1955 Supreme(All) 97

HIGH COURT OF ALLAHBAD
CHOWDHRY, UPADHYA, JJ.
Girja Prasad Sunder Lal
Versus
Divisional Forest Officer
Supreme Court Appeal No.149 of 1955
Decided On : 23-05-1955

Headnote:

O.45, R.13, C.P.C. - Stay of Execution - Jurisdiction - Powers of Court - Interim Injunction - Conditions - U.P. Zamindari Abolition and Land Reforms Act, 1951 (U.P. Act No. 1 of 1951), S.8.

Fact of the Case:

The petitioner firm obtained a theka for collection of tendu leaves for manufacture of biris from a forest in Mirzapur district. The rights, title and interest of the Raja vested in the State under S.6 of the U.P. Zamindari Abolition and Land Reforms Act, 1951, and as the theka had been effected after 8-8-1946, the Divisional Forest Officer concerned issued a notification under S.8 nullifying such thekas and calling upon the thekadars to enter into fresh contracts with him. Negotiations in this regard between the petitioner firm and the Forest Officer having failed, the light to collect leaves was auctioned and purchased by Behari Lal. The firm filed a writ petition under Art.226 of the Constitution against the Divisional Forest Officer and the State of Uttar Pradesh for a writ or direction to restrain them from interfering with the petitioners right. An interim order to that effect was issued the same day which was to remain in force till the end of June, 1954, on condition of the petitioner depositing Rs.2,500/- with the Divisional Forest Officer. On 27-7-1954 Behari Lal made an application to be impleaded as a respondent, which application was allowed the same day that the writ petition was dismissed, i.e., on 3-2-1955. The petitioner sought to raise another plea at the time of arguments, namely, that the area in question did not constitute an "estate" as defined in S.3(8), but he was not permitted to do so. The same pleas were unsuccessfully raised by the petitioner in a special appeal which, as adverted to above, was summarily dismissed on 11-4-1955.

Finding of the Court:

The court held that it had the jurisdiction to grant the relief prayed for by the petitioner firm under O.45, R.13(2)(d) of the Code of Civil Procedure, 1908, and that this was a fit case in which to grant such relief. The court further held that the stay order dated 6-5-1955 passed by the court should be maintained on the terms and conditions already imposed on the petitioner firm.

Issues: 1. Whether the court had the jurisdiction to grant the relief prayed for by the petitioner firm under O.45, R.13(2)(d) of the Code of Civil Procedure, 1908? 2. Whether this was a fit case in which to grant such relief?

Ratio Decidendi: 1. The court held that it had the jurisdiction to grant the relief prayed for by the petitioner firm under O.45, R.13(2)(d) of the Code of Civil Procedure, 1908, because: * The provisions of O.45, R.13, are applicable to cases where the appeal, during the pendency of which the court is asked to exercise powers under that rule, is an appeal from a decision under Art.226 of the Constitution. * The provisions of R.13 being thus applicable in the present case, the question is whether the said relief could be granted to the petitioner firm under any of its provisions. The relevant provision would of course be the one or the other of Sub-r.(2), and not that of Sub-r. (1), since the court is being required to direct otherwise, i.e. to put a restriction on the right of the successful parties, the respondents, to reap unconditionally the fruits of the final order in their favour. * Clauses (a) to (c) have obviously no application since no question of impounding disputed moveables or of conditional execution or stay of execution of decree arises. The residuary cl. (d), however, confers wide powers and would seem to give the necessary powers to grant the aforesaid relief to the petitioner firm. 2. The court held that this was a fit case in which to grant such relief because: * The petitioner firm had been in enjoyment of the right in question since before the auction sale dated 9-4-1954. * It is only by virtue of a subsequent notification under S.8, U.P. Zamindari Abolition and Land Reforms Act, 1951, that the petitioner is being sought to be deprived of his rights. * The validity of the notification is being seriously challenged by the petitioner. * The learned Junior Standing Counsel has drawn our attention to a telegram which is said to have been received from the Legal Remembrancer at Lucknow on 17-5-1955. This telegram requires that the Court be informed of the correct facts an intimated by the Divisional Forest Officer in an earlier telegram dated 7-5-1955. All that was stated in the latter telegram was that the Divisional Forest Officer was not willing as the right in question had already been sold for four years and any such contract will be against the terms of contract between him and Behari Lal. * It is, however, not contended by the Divisional Forest Officer or the State that possession had been given to Behari Lal. * It is also noteworthy that the stay order dated 6-5-1955 which has already been passed was passed with the consent of the State of U.P. through whom Behari Lal derives his title.

Final Decision: The application of Behari Lal dated 12-5-1955 was dismissed with costs and the order dated 6-5-1955 passed by the court was maintained.