Patna High Court
Babu Rameshwar Prasad Singh And Ors. vs Md. Ayyub on 23 March, 1950
Equivalent citations: AIR1950PAT527, AIR 1950 PATNA 527
JUDGMENT Reuben, J.
1. This judgment will govern M. a. Nos. 8 and 9 of 1950, both directed against orders of the Subordinate Judge, 2nd Court, Gaya, refusing temporary injunctions in two suits pending in his Court. The appfiala were heard separately but as they covet the same ground and there was necessarily a considerable amount of overlapping in the arguments it will be convenient to deal with them in one judgment.
2. In Title suit No. 1 of 1950 out of which M. A. 8 arises the plaintiffs-appellants are the proprietors of the Sambey Estate in respect of which Estate a notification under Section 3, Sub-section (i), Bihar State Management of Estate and Tenures Act, 1949 was issued by the Governor of Bihar on 24th November 1949 and was published in the Bihar Gazette on 10th December 1949, designating the defendant Mr. Ayyub, Additional Collector, as the Manager under the Act. Under the provisions of this Act, the Estate was due to come under the management of the Provincial Government on the expiry of one month from the publication of the notice, that is to say, on 11th January 1950, and thereupon Mr. Ayyub as Manager would have been entitled to enter into possession of the Estate and to take such other steps towards management and control as are provided for by the said Act. In preparation for this, Mr. Ayyub called upon the employees of the plaintiffs to make over the papers relating to the Sambey Estate and made known on 6th January his intention of entering into possession on the commencement of the management under the Act. In anticipation of this, the plaintiffs on 7th January 1950 filed the suit challenging the State Management Act as ultra vires of the Provincial Legislature and asking for a permanent injunction restraining Mr. Ayyub from taking possession. They impleaded as a defendant only Mr. Ayyub. No notice as contemplated by Section 80, Civil P. C. was served by them on Mr. Ayyub; they alleged instead that they were suing him in his private capacity and that, therefore, no notice was necessary. Pending the disposal of the suit, the plaintiffs asked for a temporary injunction to the same effect.
3. Title suit No. 2 of 1950 giving rise to M. A. 9 relates to the 9 annas Tikari Raj Estate which is the leasehold of the plaintiff-appellant. The notification under Section 3, Sub-section (1), State Management Act relating to this Estate is dated 24th November 1949 and was published in the Bihar Gazette on 14th December 1949. The present suit, filed on 7th January 1950, seeks on the same ground as the other suit to restrain Mr. Ayyub, who is designated Manager in the notification, from taking possession of the Estate. The plaint mentions as the cause of action the fact that Mr. Ayyub is "threating to take actual possession." It describes Mr. Ayyub as "Additional Collector, Gaya," but says nothing about the service of notice under Section 80, Civil P. C. A temporary injunction to the same effect was asked for during the pendency of the suit.
4. The Subordinate Judge held that the suits raise a substantial point of law as to the validity of the State Management Act and that the balance of convenience is on the side of the plaintiffs, but refused a temporary injunction on the ground firstly, that the Province of Bihar is a necessary party and has not been impleaded and secondly, that the suits are defective by reason of the absence of notice under Section 80, Civil P. C. According to him the Province of Bihar is a necessary party because it is "responsible" for the Act and because a determination as to whether or not the Act is ultra vires "affects" the province. As regards the other ground he is of the opinion that Mr. Ayyub is a public officer and was purporting to act in his official capacity within the meaning of Section 80, Civil P. C.
5. It is contended before me (1) that the Provincial Government is not a necessary party; at best it is a proper party, and its absence will not defeat the suits; that if it considers itself a necessary party, Order 27A, Civil P. C. provides the means by which it can intervene;
(2) that notice under Section 80 was not necessary because
(a) Mr. Ayyub was not a public officer,
(b) Even if he was, ha did not put part to act in his official capacity as such, and
(c) The acts of Mr. Ayyub in respect of which these suits have been brought are apprehended or further acts, and S. so hag no application to future acts, and (3) that the questions as to whether the Province of Bihar is a necessary party and whether notice under Section 80 should have been given are issues in the suit, and the test at this stage is whether the plaintiffs have a fair case to raise. The test to be applied by the Court in considering whether an interlocutory injunction should be granted has been recently enunciated by a Division Bench of this Court in Brajendra v. Kashibai, 24 pat. 656 at pp. 659 and 660: (A.I.R. (33) 1946 Pat. 177) :
"I entirely agree that: the learned Subordinate Judge is wrong in holding that in order to make out a prima facie case necessary for granting an interlocutory injunction the plaintiff should establish his title. But it is enough for the plaintiff for granting as interlocutory injunction it he can show that he has a fair question to raise as to the existence of the right which he alleged and can satisfy the Court that the property in dispute should be preserved in its present actual condition until such question can be disposed of. In interfering by an interlocutory injunction the Court, in general, does not profess to anticipate the determination of the right but merely gives it, if, in its opinion, there is a substantial question to be triad, and if, till the question is ripe for trial a case has been made out for the preservation of the property in the meantime in status quo. He is not required to make out a clear legal title but has to satisfy the Court that he has a fair question to raise as to the existence of legal right, and that there are substantial grounds for doubting the existence of the alleged legal right the exercise of which he seeks to prevent. It is no less important to observe that the Court must also, before disturbing any man's legal right, stripping him off any of the rights with which law has clothed him, be satisfied that the probability is in favour of his case ultimately failing in the final issue of the suit. It has to be, at the same time, borne in mind that a mere existence of a doubt as to the plaintiff's right to the property does not itself constitute a sufficient ground for refusing an injunction though it is always a circumstance which calls for the attention of the Court."
6. It is clear from this that the Court has to consider on prima facie grounds, of course the existence of the legal right alleged and the respective strength and weakness of the cases of the parties. The mere fact, therefore, that the points which will ultimately have to be decided as issues in the suit does not exclude them from the consideration of the Court at the stage of an application for a temporary injunction. This disposes of the third contention.
7. The learned Subordinate Judge has not made by any attempt to define what he means by his statement that the Province is 'responsible' for the Act in question. When the Province is impleaded in a Bait it comes in as representative of the executive Government. It is rightly urged on behalf of the appellants that, even if the Provincial Government sponsored the bill which became the Act and piloted it through the different stages of Legislation, it is the legislature which is ultimately responsible for the Act in its present form, and the Province does not become a necessary party to a suit merely because the validity of an Act of the Legislature is challenged in the suit. It is hardly necessary to cite authority for this proposition, and I need only mention United Provinces v. Mt. Atiqa, Begum, 1940 P. C. r. 110 : (A. I. R. (28) 1941 P. C. 16), as a result of which Order 27A wag inserted in the Code of Civil Procedure providing machinery by which the State may intervene in any suit in which a substantial question of Constitutional Law is involved. Had the mere challenge to the validity of a statute been sufficient to make Government a necessary party, a provision of this kind would have been unnecessary. We must guard our-selves, however, from misunderstanding the effect of this provision. It is not intended to supersede Section 80, Civil P. C. The failure to implead the State in a suit where the State is a necessary party and to give the notice required by that section will not be cured because the Advocate-General gets a notice under Order 27A and can apply to make the State a party.
8. The learned Subordinate Judge is equally vague as to how the interest of the Province is 'affected,' but the learned Advocate-General has given a definition. According to him an 'interest' of the Government is created when a statute confers powers or imposes obligations over the Government, and the Government is a necessary party to a suit affecting that 'interest.' This contention is not quite in accord with United Provinces v. Mt. Atiqa, Begum, 1940 F. C. It. 110 : (A. I. R. (28) 1941 P. C. 16), which case as pointed out by Gwyer C. J. at pp. 127 and 123 of the report concerned an Act purporting to confer certain powers on the Government, so that a decision that the statute was ultra vires would put a restriction on that power and to that extent rights of the Crown would cease to exist. The test which their Lordships of the Federal Court seem to have had in their minds was the existence of pecuniary or proprietary rights or interest (vide pp. 123, 124 and 125). But there are cases which seem to support the proposition that the existence of such an interest is not essential (vide Bhagchand Dagadusa v. Secy. of State, 54 I. A. 338 : (A. i. R. (14) 1927 P. C. 176) and Singara Singli v. C. H. D. O. Callaghan, I. L. R. (1947) 28 Lah. 22 : (A. I. R. (33) 1946 Lah. 247 (S. B.) ). The learned Advocate-General has also referred to Sital Prasad v. Asho Singh, 2 Pat. 175 : (A. i. R. (9) 1922 pat. 651) and Jogendra Nath v. Secy. of State, 16 C. L. J. 335 : (17 I. C. 921), in which the test applied wag whether the interest of the persons in question will necessarily be affected by the decree asked for. These two eases do not help here because they relate to interest of the nature of a pecuniary or proprietary interest.
9. Acsepting, for the sake of argument, this as the correct test, the learned Advocate-General has argued that on the pleadings in the plaints it is not open to the plaintiffs to say that the Province has no interest of this kind. His reasoning is that such an interest follows from the ground on which the plaintiffs rely as making the State Management Act ultra vires, namely, that the provisions in it amount to acquisition within the meaning of Section 299, Government of India Act, 1935, and Article 31 (2) read with Article 13 (1) of the Constitution of India. The simple answer is that the case of the plaintiffs is not that the legislation in question is effective of such an acquisition, but that the legislation is void because if valid it would have that effect. Besides, from a perusal of the State Management Act it is obvious that the State cannot and is not intended to claim any interest of a pecuniary or proprietary nature under it; its interest is that of a Sovereign responsible for the proper government of the State, to see that the law is justly administered and that the proprietary interest of the estate owners is duly preserved.
10. Another test suggested by the two decisions last cited is the identity of the person against whom the plaintiffs are really seeking relief. On behalf of the plaintiffs it is urged that they will be content with the relief asked for against Mr. Ayyub; that, under the provisions of Section 52, Specific Relief Act, they are entitled to sue for an injunction against Mr. Ayyub as a substantive relief; that he alone is threatening to invade their rights and purports to act under powers, which, it is true, he derives by virtue of the Government notification, but which come directly from the provisions in the statute. Unlike Bhagchand Dagadusa v. Secy, of State, 54 I. A. 338; (A. I. R. (14)1927 P. c. 176), it is not necessary for them, they say, to impugn the Government notification which is the only act of the Government with which they are concerned; if the Court in dealing with the prayer for injunction hold the statute to be unconstitutional, the notification automatically goes (Cooley's Constitutional Limitations, 1927, Vol. I, p. 382; Norton v. Shelby County, 118 U. S. 425: 30 Law Ed. 178.
11. This argument raises several considerations. First of all, how far will Government be bound by a decision, in a suit to which only Mr. Ayyub is a party, that the statute is unconstitutional. In this connection, the learned Advocate-General has urged on the other side that the temporary injunction must necessarily be refused, because the Government not being a party to the suit can always defeat it by exercising its power under Section 34, Stats Management Act and appointing a new Manager. This argument seems to have impressed the Full Bench in Swighara Singh v. O'Callaghan, I. L. R. (1947) 28 Lah. 22 at pp. 43.44; (A. I. B. (33) 1946 Lah. 247 S. B.), but an answer in terse language has been suggested by Greaves J. in Manik Chand v. Corporation of Calcutta 48 Cal. 916 at p 925: (A. i. R. (8) 1921 Cal. 159).
"Am I to assume that the Local Government and the Land Acquisition authorities will ignore any injunction which I may grant and continue the acquisition proceedings ? It will be sufficient I think in this connection to assume that they will stay their hands in view of my decision and not be parties to what I hold to be illegal and ultra vires action on the part of the Calcutta Corporation and the Improvemen t Trust. As to this see generally Rex v. Spyer, 1916-1 K. B. 595 : (85 L. J. K. B. 630) and the statement by Lord Reading G. J. on p. 610: 'This is the King's Court: we sit here to administer justice and to interpret the law of the realm in the King's name. It is respectful and proper to assume that once the law is declared by a competent judicial authority it will be followed by the Crown."
A statement which I venture to think is as apposite here in India as in the United Kingdom."
Vide also Fischer v. Secy. of State, 26 I. a. 16 at pp. 27-29 : (22 Mad. 270 P. C.) and the United Provinces v. The Governor General-in-Council, 1939 P. C. R. 124 at pp. 136-137 (A. I. R. (26) 1939 F. C. 58: 40 Cr. L. J. 403). This, of course, assumes that the suit is properly constituted. Government cannot be put in a disadvantageous position merely because it can be trusted to respect the lawful decisions of a Court of Law, and different considerations will arise if Government is a necessary party and has not been impleaded.
12. Next, it has been argued by the learned Advocate-General that the suits are not maintainable because no declaration has been asked for and an injunction cannot be granted without a declaration that the State Management Act is unconstitutional. This proposition is of doubtful validity (vide Ramchelawan Sahu v. Bir Surendra Sahi, 16 Pat. 766 at p. 783: (A. I. R. (25) 1938 Pat 22 F. b.) and also Ramautar Sao v. Ram Gobind Sao, 20 Pat. 780 : (A. i. R. (29) 13. The correctness of Norton v. Shelby County, 118 U. S. 425: 30 Law. Ed. 178 has also been challenged and our attention baa been drawn to the footnotes at p. 383 of Cooler's Constitutional Limitations, 1527, Vol. I and at p. 1355 of Cooley'a Constitutional Limitations, 1927, Vol. II and to tha observations at pp. 35-36 of Robtsehaefer, Handbook of Constitutional Law, 1939. The decision in Norton v. Shelly County, (US U. S. 425 ; 30 Law Ed. 178) represents the view of the Supreme Court of the United States and the foot-notes at p. 383 of Cooley contain the view of some of the State Courts which have taken a different view. The passage in Rottschaefer referred to contains an apt commentary on the differing views. It is only as regards de facto officers that according to the learned author the weight of authority is contrary to Norton v. Shelby (118 U. S. 425: 30 Law Ed. 178). This subject is dealt with in the foot-notes referred to in vol. II of Cooley. They are more pertinent to the question whether Mr. Ayyub in this casa was purporting to act in an official capacity. Speaking in general terms whether a person performing under an invalid statute the duties of an office is an officer de facto depends on whether there can be said to be an office of which the duties are to be per. formed. The test is different under the definition of public officer contained in Clause (17) of Section 2, Civil P. C.
14. There is perhaps more weight in the contention of the learned Advocate General that the relief sought in these suits is really a relief against the Provincial Government. It is pointed out that on expiry of the notice under Section 3 U), State Management Act, the estate comes "under the management of the Provincial Government." The Manager, it is said, is merely the instrument through which the Provincial Government operates; the control a responsibility is that of the Provincial Government (vide Sections 9(2) 11, 18 (1), 19, 23(b) and (c), 23(1), 25(2) first proviso, 26, 28, 29, 33 especially 37). As against this we have bean referred to Hukum Chand v. Ran Bahadur Singh, 51 I. A. 208: (A. i.r. (11) 1924 P. C. 156) as an authority that the Manager is not merely an agent of the Government, but is himself the principal under the Act and capable of being sued independently of the Government. It is pointed out that, as is the case under the Chota Nagpur Encumbered Estates Act, the management vestsin the Manager under Section 3(2) (c) of the impugned Act. Reference is also made to A. M. Boss v. Secy. of State, 39 Mad. 781 at p. 785: (A. I. R. (3) 1916 Mad. 1157) which decided that a Government officer exercising statutory power does not act as the agent of Government and to Kailash Mal v. Dwarika Nath, 35 I. C. 788: (A. I. R. (3) 1916 Cal, 825) that the fast that an official is appointed by Government does not make Government necessary party to a suit relating to land appertaining to the office.
15. In this connection the learned Advocate-General cited Mine Safety Appliances Co. v. James V. Forrestal, 326 U. S. Supreme court Rep. 371: 90 Law. Ed. 140. The suit in that case was directed to prevent an Under-Secretary of the United States Nayy from taking action to prevent payment by the Government of money lawfully in the United States Treasury to satisfy the Government's, not the Under Secretary's debt. It related to a contractual liability of the Government, a liability in respect of which a Government servant is not ordinarily bound in his personal capacity. The distinction between that case and the one before us is drawn by Black J. who in the course of his judgment pointed out that the case would have been different if it had rotated to a trespass on property by a public servant in romance on an unconstitutional statute.
16. On the other side, much weight has been attached to the observations of Gwyer, G. J. at p. 136 of the United Provinces v. Governor-General in Council, 1939 P. c. B 124: (A I. R. (26) 1939 P. C. 58 : 40 or. L. J. 403) to the effect that a suit for crediting the fines in question to the Provincial Fund could have been brought against a named Cantonment Board. It was not necessary for his Lordship to consider whether the Central Government would have been a necessary party to such a suit and he did not express an opinion on the point.
17. Before dealing with the second contention on behalf of the appellants, it is necessary to consider a point raised by the learned Advocate-General, that a suit brought against Mr. Ayyub in his personal capacity will not lie, because neither the action so far taken by him nor the future action sought to be restrained is action taken by him in his private capacity. In reply, I would suggest that the suits in respect of which protection is given to public officers by Section 80, Civil P. C, are suits against them in their personal capacity (vide Bhagchand Dagadusa v. Secy. of State, 54 1. A. 338 at p. 353, (A. i. R. (14) 1927 P. C. 176); Revati Mohan v. Jatindra Mohan, 61 I. A. 171 at p. 176: (A. i. R. (21) 1934 P. C. 96); also Halsbury's Laws of England, Edn. 2 (Hailsham) Vol. VI, Articles 537 and 602, and Vol. XXVI Article 579), Hence, the mere fact that Mr. Ayyub is stated to be sued in his personal capacity makes no difference to the maintainability of the suit and we have to examim the pleadings in the light of the provisions in the Civil P. C. to see whether a notice under Section 80 is necessary : Shingara Singh v. O'Callaghan, I. L. R. (1947) 28 Lah.,22 at p, 41 : (A. I. R. (33) 1946 Lah. 247 S. B ).
18. Section 80 protects a public officer in respect of "any act purporting to be done by such public officer in his official capacity". Two conditions are clearly necessary, firstly he must be a public officer; secondly he must purport to act in his official capacity. The appellants would add a third requisite, namely, that the act in question is not a future act.
19. The Code defines a public officer by enumerating a number of categories (Section 2, Clause (17)). The relevant category here is, "(h) every officer in the service or pay of (the Ckown), or remunerated by fees or commission (or the performance of any publia duty", the meaning of which is explained in Bansi Lal v. Mohamad Hajiz, 17 Pat. 706 at p. 710 :: (A. I. R. (26) 1939 Pat. 77).
20. Much stress has been laid by the learned advocate on the fact that Mr. Ayyub is an Additional Collector. He urges that the appointment of Mr. Ayyub as a Manager under the impugned Act would not make him cease to be Additional Collector. On the other side Muhammad Ekram Khan v. Mirza Muhammad, A. I. R. (22) 1935 ALL. 106: (152 I. C. 817) is cited as authority to the contrary, but its correctness has been doubted in Shinghara Singh v. O'Callaghan, I. L R. (1947) 28 Lah. 22: (A. I. R. (33) 1946 Lah, 247 S. B.). Perhaps the correct approach is not by an insistence on the name of the permanent post which the officer in question holds under the Government. The act must purport to be done in his official capacity; can it be said here that he did or proposes to do the acts complained of in his capacity as Additional Collector.
21. Cecil Gray v. Cantonment Committee of Poona, 34 Bom. 583: (7 I. C. 679) cited by the learned Advocate-General deals with category of 'public officers' coming under Sub-clause (g) of Section 2, Clause (17), Civil P. C. This clause prima facie appears to relate to pecuniary or proprietary interests of the State, though I am not prepared to express an opinion without a more detailed consideration of the question than we gave it in the course of the hearing.
22. On the other side it is contended that Mr. Ayyub'a actions, completed or intended, are in purported exercise of powers under the impugned Act and, if that Act is ultra vires, Mr. Ayyub is merely a trespasser and not a public officer, Ganoda Sundary v. Naltni Ranjan, 86 Cal. 28 : (1 I. C. 514) and Frewin v. Lewis, (1938) R. B. 88 cited at p. 85 of Administrator, City of Lahore v. Abdul Majid, A I. B. (32) 1945 Lab. 81: (I. L. B. (1945) Lah. 382 F. B,) ; vide also Norton v. Shelby, 118 U. S. 425 and the connested reference mentioned at pp. 7.8 (supra). The answer suggested by the learned Advocate-Ganeral is that Section 80 must be considered on its own terms. The use of the word "purporting" makes the section very wide is its application and it will protect even corrupt, malicious and illegal acts of a public officer (Nand Kumar v. Pashupati Ghosh, 20 pat. 117 : (A. i. R. (28) 1941 pat. 385 : 42 Cr. L. J. 375); Jageshwar Thakur v. Mahabharath Thalcur, A. I. r. (37) 1950 Pat. 32; Hori Ram Singh v. The Grown, 1939 P. C. R. 159 : (A .I. R. (26) 1939 P. C. 43: 40 Cr. L, J. 468); Gurzicharan Kaur v. Province of Madras, 1944-6 P. c. R. 195 : (A.i.r. (31) 1944 F. c. 41) and Gill v. The King, 75 I. A. 41 : (A. I. R. (35) 1948 P. C. 128; 49 Cr. L. J, 503). The Court should consider the nature of the act complained of and the attendant circumstances: Gurucharan Kaur of Nabha v. Province of Madras, 1944-6 F. C. R. 195 at p. 210 : (A. I. r. (31) 1944 F. c. 41), the test being: "Does the act lie within the scope of his official duty ? Can he reasonably claim that be did this by virtue of his office ? " Gill v. The King, 75 I. A. 41 : (A. I. B. (35) 1948 P.c. 128 : 49 Cr. L. J. 503). If the contention of the learned Advocate-General is correct the question remains: "Was Mr. Ayyub a public officer ? Did he purport to act as such ?
23. The learned Advocate-General contends that, apart from his being an Additional Collector, Mr. Ayyub was a public officer because even after his appointment as Manager under the Act) be remained in the service and in the pay of Government, in other words that there was a post of public officer which existed and which he occupied, independently of whether the Act is unconstitutional or not. In this connection he points out that under the impugned Act the management of the estate is the management of the Government and the Manager is merely the executive through which the Government acts--a contention in support of which he points out that Section 3 (1) (c) provides that the Manager shall be "an officer not below the rank of a Deputy Collector". This argument is not the same as saying that the Manager is the agent of the Government, it is prepared to concede that he is the principal and can be sued without separately impleading the Government, but asserts that the authority he exercises: is the authority of Government. I have indicated at page 10 supra the sections of the impugned Act on which this argument depends. In reply our attention is drawn to Clause (c) of Section 25 (1) of the impugned Act and it is urged that this provides for the Manager to be paid out of the funds of the estate, and, therefore, the Manager cannot be regarded as in the service or the pay of Government. But is that the effect of this section ? Or does it merely contemplate that Government will continue to pay the officer but will reimburse itself by means of a levy under this provision ? In this connection it may be useful to refer to & similar provision contained in Section 4, Government Management of Private Estates Act, 1892, printed at p. 405 of the Bihar Wards Manual, 1941. These are points which call for serious consideration.
24. If Mr. Ayyub can be regarded as being a public officer at the relevant time the acts complained of would prima facie be acta purporting to be done in his official capacity, for it is obvious that he intended to act in his official capacity. It is urged, however, that, if the Act is ultra vires, the office of Manager never came into being and so he cannot purport or have purported to act in an official capacity: (Norton v. Shelby, 118 U. S. 425 : 30 Law. Ed. 178). The answer suggested to this argument has been set out by me at page 14 supra.
25. It remains to consider the contention that these suits are in respect of threatened acts of Mr. Ayyub and that they are in consequence outside the scope of Section 80. The correctness of both these propositions is contested.
26. As regards the first it is pointed out that there are certain acts of Mr. Ayyub which are not merely threatened acts, viz., the acts which are stated to have given rise to the cauae of action in the respective suits. Soma support for this contention is to ba found in Bhagchand Dagadma v. Secy. of State, 64 I. A. 338 at pp. 353 and 357 : (A. I. R. (14) 1927 P. C. 176) and Shingara Singh v. O'Gallaghan. I. L. R. (1947) 28 Lah. 22 at p. 40 : (A. I. R. (33) 1946 Lah. 247 S.B.). On the ether hand, it is said in Arunachelam Chetty v. J. A. David, 50 Mad. 239 at p. 243 : (A. I. R. (14) 1927 Mad. 166), that the cause of action may be a past act but it does not necessarily follow that the suit is in respect of a past act. Here it is argued, however, that the functions of the Manager as such were not to begin till after the institution of the suits--an argument which is subject to the considerations mentioned at p. u above. So, it is necessary to set out the arguments as to the proposition that future acts are outside the scope of Section 80.
27. Stress is laid on Ganoda Sundary v. Nalini Rmjan, 35 Gal. 28 at p. 39 : (1 I.c. 514), and Trustees for the Improvement of Calcutta, v. Chandra Kanta, 44 Cal. 219 at p. 253 : (A.I.R. (4) 1917 Cal. 445), as authorities of the Calcutta High Court, which should be followed by this Court, The former is an obiter dictum of Woodroffe, J., sitting singly on the original side. It was followed without any discussion in the latter case, though the point was not raised as argued before their Lordships. As notice under Section 80 can be waived (Vellayan Ghettiar v. Government of the Province of Madras, A. I. R. (34) 1947 P.C. 197 : (I.l.r. (1948) Mad. aid), this is also an obiter dictum.
28. The point was expressly decided in Arunachelam Ghetiy v. J. A. David, 50 Mad. 239 : (A. i. R. (14) 1927 Mad. 166), in which case Ramesam and Reilly JJ., proceeding on a strict interpretation of the language of Section 80 held that the section does not extend to future acts. There was another line of reasoning by which this result was arrived at by the Bombay High Court based on the purpose of the section (vide Naginlal v. Official Assignee, Bombay, 37 Bom. 243 : (17 I. C. 876)). Their Lordships of the Madras High Court expressly dissociated themselves from this line of reasoning and distinguished Superintending Engineer, Bezwada v. Bamakrishnayya, 58 I. C. 835 : (A. I. R. (7) 1920 Mad, 723), a case relied on for the contrary proposition by the learned Advocate-General.
29. Secretary of State v. Gajanan Krishna Rao, 35 Bom. 362 : (10 I. C. 639) and Secy. of State y. Gulam Rasul, 40 Bom. 392 : (A. I. R. (3) 1916 Bom. 296), arising oat of suits against the Secretary of State in Council, are on a line with Naginlal Chunilal v. Official Assignee, Bombay, 37 Bom. 243 : (17 I. C. 876). These three Bombay cages were overruled by the Privy Council in Bhagchand Dagadusa v. Secy. of State, 54 I. a. 338 : (A, i. a. (14) 1927 P.c. 176), which has been very strongly relied on by the learned Advocate-General as disposing finally of the argument of the appellant that Section 80 does not cover future acts. This is not correct. The proposition refuted by their Lordships was stated by them at p. 354 of the report:
"If the immediate result of the Act would be to inflict irremediable harm, Section 80 does not compel the plaintiff to wait two months before bringing his suit, though if nothing is to be apprehended beyond what payment of damages would compensate, the rule is otherwise and the section applies."
And in the paggg which follows their Lordships state and reject the grounds on which this proposition was basad ; (1) the assumed practical objects with which Section 80 was framed, (2) the desire to protect the plaintiff from exposure to the risk of the execution of an invalid order without practical redress and (3) the application of certain English decisions. The argument about future acts seems to have been raised before their Lordships but they refrained from deciding it, pointing out that there was a completed act, "the order for recovery of tas". (vide p. 357) by which their Lordships meant the order issued. by the Collector in pursuance of the Government notification (vide p. 353).
30. In support of his view of the effect of Bhagchand Dagadusa v. Secy. of State, 64 I.A. 338 : (A. i. R. (14) 1927 P. C. 176), the learned Advocate.General has referred to Mariyam Hakim v. Secy. of State, A.I.R. (14) 1927 Bom. 649 : (105 I. C. 756) but that contains nothing inconsistent with what I have said above.
31. In addition to the cases mentioned above the appellants rely on P. Krishnaswami v. Syed Ahmed, 136 I.C. 777 : (34 M. L. W. 993) in which Curgenven J. expressed the view that Arunackelam Ghetty v. J. A. David, 50 Mad. 239 : (A. I. R. (14) 1927 Mad. 166) is not overruled by Bhagchand Dagadusa, v. Secy. of State, 54 I. A. 338 : (A. I. R. (14) 1927 P. C. 176). It is not quite clear how the point arose in that case, for his Lordship held on the authority of Kashi Bai v. Chunilal, A.i R. (17) 1930 Bom. 11 : (122 I. C. 857) that Section 80 had no application to the suit at all. Reference has been made also to Muradally Shamji v. B. N. Lang, 44 Bom. 555 : (A. I. R. (7) 1920 Bom. 419) in which Pratt J. followed Naginlal Ckunilal v. Official Assignee, Bombay, 37 Bom. 243 1 (17 I.C. 876). Bat he did so because he felt himself bound by the previous decision of a larger Bench, at the same time recarding his dissent as follows :
"It is said that the words 'act purporting to be done by such public officer in his official capacity' refer to past and not to future acts. If the matter were res integra I should have found no difficulty in deciding that they do refer to future acts. If the words were limited to past acts it would have been easy to express that limitation by such words as 'purporting to have been done' as for instance in Section 167, Bombay District Municipalities Act, 1901, I think it quite clear that the clause 'purporting to be done by such public officer in his official capacity' is merely an adjectival clause qualifying the substantive ward 'act'. The section refers to official acts without any reference to the time when the act was or is or is expected to be performed. The act may be past, present or future; but the only qualification imposed by the section is that it is one committed or likely to be committed in the execution or intended execution o! some public duty."
It is also urged that their Lordships of the Privy Council have themselves paraphrased Section 80 as if it read "purporting to have been done" (vide Bhagchand Dagadusa v. Secy, of State, 54 I. a. 338 at p. 353; (A.I.R. (14) 1927 P.c. 176) and Revati Mohan v. Jatindra Mokan, 61 I. A. 171 at p. 175 : (A. I. R. (21) 1934 P. C. 96)), but this has very little weight since the paraphrase related to the facts of the particular case and their Lordships had not in their mind the question which is now in issue.
32. On the other aide the learned Advcoate-General relies on Superintending Engineer, Bezwada v. C. Hamkrishnayya, 58 I. C. 885 : (A.i.r. (7) 1980 Mad. 723). I have noted above that this case was distinguished in Arunackelam Chetty v. J. A. David, 50 Mid. 239 ; (A. i. R. (14) 1927 Mad. 166). It is not necessary to examine here whether the distinction was correctly made, as the whole question was examined at great length and answered against the restricted inter-pretation of Section 80 by a Fall Bench of the Lahore High Court in Singhara Singh v. O'Callaghan, I.L.R. (1947) 28 Lah. 22 1 (A. I. R. (33) 1946 Lah. 247 S. B.). We have thus a direct conflict between Arunachelam Chetty v. J. A. David, 50 Mad. 239 : (A. i. R. (14) 1927 Mad. 166) and Singhara Singh v. O'Gallaghait, I. L. R. (1947) 28 Lah. 22 : (A.I.B. (33) 1946 Lah. 247 S. B.). It will be necessary in the suit on a consideration of the terms of Section 80 to decide which view is correct. In the present proceeding it will suffice to say that on prima facie grounds I am not so satisfied with the correctness of the view urged on behalf of the appellants that I feel justified in interfering with the decision of the learned Subordinate Judge, and in issuing interlocutory injunctions preventing the proposed action of Mr. Ayyub.
33. On behalf of the appellants in M. A. 8 it has been urged that the refusal of an interlocutory injunction will make the suit infrucbuous. This is taking rather an extreme view. The suit can no longer proceed as a suit for an injunction, of course, but there is nothing to prevent the plaintiffs from amending the plaint and asking for recovery of direct possession.
34. In the view I have taken on the points discussed above, it is not necessary to deal at length with another ground urged by the learned Advocate-General for the refusal of a temporary injunction, namely that the plaintiffs are not entitled to ask for a temporary injunction unless there are good prima facie grounds for thinking that the State Management Act is unconstitutional. The Court, he urges, must start with the presumption that the impugned statute is intra vires of the Lsgislature. (Rottschaefer, at p. 16). He has taken us through the provisions of the Act. According to him the Act is within the scope of Item 21, Provincial Legislative List in Schedule VII, Government of India Act, 1935, and involves adjustments of property rights which are as much within the powers of the legislature ag was held to be the case in Megh Raj v. Allah Rakhia, A.I.R. (34) 1947 P.C. 72 : (74 I.A. 12), Jagannath Baksh Singh v. United, Provinces, A.T.R. (33) 1946 P. C. 127 : (I.L.R. (1946) Kar. P. C. 129), United Provinces v. Mt. Atiqct Begum, 1940 F. C. R. 110 : (A. I. R. (28) 1941 F. C. 16) and Hulas Narain Singh v. Deen Mohammad, 1943 F.C.R. 33 : (A. I. R. (30) 1913 F. C. 9). On the other side it is pointed out that the Act involves very farreaching interference with all the proprietors' rights to property, including particularly the right of possession, of which Rich J. of the High Court of Australia in the Minister of State for the Army v. Dalziel, (1943.44) 68 C. L. R. 261 said :
"Possession vaut titre in more senses than one. Not only is a right to possession a right of property, but where the object of proprietary rights is a tangible thing it is the most characteristio and essential of those rights. 'So feeble and precarious was property without possession, or rather without possessory remedies, in the eyes of medieval lawyers, that possession largely usurped not only the substance but the name of property; and when distinction became necessary in modem times, the clumsy teem 'special property' was employed to denote the rights of a possessor not being owner' (Pollock & Wright, Possession in the Common Law, (1888), p. 5), 'Possession confers more than a personal right to be protected against wrongdoers : it confers a qualified right to possess, a right in the nature of property which is valid against everyone who cannot show a prior and batter right.' 'Possession is a root of title' (ibid, p. 22). 'The rule that possession is a root of title is not only an actual but a necessary part of our system' (ibid, p. 93). 'The standing proof that English law regards, and has always regarded, possession as a substantive root of title, is the standing usage of English lawyeta and landowners' (ibid, p. 94). A vendor of land cannot require a purchaser to accept his title unless he can give vacant possession at the time for completion (Cook v. Taylar, (1942) Ch. 349 : (III L. J. Ch. 214)); and a lessee incurs no liability under his covenant to pay rent if the lessor cannot give him vacant possession: Neale v. Mackenzie, (1836) 1 M. & W. 747 : 150 E. R. 635 ; Hughes v. Mockbell, (1909) 9 S. R. (N.S.W.) 343; see also, as to the interest and title of a person in possession of land, Perry v. Clissold, (1907) A. C. 73 at p. 79 : (95 L. T. 890).
When citing this decision learned counsel very properly drew our attention to Tan Bug Taim v. Collector of Bombay, A. I. R. (33) 1946 Bom. 216 at pp. 236-239 : (I. L. R. (1946) Bom. 517), where Bhagwati J., took a different view. Our attention was also drawn to Ex parte Edward T. young, 209 U. S. 123 : 52 Law. Ed. 714 as authority that an ad interim injunction may be given pending an investigation into the constitutionality of the impugned statute.
35. To gum up, for the reasons indicated above I am not satisfied that a case has been made out for interfering with the orders passed by the learned Subordinate Judge. As the points discussed will form issues in the trial of the suits I have avoided, as far ag possible, expresing an opinion as to the final answer to be given. Such opinions as I may have expressed are based on prima facie considerations.
36. In the result, I would dismiss the appeals with costs.
37. Since this judgment was dictated the State Management Act has been certified under Clause (6) of Article 31, Constitution of India. In view of the order proposed by me it is not necessary to consider what effect the certification will have upon pending litigation relating to the Act.
Jamuar, J.
38. The grant of an injunction is in the discretion of the Court. But the discedtion is not to be exercised arbitrarily; it must be sound and reasonable, guided by judicial principles.
39. The important points raised in these appeals are, amongst others, whether the State of Bihar is a necessary party to the suite--it has not been made a party on the ground that it is not a necessary party--for, if it be so, the suits are not maintainable and whether Mr. Ayyub, the sole dafendant, can be sued in his personal and individual capacity making the service of notice under Section 80, Civil P. C., on him unnecessary, for admittedly no such notice has been served upon him at all.
40. Although the points raised are serious and will have to be finally determined at the proper time, the appellants have not succeeded in showing for the purposes of these appeals that the Court below could not have reasonably taken the view which it has taken in refusing to grant the injunction. In this view of the position, I do not think that at this stage of the suits, it would be right to decide these points which will form issues in the suits.
41. I agree in the circumstances that the appeals should be dismissed.