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PATNA HIGH COURT
Lakshmikanta Jha and Reuben JJ.
Bukhtiarpur Bihar Light Railway Co.Ltd.
Versus
District Board
Supreme Court Appeal No. 57 of ;
Miscellaneous Judicial Case No. 216 of 1950 ;
Decided On : SEPTEMBER 29, 1950
CONSTITUTIONAL LAW - ARTICLE 132, 133 - LEAVE TO APPEAL TO SUPREME COURT - SUBSTANTIAL QUESTION OF LAW - INTERPRETATION OF CONSTITUTION - CONTEMPT OF COURT - MANDAMUS - FUNDAMENTAL RIGHT - DISCRETION OF HIGH COURT.
Fact of the Case:
The petitioner, a public limited liability company, owned an undertaking known as the Bukhtiarpur-Bihar Light Railway. The opposite party No. 1 was the District Board of Patna and the opposite party no. 2 was the Chairman of the District Board. The District Board had a right of purchasing the Light Railway, subject to certain conditions, in accordance with the provisions of Sec. 41 of the Bengal Tramways Act, 1883 (Act III [3] of 1883). The District Board gave six months notice in writing to the Company, according to the provision of Sec. 41 of the Act, declaring its intention to exercise its right of purchasing the Light Railway with effect from 25-6-1950. The petitioner moved the High Court and prayed for a writ of mandamus restraining opposite parties NOS. 1 and 2 from taking possession of the Light Railway "except in due course of law." A rule was issued by the High Court, giving rise to miscellaneous judicial case No. 120 of 1950, and an ad interim order of injunction was also made. The case came up for hearing before a Division Bench of the High Court, and on 23-6 1950, a consent order was passed. One of the terms of the agreement between the parties, runs thus; "2. The District Board will take possession of the undertaking, viz, the Bihar Bukhtiarpur Light Railway (including the Rajgir extension) only after the purchase, to which the District Board claims to be entitled, has been legally completed". After the consent order was recorded the ad interim order of injunction was vacated. The petitioner's case is that the opposite party disturbed its possession by a forcible entry at midnight of 24-6-1950, in violation of the consent order, and a petition was moved in the High Court on 28-6-1950, praying for a writ of mandamus against opposite parties Nos. 1 and 2 and others, directing them to forbear from interfering with the possession of the petitioner over the Light Railway and also for a rule committing the opposite parties Nos. 1 and 2 for contempt of Court. A rule was thereupon issued giving rise to miscellaneous judicial case No. 139 of 1950. On 19-7-1950, the petitioner filed a supplementary petition on the ground of complete dispossession and obtained a further rule calling upon the opposite parties NOS. 1 and 3 to show cause why a mandatory injunction should not issue against them directing them to restore possession of the Light Railway to the petitioner. These applications came up for hearing before a Division Bench of the High Court, presided over by Reuben and Das JJ., who by their order dated 8-9-1950, discharged the rules.
Finding of the Court:
The High Court found that the opposite party had not by its motion complained of committed any contempt of Court, nor had the petitioner made out a case for the issue of a writ of mandamus asked for.
Issues: 1. Whether the opposite party has committed contempt of Court; 2. Whether it is a case in which mandamus should issue directing the District Board and the Chairman of the District Board to restore possession to the petitioner it being admitted that dispossession is complete.
Ratio Decidendi: 1. The High Court held that the action of the opposite party in taking possession of the undertaking before the sale "has been legally completed" is a breach of an undertaking to the Court and, therefore, they are punishable by committal. Alternatively, it contends that the agreement together with the Court's order thereon amounts to an injunction to the District Board not to take possession till the title is complete and its injunction has been disobeyed. 2. The High Court further held that the proceeding for the purpose of leave to appeal to the Supreme Court is a civil proceeding, because the remedy to the petitioner can be given only by way of a civil execution. 3. The High Court also held that a writ of mandamus cannot issue to a private individual or (sic) an invasion by him of a fundamental right. According to the High Court if a person holding a public office, or a corporation, interferes with the proprietary right of a citizen, it is the duty of the High Court under Article 226 to give adequate relief by issuing a writ of mandamus to the wrong-doer. 4. The High Court further held that the writs mentioned in Article 226, including mandamus, have not been defined in the Constitution of India; but it must be presumed that, when the constituent assembly has delibrately used a term which has a known legal significance in law, it has attached to that term that known legal significance 5. The High Court also held that the power of the Kings Bench to grant writs, including writs of mandamus, is discretionary.
Final Decision: The High Court granted a certificate to the applicant for leave to appeal to the Supreme Court under Articles 132, Clause (1), and 133 (i) (c) of the Constitution.
Lakshmikanta Jha, J.
1. There are two applications before us; one of them is under Article 133, and the other under Article 132 of the Constitution. Both of them arise out of the same order, and we are asked to certify that the case involves a substantial question of law as to the interpretation of the Constitution, or, at any rate, it is a fit case for appeal to the Supreme Court within the meaning of Article 133, Clause (i) (c).
2. The petitioner is a public limited liability company and owns an undertaking known as the Bukhtiarpur-Bihar Light Railway, hereinafter to be referred to as the "Light Railway". The opposite party No. 1 is the District Board of Patna and the opposite party no. 2 is the Chairman of the District Board.
3. The facts giving rise to the present applications are shortly these; The Light Railway was established about the year 1901 under the provisions of the Bengal Tramways Act, 1883 (Act III [3] of 1883) and under an agreement dated 21-8-1901 between the promoters of the Company and the District Board of Patna the latter had a right of purchasing the Light Railway, subject to certain conditions, in accordance with the provisions of Sec. 41 of the Act. It is alleged that the District Board on 16-12-1949, gave six months notice in writing to the Company, according to the provision of Sec. 41 of the Act, declaring its intention to exercise its right of purchasing the Light Railway with effect from 25-6-1950. On 17-5-1950, the petitioner moved this Court and prayed for a writ of mandamus restraining opposite parties NOS. 1 and 2 from taking possession of the Light Railway "except in due course of law." A rule was issued by this Court, giving rise to miscellaneous judicial case No. 120 of 1950, and an ad interim order of injunction was also made. This case came up for hearing before a Division Bench of this Court, and on 23-6 1950, a consent order was passed. One of the terms of the agreement between the parties, runs thus;
"2. The District Board will take possession of the undertaking, viz, the Bihar Bukhtiarpur Light Railway (including the Rajgir extension) only after the purchase, to which the District Board claims to be entitled, has been legally completed". After the consent order was recorded the ad interim order of injunction was vacated."
4. The petitioners case is that the opposite party disturbed its possession by a forcible entry at midnight of 24-6-1950, in violation of the consent order, and a petition was moved in this Court on 28-6-1950, praying for a writ of mandamus against opposite parties Nos. 1 and 2 and others, directing them to forbear from interfering with the possession of the petitioner over the Light Railway and also for a rule committing the opposite parties Nos. 1 and 2 for contempt of Court. A rule was thereupon issued giving rise to miscellaneous judicial case No. 139 of 1950.
5. On 19-7-1950, the petitioner filed a supplementary petition on the ground of complete dispossession and obtained a further rule calling upon the opposite parties NOS. 1 and 3 to show cause why a mandatory injunction should not issue against them directing them to restore possession of the Light Railway to the petitioner. These applications came up for hearing before a Division Bench of this Court, presided over by Reuben and Das JJ., who by their order dated 8-9-1950, discharged the rules.
6. The case of the petitioner is that the conduct of the Chairman, District Board, was not straightforward and he entered into the agreement merely as a dodge by which ho induced the Court to refrain from issuing an injunction against the District Board.
7. At the hearing it was admitted that the District Board is in possession of the Light Railway. According to the allegation of the petitioner, dispossession took place since the passing of this Courts order dated 28-6-1950, whereas according to the opposite party, the taking of possession was peacefully effected at midnight of 24th/25th June. My learned brothe
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