified or cancelled as the case might be and then the latter shall withdraw from such area as may be found to have been leased to Shri S. G. Bose under Section 9. Having read this publication, the petitioner learnt that lease had been granted for limestone in respect of 272.94 acres in village Kuchwar to Messrs. Kalyanpur Lime and Cement Works Ltd., but it was in violation of the order passed in Miscellaneous Appeal No. 78 of 1964. In these circumstances, the petitioner alleged that the opposite party (State of Dinar) had deliberately and wilfully violated the order of injunction passed on 7-4-1965. This appli-catipn was filed on 26-3-1968, and it was admitted on the following day, the rule being returnable within a fortnight.
11. This application came up for hearing on 17-4-1968, but still then the opposite party had not shown cause. The learned Government Advocate, however, made a prayer for a week's time to find out the correctness or otherwise of the allegations made in this application, and hence the hearing was adjourned for a week.
12. On 25-4-1968 the opposite party filed an application showing cause, and it has been clearly admitted that the State Government issued order No. 8520 dated 19-12-1966 to the Collector of Shahabad sanctioning the mining lease to Kalyanpur Lime and Cement Works Ltd. for limestone over an area of 272.94 acres in Kuchwar and thereafter on 21-3-1968 the lease in favour of Kalyanpur Lime and Cement Works Ltd. for limestone was executed in respect of 165.65 acres only, inasmuch as the remaining area out of 272.94 acres overlapped the area of Kuchwar Limestone Co. Ltd. and Pyrites & Chemical Development Co. Ltd. The justification, according to the opposite party for the granting of the said lease in violation of the order of this Court dated 7-4-1965 in Miscellaneous Appeal No. 78 of 1964 is that the learned Additional Standing Counsel had advised as follows:
"The injunction order contained in paragraph 2 of the judgment of Hon'ble Ramratna Singh and Hon'ble Bahadur JJ. dated the 7th April 1965 in Appeal from Original Order No. 78 of 1964 is no longer operative after the judgment in C. W. J. C. No. 178 of 1965 dated 31-8-65 of Hon'ble Chief Justice and Hon'ble Sahai, J. Sri Subodh Gopal Bose has, however, filed appeal to Supreme Court against the said judgment in C. W. J. C. 178 of 1965 and he had also prayed in SCA No. 182/66 for staying the operation of the said judgment, but Hon'ble the Chief Justice and Hon'ble Bahadur J, refused his prayer for stay. Therefore the said injunction order is no longer operative."
13. It has been further stated in the show cause petition that the State Government had re-examined the position and had come to the conclusion that the legal advice was the result of confusion and the State Government was misled in sanctioning and granting the mining lease for limestone in favour of Kalyanpur Lime and Cement Works Ltd. and the State of Bihar deeply regretted that the order of injunction passed by this Court could not be respected. After discovering the mistake, the State Government had issued order No. 2103 dated 20-4-1968 to the District Magistrate, Shahabad asking him to direct Kalyanpur Lime and Cement Works Ltd. to refrain from carrying on mining operation in the area covered bv the lease granted to them until further instructions, and a copy of the said order has been marked as Annexure A. The State of Bihar has offered unqualified apology for the contravention of the order of injunction and has stated that the violation was not intentional.
14. The petitioner filed a supplementary affidavit on 20-4-1968 stating that the lease in favour of Kalyanpur Lime and Cement Works Ltd. was registered on 22-3-1968 and the subject-matter of Title Suit No. 95 of 1963 was the whole of Kuchwar Mahal without any exception. The position, according to the substantive petition of the petitioner and the show cause petition of the opposite party can be briefly summarised in the following manner. The suit instituted by the petitioner in respect of the entire area in Kuchwar Mahal is still pending in the court of the Subordinate Judge at Sasa-ram. The order passed by the Division Bench (Ramratna Singh and Bahadur JJ.) on 7-4-1965 in Miscellaneous Appeal No. 78 of 1964 restraining the State of Bihar from granting any lease or permit in respect of the limestone quarries in favour of any person or body of persons until the disposal of the suit is still in force and operative.
The State of Bihar has admittedly granted lease in favour of Kalyanpur Lime and Cement Works Ltd. on 21-3-1968 in respect of 165.65 acres and has thus violated the order of injunction. The substantial question for consideration is as to whether there was any justification for the said violating and what steps, if any, should be taken to undo the wrong already done by the opposite party, so that there will be no further prejudice to the petitioner.
15. Learned counsel for the petitioner submitted that the State of Bihar (opposite party) did not take the least care and precaution before the granting of the lease in favour of Kalyanpur Lime and Cement Works Ltd., particularly when the order of this Court was clear and definite that the State of Bihar shall not grant any lease or permit in respect of the limestone quarries until the disposal of the title suit. He contended that this order could not in any way be the subject-matter of scrutiny in the writ application (C. W. J. C. No. 178 of 1965) and it could not be ignored until it was modified or reversed by a court superior to the High Court. He pressed that in the circumstances of the present case the violation of the said order by the State of Bihar was deliberate and wilful. On the other hand, the learned Government Advocate pointed out that the authorities had acted on the opinion given by the learned Additional Standing Counsel and they had to depend on the advice given to them by the said counsel. It appears from paragraph 3 of the show cause petition itself that in Civil Revision No. 650 of 1965 this Court had passed an order directing the learned Subordinate Judge to decide the preliminary issue about the maintainability of Title Suit No. 95 of 1963.
There is thus no doubt that the suit was still pending for disposal, and the order restraining the State of Bihar from granting a lease was in force till the disposal of the suit. The question in the writ application (C. W. J. C. No. 178 of 1965) was as to whether the Mines Tribunal had jurisdiction to determine the area deemed to have been leased to the petitioner. The position thus is that the order of injunction passed in Miscellaneous Appeal No. 78 of 1964 remained effective in spite of the order passed either on the writ application or in Civil Revision No. 650 of 1965. This being so, it is difficult to appreciate the opinion given that the said injunction order was no longer operative after the judgment in C. W. J. C. No. 178 of 1965. The said opinion must be held to be superficial, and the true scope of the various orders was not at all considered and appreciated. There was no appeal before the Supreme Court by the State of Bihar against the order dated 7-4-1965 passed in Miscellaneous Appeal No. 78 of 1964 and thus there was absolutely no justification for giving an opinion that the said order was "no longer operative".
A careful analysis of the facts and circumstances of the various cases would have made the position quite clear, and it must be observed that when the State Government referred the matter to its legal adviser for opinion about the granting of the lease to Kalyanpur Lime and Cement Works Ltd. it did not receive the proper attention of the said legal adviser and he failed to appreciate the effect of the order of injunction dated 7-4-1965.
16. The order of injunction restraining the State of Bihar from granting any lease or permit had to be strictly carried out and every diligence ought to have been exercised to obey it to the letter, and the State of Bihar could neither disregard it nor treat it as a nullity. Even the State is subject to the jurisdiction of the Court in the matter of injunction and the State and its officers are liable for contempt in case of disobedience and violation of the order of injunction. The State of Bihar not having obeyed the said order to its letter so long as it existed is undoubtedly guilty for the violation of the said order. In the present case, however, it is quite clear that the State of Bihar acted according to the advice of the learned Additional Standing Counsel. But it would not affect the liability of the State of Bihar. The fact that the State of Bihar granted the lease, on the advice given to it may be considered while determining the question of punishment which is to be meted out. In the matter of All India Sugar Mills Ltd. v. Sundar Singh, AIR 1937 Cal 601 one of the defences was that Sardar Sunder Singh was advised by his lawyers that the order restraining him from proceeding with certain criminal proceedings in Punjab was not effective and need not be obeyed. Ameer Ali J., dealing with this defence, observed as follows :--
"With regard to the defences, in my opinion, the fact that the respondent acted upon the advice and (I shall for this purpose assume he did) is not a defence. He takes the risk. It may affect the question of punishment but not of liability, I can find no authority for the proposition that because the defendant is advised or thinks that the order is wrong in law and that he is justified in disobeying it."
17. On a review of the facts and circumstances of this case, I have no hesitation in holding that the State of Bihar is liable for the violation of the order of injunction dated 7-4-1965.
18. The learned Government Advocate referred to the letter dated 20-4-1968 (Annexure A) sent by the Deputy Secretary to the Government of Bihar, Department of Mines and Geology, to the District Magistrate of Shahabad asking him to bring all the facts to the notice of Messrs. Kalyanpur Lime and Cement Works Ltd. and request them to refrain from carrying on mining operations in the area covered by the lease granted to them until further instructions. The Deputy Secretary has further mentioned that necessary steps were being taken for having the orders of injunction vacated as early as possible.
It is difficult to appreciate as to what steps the State of Bihar would take for getting that order vacated, inasmuch as the time for filing an appeal against that order expired in the year 1965. Moreover, this request alone to Messrs, Kalyanpur Lime and Cement Works Ltd. to refrain from carrying on mining operation is not at all sufficient to be of any use to the petitioner. Even if the said Limited Company abstains from carrying on mining operations in the said area, it does not mean that the petitioner would be allowed to carry on those operations in that area. The case of the petitioner was that he had the right to the minerals in the area (16,620 acres) of Kuchwar Mahal and, in fact, he was carrying on mining operation in the entire area. By the granting of the lease a serious prejudice has been caused and Messrs. Kalyanpur Lime and Cement Works Ltd. has become a full-fledged lessee of the State of Bihar.
19. Learned counsel for the petitioner submitted that on account of committing the breach of the said order of injunction, this Court should attach the properties of the State of Bihar according to the provisions of Order 39. Rule 2(3) of the Code of Civil Procedure, as was done in the case of the State of Bihar v. Rani Sonabati Kumari, AIR 1961 SC 221. In that case, however, there was no justification, legal or otherwise, for the State of Bihar to have rushed the notification under Section 3(1) of the Bihar Land Reforms Act, 1950, when its application to modify or vacate the order for interim injunction was pending before the subordinate Court. Moreover, the attitude taken up by the State Government in that case even till the time of the hearing of the case before their Lordships was one which could hardly be commended. Their Lordships observed thus:
"If the Government had deliberately intended to disobey the order of the Court, because for any reason they considered it wrong, their conduct deserves the severest condemnation. If on the other hand it was merely a case of inadvertence and arose out of error, nothing would have been lost and there was everything to be gained, even in the matter of the prestige of the Government, by a frank avowal of the error committed by them and an expression of regret for the lapse, and it is lamentable that even at the stage of the hearing before us, there was no trace of any such attitude."
Ultimately, the appeal of the State of Bihar was dismissed by their Lordships. In the present case, before us, there was the legal advice on which the State of Bihar acted and that has been frankly stated in the show cause petition. Besides this, the State of Bihar has deeply regretted for the violation of the order of injunction and has offered its unqualified apology for the contravention of the said order of injunction. This expression of regret finds place in the show cause petition itself, and it was reiterated by the learned Government Advocate even from the earliest stage of the hearing of the present application. In fact, he tendered unqualified apology on behalf of the State of Bihar even on the day the show cause petition was filed through him.
20. Learned counsel for the petitioner referred to the decision In the matter of Bhola Nath Choudhary Contemner, AIR 1961 Pat 1 and submitted that unless the apology indicated real contriteness and a penitent heart, the apology should not be accepted. Reference in that decision was made to the observations of Vivian Bose, J. (as he then was) in Sub-Judge, First Class, Hoshangabad v. Jawahar Lal Ram-chand, AIR 1940 Nag 407. His Lordship expressed himself as follows:
"An apology is not a weapon of defence forged to purge the guilty of their offences. It is not an additional insult to be hurled at the heads of those who have been wronged. It is intended to be evidence of real contriteness the manly consciousness of a wrong done, of an injury inflicted, and the earnest desire to make such reparation as lies in the wrong-doer's power. Only then is it of any avail in a court of justice. But before it can have that effect, it should be tendered at the earliest possible stage, not the latest, and even if wisdom dawns only at the appellate stage the apology should be tendered unreservedly and unconditionally before the arguments begin and before the person tendering the apology discovers that he has a weak case and before the Judge (when that happens, as it did here) has indicated the trend of his mind. Unless that is done, not only is the tendered apology robbed of all grace but it ceases to be an apology; it ceases to be the full, frank manly confession of a wrong done which it is intended to be."
The question, however, as to whether the apology offered in a particular case is a genuine one, has to be considered on the circumstances of each particular case, and there can be no hard and fast rule about it. I have already indicated that the State of Bihar offered an unqualified apology even in the show cause petition, and the learned Government Advocate representing the State of Bihar adopted the same attitude. I would thus accept the apology offered and no further step is to be taken against the State of Bihar (opposite party). But it must be mulcted with costs of the present application which is assessed at Rs. 200/- payable to the petitioner.
21. The petitioner filed an application under Section 151 of the Code of Civil Procedure on 25-4-1968 for a direction to the State of Bihar to cancel the aforesaid lease granted to Kalyanpur Lime and Cement Works Ltd. alleging that on 29th and 30th March, 1968 the said limited Company wanted to take forcible possession by erecting pillars repeatedly which were demolished by the men of the petitioner and on that occasion serious consequences were averted. Thereafter, the said limited Company again began to disturb forcibly the possession of the petitioner on 20-4-1968 by bringing a large number of men and the said concern began to clear the land for the purpose of mining. There was a great apprehension of breach of the peace, but it was averted. Learned counsel for the petitioner submitted that it was a fit case in which the State of Bihar should cancel the lease in order to bring back the parties to the same position which they occupied prior to the granting of the lease, and an order to this effect could very well be made under Section 151 of the Code. In support of it, he referred to Maharaj Bahadur Singh v. A. H. For-bes, AIR 1922 Pat 382. The petitioner there had instituted a suit against the decree holder, claiming a certain property as his own and, as a preliminary measure in that suit, he had asked for an interim injunction restraining the decree holder from selling that property.
The Subordinate Judge had granted a temporary iniunction restraining the decree holder from selling that property. Later on, an application was made before the District Judge in execution praying that the order for the sale of the property should be suspended in consequence of the interim injunction made by the Subordinate Judge. The District Judge had before him the order of the Subordinate Judge granting the iniunction and the order of the High Court in so far as its terms went might be taken as being an order in the nature of a direction to sell the property upon a particular day and being uncertain as to which of these two orders he ought to obey, he refused to stay the sale of the property. This Court passed an order declaring that the sale which took place on the 11th Nov. should be set aside and treated as of no effect as it took the view that the Court was bound to see that the order of the Court granting the injunction had been carried out and the parties against whom the injunction had been granted should not gain any advantage by reason of having acted in a way entirely contrary to that order. In that case, however, the question arose between the decree holder and the judgment debtor petitioner and a third party did not come in the picture.
22. Learned counsel for the petitioner relied on State of Bihar v. Usha Devi, AIR 1956 Pat 455. The petitioner there had taken possession of a plot in dispute in spite of an order of injunction passed during the pendency of a suit concerning the same and hence an order was passed directing the delivery of possession of that plot to the petitioner and it was held that in the circumstances like those the Court had got inherent jurisdiction to do what had been done in that case by the Munsif on the facts found by him. The application in revision against the order of the Munsif was dismissed. There also the question arose between the parties to the suit.
23. Lastly, learned counsel referred to Magna v. Rustam. AIR 1963 Raj 3. Jagat Narayan, J., relied on the decision of this Court in AIR 1956 Pat 455 and observed that the imposing of penalty on the party guilty of disobedience did not provide any relief to the party in whose favour the order of temporary injunction was passed. The object of such an order was to safeguard the rights of a party against a threatened invasion by the other party, and that if in disobedience of the order of injunction such rights were invaded during the pendency of the suit, relief could only be granted to the aggrieved party by invoking the inherent power of the Court under Section 151 of the Code of Civil Procedure.
24. Learned Government Advocate, on the other hand, submitted that the cancellation of the lease would not improve the situation inasmuch as M/s. Kalyanpur Lime and Cement Works Ltd. would not be party to the deed of cancellation. On the 26th of April, 1968 the hearing of this case was adjourned at the instance of the learned Government Advocate inasmuch as he wanted to ascertain as to whether the said limited company would be prepared to stay their hands and not work out the quarries on the basis of the lease granted in their favour. This application was then again heard on the 2nd of May, 1968 and the learned Government Advocate produced the letter dated 30-4-1968 of the Additional Secretary to the Government of Bihar, Department of Mines & Geology forwarding an undertaking dated 29th April, 1968 given by the Director on behalf of the said limited company that the company would not carry on any mining operation in the area covered under the lease dated 21-3-1968 until further instructions of the Government. The Director has further indicated in that undertaking that possession of the said area was already given to the company by the Mines Department, Arrah. No affidavit has been filed on behalf of the State of Bihar stating that the said undertaking was given by the said company through its Director and thus it is not possible to take it into account. But apart from it, there is no mention at all in this undertaking that the said limited concern would allow the petitioner to carry on the mining operation in the Kuchwal Mahal. The assertion, on the other hand, is that possession had been delivered to the said limited concern. If it is so it will be difficult for the petitioner to carry on any mining operation in the area specified in the lease granted to the said limited company.
The position can be visualised in this manner. M/s. Kalyanpur Lime & Cement Works Ltd. has already got a lease from the State of Bihar whereas there is none in favour of the petitioner so far and in the event of the petitioner going upon the said land chances of obstruction being offered on behalf of the said limited company cannot be ruled out. Even the authorities who have to maintain law and order will find that the said limited concern happen to be the lessee of the State of Bihar whereas the petitioner has no document to support his case. In such a situation the said limited concern would try to maintain its possession, if possession has already been taken and it will be in an advantageous position. I am, therefore, of the view that it would be in the ends of justice to direct the State of Bihar to cancel the lease in question and unless this is done the breach already committed, will continue. Learned counsel for the State pointed out that in the event of cancellation the said limited concern might enforce its right against the State of Bihar on the basis of the lease already granted but that cannot be helped and the State of Bihar itself is responsible for creating a situation like this and placing itself in an extremely embarrassing position.
The Court can very well exercise Us inherent power under Section 151 of the Civil Procedure Code in a case like this otherwise not only in this but in other cases as well a party having committed a breach of an order of injunction by executing either a sale deed or any other deed might urge that the deed had been already executed in favour of the third party and the Court should accept the apology and pass no other order. Order XXXIX Rule 2(4), Code of Civil Procedure provides that no attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the Court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto. This rule contemplates that if the breach continues the property attached may be sold. In the present case I have not passed any order for the attachment. Therefore, the question of sale does not arise, but the scheme of this provision is that in case of continuance of the breach for more than one year, the Court may sell the attached property, in other words, the party committing the breach can be dealt with severely. It is the duty of the Court to see that the breach should not continue and the said limited concern (third party) should not take undue advantage of the lease executed in their favour.
25. As a result of all these considerations, the application of the petitioner under Section 151 of the Civil Procedure Code is allowed and the State of Bihar (opposite party) is directed to cancel the lease executed in favour of M/s. Kalyanpur Lime & Cement Works Ltd. within a period of two months. There will be no order for costs of the present application.
B.P. Sinha, J.
26. I agree.