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Orissa High Court
B. K. BEHERA, J.
State of Orissa - Appellant
Versus
Orissa Oil Industries Ltd. - Respondents
Misc. Appeal No.263 of 1982
Decided On : 31 May 1982
INJUNCTION - STAY OF OPERATION - SUIT FOR INJUNCTION - AD INTERIM INJUNCTION - STAY OF OPERATION OF AD INTERIM INJUNCTION - LEGAL AND FACTUAL GROUNDS - INTERPRETATION OF CONTRACTUAL CLAUSES - IRREPARABLE INJURY - BALANCE OF CONVENIENCE - APPOINTMENT OF RECEIVER - PRINCIPLES.
Fact of the Case:
The respondents instituted a suit for injunction against the appellants, restraining them from giving effect to certain Government resolutions and a letter of the Divisional Forest Officer, which barred the respondents from collecting sal seeds from certain forest areas. The respondents obtained an ad interim injunction from the trial court. The appellants filed an appeal against the ad interim injunction and also filed an application for stay of the operation of the injunction. The appellants contended that the ad interim injunction was granted without proper notice to them, that the suit was not maintainable as it was not instituted within two months from the date of the notice under Section 80 of the Civil Procedure Code (CPC), that the application for leave to sue under Section 80(2) of the CPC had not been allowed, and that the court had failed to record reasons for granting the injunction without giving notice to the appellants as required under Order 39, Rule 3 of the CPC. The respondents contended that the ad interim injunction was legally and duly passed by the trial court after hearing the appellants' counsel, who had conceded for the grant of the injunction, and that the balance of convenience was in their favor.
Finding of the Court:
The court held that the ad interim injunction was granted without proper notice to the appellants, that the suit was not maintainable as it was not instituted within two months from the date of the notice under Section 80 of the CPC, that the application for leave to sue under Section 80(2) of the CPC had not been allowed, and that the court had failed to record reasons for granting the injunction without giving notice to the appellants as required under Order 39, Rule 3 of the CPC. The court also held that the balance of convenience was not in favor of the respondents and that the appointment of a receiver was not justified.
Issues: 1. Whether the ad interim injunction was granted without proper notice to the appellants? 2. Whether the suit was maintainable as it was not instituted within two months from the date of the notice under Section 80 of the CPC? 3. Whether the application for leave to sue under Section 80(2) of the CPC had been allowed? 4. Whether the court had failed to record reasons for granting the injunction without giving notice to the appellants as required under Order 39, Rule 3 of the CPC? 5. Whether the balance of convenience was in favor of the respondents? 6. Whether the appointment of a receiver was justified?
Ratio Decidendi: 1. The court held that the ad interim injunction was granted without proper notice to the appellants because the Government Pleader, who appeared for the appellants, had not been served with a copy of the application for injunction under Order 39, Rule 3 of the CPC and the court had not recorded reasons for granting the injunction without giving notice to the appellants as required under the same rule. 2. The court held that the suit was not maintainable as it was not instituted within two months from the date of the notice under Section 80 of the CPC and the application for leave to sue under Section 80(2) of the CPC had not been allowed. 3. The court held that the balance of convenience was not in favor of the respondents because they had other areas with sufficient potentiality for collection of sal seeds and the Government of Orissa Undertaking had already taken up the operations in the areas in question. 4. The court held that the appointment of a receiver was not justified because the Government of Orissa Undertaking had already taken up the operations in the areas in question.
Final Decision: The court made absolute its order staying the operation of the ad interim injunction passed by the trial court and rejected the respondents' application for the appointment of a receiver.
Judgement
ORDER :- The question for consideration before me is as to whether this Court should stay the operation of the impugned order of ad interim injunction passed by the learned Subordinate Judge, Sambalpur, in Miscellaneous Case No.45 of 1982 arising out of Title Suit No.37 of 1982 instituted by the respondents against the appellants in his court injuncting the appellants from giving effect to the resolutions dated 23-4-1980, 15-5-1980 and 30-5-1980 of the State Government in the Department of Forest, Fisheries and Animal Husbandry and the letter dated 7-5-1982 of the appellant No.4 addressed to the respondent No.2 debarring the respondent No.2 from collecting sal seeds from out of the areas of the Similipahar Forest Development Corporation Limited and further informing that the collection and disposal of sal seeds by it from 1-10-1981 would be confined to the jurisdiction of the present Karanjia Division only, and from interfering in any manner with the exclusive right of the respondent No.2 to collect and appropriate sal seeds from the areas described in the schedule to the application and supply the same to the respondent No.1 for utilisation in its industry and from impeding in any manner the ingress or egress of the men and trucks/vehicles of the respondent No.2 into and out of the scheduled areas or transport thereof from/out of scheduled areas and from refusing to issue necessary permits for the said purpose. In the schedule of the order had been included the entire forests of Karanjia and Baripada Forest Division including the areas/forests alloted/attempted to be allotted to Similipahar Forest Development Corporation Limited.
2. The respondent No.2 had been granted lease by the State Government in respect of twelve forest divisions including the Baripada and Karanjia Divisions for the purpose of collection of sal seeds from which oil is extracted and used for manufacture of some commodities. The leases in question had been renewed from time to time in favour of that company. On 8-1-1979, the State Government passed a policy resolution in regard to exploitation of minor forest produce including the sal seeds. Subsequent to this policy decision of the State Government, the application of the respondent No.2 for renewal was considered and it was granted lease for a period of ten years on the conditions laid down in the policy decision as well as on the terms and conditions of the lease executed between the parties. This lease was to continue until the year 1989.
On 22-4-1980, the respondent No.2 was informed in a letter from the Divisional Forest Officer, Baripada, to the effect that the Similipahar Forest Development Authority had come into existence since February, 1980 and therefore, the respondent No.2 was to abide by clause 17(v) of the Agreement and no collection should be made in the Similipahar Reserved Forest (Annexure-17 to the plaint). Thereafter, as per Annexure-18 to the plaint, the Managing Director of the Similipahar Forest Development Corporation Limited, which is a Government of Orissa Undertaking, invited sealed tenders from interested parties for purchase of sal seeds for the year 1980 from the Project area. The respondent No.2 unsuccessfully challenged the legality of the aforesaid letter dated 22-4-1980 from the Divisional Forest Officer, Baripada, in the Calcutta High Court, before a learned single Judge and the writ application was dismissed on 19-5-1980. Against the order of the learned single Judge, the respondent No.2 moved a Division Bench of the Calcutta High Court in P.H.A.T. No.1445 of 1980 and the appeal was dismissed as per Annexure-A to the memorandum of appeal presented in this Court. The respondent No.2 then moved a petition in the Supreme Court for grant of Special Leave to Appeal in S.L.P. No.5515 of 1980 against the judgement of the Calcutta High Court, but it was withdrawn. The respondent No.1 then filed a writ application in this Court (O.J.C. No.954 of 1980).
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