PROVINCE OF BIHAR Vs. KAMAKSHYA NARAIN SINGH

JUDGEMENT

(1.) This is an appeal by the defendant, the Province of Bihar against an order of temporary injunction passed by the Subordinate Judge, Hazaribagh, in Title Suit No. 39 of 1949, which was then pending in his Court, restraining the defendant from taking over management of the estate of the plaintiff until the disposal of the suit.

(2.) The plaintiff-respondent is the sole proprietor of a considerable property in the district of Hazaribagh known as the Ramgarh Ettate. He has brought this suit to obtain a declaration that certain statutes passed by the Provincial legislature for the abolition of zamindaris and, pending this consummation, directed at taking over the management of the property of the zamindars is ultra vires. In particular, three pieces of legislation are referred to. Firstly, there is the Bihar Private Forests Act, 1948 (Bihar Act IX [9] of 1948) under which, it is stated, the Government has taken possession of the private forests of the plaintiff. Secondly, there is the Abolition of Zamindaris Act, 1948 (Bihar Act XVIII [18] of 1948) which has not yet been enforced. Thirdly, there is the Bihar State Management of Estates and Tenures Act, 1949 (Bihar Act XXI [21] of 1949) which came into force on 15th November 1949, and under which it is now proposed that Government will take over the management of the Ramgarh Estate, Among other reliefs, the plaintiff seeks for the restoration of his private forests and for a permanent injunction restraining the defendant from taking over the management of his estate. The present appeal is directed against an order of the Subordinate Judge granting a temporary injunction in respect of the relief last mentioned.

(3.) A mere glance at the Bihar State Management of Estates and Tenures Act indicates that the proposed taking over the management of the Ramgarh Estate is a very serious inroad on the plaintiff's right of private property. The property will come under the charge of the Manager under the Act, who will be entitled to take into his possession such buildings, papers and other properties appertaining to the estate as are essential in his opinion for proper management. The plaintiff will lose his power of management including even his right to receive arrears of rents and profits payable to him on the date of the commencement of management (vide Section 4). Leases of mines and minerals given by the plaintiff will come under the power of review of the Manager, and in certain circumstances it will be open to the Manager to terminate a lease subject to the payment of compensation which may be determined by agreement between the Manager and the holder of the lease (Sections 9 and 12). The Manager will be empowered to determine the secured and unsecured liabilities of the estate and to make arrangements for the satisfaction thereof (Chap. V and VI). The Manager will also represent the proprietor in pending litigation and, apparently, with the previous sanction of the Provincial Government, will be empowered to admit claims against the estate (Section 32). The power of the proprietor to sue for compensation will be very restricted (Section 31) and what he will receive out of the income of the estate will depend on what allowance is prescribed by rules under the Act, and how much of the surplus income the Manager, subject only to the control of the Provincial Government, may consider it necessary to retain (Section 26). In view of these circumstances there can be no doubt that there is danger of irreparable injury, and that the balance of convenience is entirely on the side of the plain-tiff. These points, therefore, have not been urged by the learned Advocate-General who has confined himself to one point, namely, that the suit itself is bad for want of compliance with Section 80, Civil P. C. Section 80, he urges, is an imperative section Bhagchand Dagadusa v. Secy. of State, 54 I. A. 338 : (A. I. R. (14) 1927 P. C. 176); Government of the Province of Bombay v. Pestonji Ardeshir Wadia, 53 C. W. N. 489 : (A. I. R. (36) 1949 P. C. 143) and Secy. of State v. Sagarmal, 20 Pat. 39i : (A.I.R. (28) 1941 Pat. 517) and, herefore, the defect cannot be mended, and the order of injunction passed by the Subordinate Judge cannot be supported. The point raised by the learned Advocate-General is one that will properly form an issue for decision in the trial of the suit. Since the suit itself, subsequently to the admission of this appeal, has been transferred for trial by this Court in exercise of its extraordinary civil jurisdiction, we suggested that this appeal should be considered along with that issue by the Bench trying the suit. The learned Advocate General, however, being anxious for an early decision, we have heard the parties. But our powers in a proceeding of this kind are limited. We are not concerned to decide what is the correct answer to be given to the question in the hearing of the suit, but merely whether there is a fair point for trial Walker v. Jones, (1865) 16 E. R. 151: (3 Moore N. S. 397); Israil v. Shamser Rahman, 41 Cal. 436: (A.I.R. (1) 1914 Cal. 362); Chandidat Jha v. Padmanand Singh Bahadur, 22 Cal. 459 and Brajendra v. Kashibai, 24 pat. 656 : (A. I. R. (33) 1946 pat. 177.)