Kula Chandra Dutt vs Emperor

Sinha, J.—These two applications arise out of the same matter, and have, therefore, been heard together, and will be disposed of by this judgment. In Cri. Misc. No. 323 the prayer is that the Cri. Misc. case No. 148 of 1948, pending in the Court of the Sub-Divisional Officer of Deoghar, be transferred to any other competent Magistrate for an expeditious hearing. In Cri. Misc. No. 378 the prayer is that the notice under Rule 75A(1), Defence of India Rules, and all the orders subsequently passed by the Sub-Divisional Magistrate of Deoghar in pursuance thereof be set aside, and possession of the Electric Supply Company as a going concern be restored to the petitioner.

The facts and circumstances leading up to these applications, as alleged by the petitioner, are as follows: The petitioner and his deceased brother, Badal Chand Dutt, were carrying on an ancestral joint family business under the name and style of "Dutt & Bros." In February 1935, the said partners obtained a licence, described as "Deoghar Electric Licence 1935," for the supply of electric power to Deoghar. A limited liability company under the Companies Act was floated for financing the said licensees, and was styled as "Santhal Parganas Electric Supply Corporation Ltd." In January 1936, two agreements were entered into between the licensees and the company aforesaid whereby the licensees were to transfer the licence to the company, and the company was to grant the managing agency to the former. As these agreements were not given effect to, the licensees continued to work the licence aforesaid. In February 1943, Badal Chand Dutt aforesaid, one of the two partners, died, leaving him surviving his widow and three sons, who succeeded to the interest of the deceased member of the family in the joint family business. It was further alleged by the petitioner that the notification dated 23rd July 1943, by the Government of Bihar, showing that the partnership stood dissolved by virtue of the death of the said Badal Chand Dutt, and that, consequently, the said licence stood annulled, was entirely erroneous in law, and, therefore, ineffectual; but, all the same, the Provincial Government accorded sanction to the petitioner to engage in the business of supplying energy to Deoghar for one year with retrospective effect from 23rd February 1943. The petitioner alleges that he sent a letter of protest to the Government of Bihar against the said notification of 23rd July 1943, annulling the licence. He alleged further that he continued working the undertaking, including the power house, and supplying electrical energy to Deoghar as before.

In September 1943, one Pulin Chandra Daw instituted a suit, being Suit No. 1439 of 1943, on the original side of the Calcutta High Court, claiming damages against the petitioner, the plaintiff in that suit being described as "Santhal Parganas Electric-Supply Corporation Ltd." It is said that in that plaint the plaintiff admitted the petitioner''s possession of the power house, etc. The very next day after the institution of the suit, that is, on 24th September 1943, the plaintiff obtained an ex parte order granting an interim injunction. It is further alleged that the said Pulin Chandra Daw, without waiting for the final orders of the Calcutta High Court in the injunction matter, came to the power house at Deoghar on 18th October 1943, and made a serious attempt to take forcible possession of the business. The petitioner''s engineer, Mr. D.N. Chatterjee, filed an application before the-learned Sub-Divisional Magistrate of Deoghar, informing him of the said attempt to take forcible possession of the power house. The petitioner also; on his arrival from Calcutta, informed the Sub-Divisional Magistrate on 21st October 1943, about the activities-of the said Pulin Chandra Daw. On 22nd October 1943, in the evening, the learned Sub-Divisional Officer is said to have gone to the power house and passed an order requisitioning the undertaking including the power house under Rule 75A(1), Defence of India Rules. The order is set out as Ex. C to the petition, and runs as follows:

Whereas a dispute has arisen over the ownership of the Electric Supply Company and consequently its power house and office etc, between K.C. Dutta the Grantee of the Deoghar Eleotrio Supply Undertaking on one side and Mr. P.C. Daw''s Agency Managing agent of Santhal Parganas. Electric Supply Corp6ration Ltd. on the other side and, I am satisfied after due enquiry that it may impair efficiency or impede the working of, or cause damage to, the power house and its machinery at, Williams Town and its store office and. other appliances at Bone Villa, Carstairs town causing thereby the non-supply of electric energy to the consumers in particular and public in general, now there, in exercise of the power conferred) upon me by Rule 75A(1), Defence of India Rules, I hereby decide to requisition the said Power House together with the store, appliances and offices etc.

I hereby further order that the said Power House be run with the existing working staff for a regular supply of electric energy to the public in general and consumers in particular the contravention of which is punishable under Rule 78A(1)(3) of the said Rules.

I further direct that if any person contravenes, any of the above order or does any act with intent to impair the efficiency or impede the working of or causes damage to the power house, its machinery,., store and other appliances affecting the supply of the electric energy which is an essential commodity to the life of the community will be liable for prosecution under Rule 35(1)(a) and (d) read with Sub-rule (4) of the said Rule.

Given under my hand and the seal of this Court today 22nd October 1943.

(Seal)

(Sd.) P. Section Sing. 22nd October 1943. Sub-Divisional Magistrate, Deoghar.

To

22nd October 1943.

Mr. K.C. Dutta.

It is this requisition order and the subsequent orders, hereinafter to be noticed, which are challenged as illegal and null and void in Cri. Misc. case No. 378 of 1944. It may be mentioned here by the way that before the said order was passed by the learned Sub-Divisional Magistrate, two Hours earlier the same day, the said P.C. Daw had appeared before him and made a complaint about assault on his men.

On 22nd November 1943, the interim injunction matter came up for hearing before the Calcutta High Court. The interim order of injunction was made absolute, subject to certain variations, exceptions being made for the working of the business of the electric supply and also providing that the order was without prejudice to the rights of the parties. It is claimed by the petitioner that, as a result of the orders of the Calcutta High Court in the injunction matter arising out of the suit aforesaid, his possession continued as before. The learned Sub-Divisional Magistrate instituted criminal proceedings against the petitioner and his men for certain offences said to have been committed against the men belonging to P.C. Daw''s party. He also initiated proceedings u/s 107, Criminal P.C., which were dropped on 20th June 1944. In those criminal proceedings, enquiries were made by the Inspector of Police and the Deputy Superintendent of Police, and it is claimed by the petitioner that their reports were in favour of the petitioner, to the effect that he was in actual possession of the Deoghar Electric Supply Undertaking. It may also be mentioned that the criminal prosecution launched as a result of the complaint filed by Mr. P.C. Daw against the petitioner and his men ended in the acquittal of the accused, the learned trial Magistrate at Deoghar coming to the conclusion that the complainant was not in possession of the Deoghar Electric Power House and its office, and that, therefore, the accused persons did not commit any rioting, as alleged by the complainant. The judgment of acquittal is dated 25th July 1944.

In the meantime, the petitioner made an application to the Sub-Divisional Officer of Deoghar on 27th December 1943, challenging the validity of the requisition under the Defence of India Rules, and praying for restoration of possession and certain other reliefs. This application was numbered as Cri. Misc. case No. 148 of 1943. From the order-sheet, attached to the supplementary affidavit as Ex. 12 at pp. 29 and 30, it would appear that the matter has been adjourned to ten different dates between 15th January 1944 and 22nd June 1944, but had not been disposed of till then. The petitioner alleges that, failing in all his attempts to obtain any orders from the learned Sub-Divisional Officer of Deoghar, he moved the District. Magistrate of the Santhal Parganas for the transfer of the Cri. Misc. case No. 148 of 1943 to some other Court. On 26th July 1944, this-application for transfer was rejected by the District Magistrate, chiefly on the ground that "the proceedings before the Sub-Divisional Officer do not come under the Criminal Procedure Code, though it has been styled as a criminal miscellaneous case." Against this order of the learned District Magistrate of the Santhal Parganas, the petitioner moved this Court, and obtained a rule, which has been,numbered as Cri. Misc. Case No. 323 of 1944, on 25th August 1944.

As the petitioner felt aggrieved by the actions taken by the learned Sub-Divisional Officer of Deoghar in requisitioning the Electric Supply Undertaking, and, in not coming to any conclusions as regards his applications aforesaid in the said matter, he served a notice on the Provincial Government of Bihar on 3rd January 1944. On 29th February 1944, the Provincial Government of Bihar issued two notifications, namely, (1) according sanction to the petitioner for one year from 22nd February 1944, to engage in the business of supplying energy to Deoghar in accordance with the previous licence of 1935, and (2) according sanctions to the Santhal Parganas Electric Supply Corporation Ltd., for two years for the same purpose in the same area, but adding in the-second notification that "the operation of this sanction by the grantees shall be subject to any orders passed or directions given by a competent Court."

On 27th March 1944, the petitioner as also his nephews instituted a suit against the Province of Bihar for certain declarations as also for an injunction restraining defendant l, namely, the Province of Bihar, audits officers, servants and agents from interfering with the enjoyment of the rights-granted by the Deoghar Electric Licence of 1935. This suit was filed in the Court of the-Subordinate Judge at Deoghar, and was numbered as Title Suit No. 2 of 1944. The petitioner alleges that the filing of this suit against the Provincial Government had just the opposite effect of what was intended by the plaintiffs. On 30th May 1944, during the petitioner''s temporary absence, the learned Sub-Divisional Magistrate of Deoghar himself went to the place, and gave possession of the power house, etc., to the said Mr. P.C. Daw, without giving the petitioner any opportunity of showing cause against this proposed action by the learned Sub-Divisional Magistrate. It is against these acts of the Sub-Divisional Magistrate of Deoghar that the petitioner moved this Court, and obtained the rule which has been numbered as Crim. Misc. No. 378 of 1944. These applications have been made to this Court on the assumption that the several orders passed by the Sub-Divisional Magistrate of Deoghar and his actions taken in pursuance thereof were orders passed and actions taken by a "Court."

Hence, it is manifest that, unless it can be established that the aforesaid orders passed by the learned Sub-Divisional Magistrate, and in the one case by the District Magistrate, were orders passed in a judicial proceeding, this Court cannot be asked to interfere. It is contended on behalf of the petitioner that u/s 561A, Criminal P.C., this Court has inherent power "to prevent abuse of the process of any Court or otherwise to secure the ends of justice." This contention again pre-sup-poses the same thing, that is to say, that the Sub-Divisional Magistrate, while acting under the Defence of India Rules, was amenable to the revisional jurisdiction of this Court or that, at any rate, the Court could interfere under its power of superintendence, as suggested by the learned Counsel for the petitioner. In this connection the following order of the learned Sub-Divisional Magistrate of Deoghar, passed on 27th December 1943, is relied upon on behalf of the petitioner:

I shall examine the record of the rioting case in consequence of which the Power House was requisitioned by me under Rule 75(1), Defence of India Rules. Put up on 15th January 1944 with the case.

Counsel for the petitioner, realising his difficulty that the orders passed by the learned Sub-Divisional Magistrate under the Defence of India Rules may not directly come under the purview of the criminal revisional jurisdiction of this Court, contended that the electric concern aforesaid had been requisitioned, and, subsequently, possession thereof transferred from the petitioner to Mr. P.C. Daw aforesaid, in consequence of the case of rioting started by Mr. Daw against the petitioner and his men. Therefore, it was contended that the learned Sub-Divisional Magistrate acted as a "Court" in passing the order of requisition of the electric concern and in dispossessing the petitioner and handing over possession to Mr. Daw. It was not contended that all these orders could have been legally passed by the Sub-Divisional Magistrate acting within the limits of his powers as laid down in the Defence of India Rules.

It was also contended that the delegation of powers was made in favour of the "Sub-Divisional Officer," and not the "Sub-Divisional Magistrate," and, therefore, the Sub-Divisional Magistrate had no jurisdiction to act as such under Rule 75A, Defence of India Rules. In my opinion, there is no substance in this contention. The notification in question appears in the Bihar Gazette, Extraordinary, dated 9th May 1942. It shows that the Governor of Bihar was pleased to direct that the powers under Rule 75A, Defence of India Rules, shall be exercised by the authorities specified in Col. 1 of the schedule annexed to the notification, which includes "Sub-Divisional Magistrate." In Col. 2 of the schedule, which is meant for showing the classes of property and the conditions subject to which the power has to be exercised, the following entry appears:

Any movable or immovable property within their respective jurisdictions subject, in the case of any Sub-Divisional Officer, to the control of the District Magistrate.

There cannot be the least doubt that the notification in question refers in Col. 1 to the "Sub-Divisional Magistrate," though in Col. 2 it refers to the "Sub-Divisional Officer." It was then contended that the Sub-Divisional Magistrate, acting as a "Court," took cognizance of the rioting case on the complaint of Mr. P.C. Daw which resulted in the prosecution, and ultimately of the acquittal, of the petitioner and his men. During the course of this prosecution the learned Magistrate, a few hours after taking cognizance of the case, proceeded to requisition the electrical concern. It is, therefore, argued that the learned Sub-Divisional Magistrate of Deoghar had decided to take action under the Defence of India Rules as a "Court," and not as an executive officer under the Crown. In this connection reliance was placed upon the cases in (Hafiz) Hafizuddin Vs. C. Laborde, and Bhairon Prasad Vs. Emperor, in support of the proposition that the High Court is competent under the provisions of Section 561A, Criminal P.C., to grant appropriate relief to an aggrieved litigant. But, as I have observed above, Section 561A comes into operation only when the impugned order is passed by a "Court." If the order moved against in the High Court is one passed by an executive officer of the Crown in his administrative capacity, in my opinion, Section 561A is not attracted.

In the present case it may be that the learned Sub-Divisional Magistrate, getting information that there was a dispute between two private individuals about the right to possession of a going concern in which the public was vitally interested, decided to take action under the Defence of India Rules. This action he took during the pendency of a criminal case; but that action he took not in the case itself. Hence, any orders passed by him transferring possession from party to another, rightly or wrongly, cannot be said to be an order passed in a judicial proceeding. All the cases cited above, relied upon by Counsel for the petitioner, were cases in which the police or the Magistrate himself had passed certain orders purporting to act under the Code of Criminal Procedure. Hence, their orders and their actions in pursuance of their orders were held liable to be revised by the High Court under its inherent jurisdiction as recognised by Section 561A of the Code.

It was then contended that, even assuming that the learned Sub-Divisional Magistrate acted as an executive officer of the Crown, his actions were ultra vires of the Defence of India Rules, and, therefore, his orders could be revised by this Court under its inherent jurisdiction. In support of this argument it was urged that the Deoghar Electric Supply Undertaking was a going concern, and it has been laid down by a Full Bench of the Lahore High Court in Lahore Electric Supply Co. Punjab Province AIR 1943 Lah. 41 that under Rule 75A, Defence of India Rules, movable and immovable property only can be requisitioned or acquired and that rule is not applicable at all to the requisition or acquisition of an undertaking or a going concern. There may be some force in the contention that the requisition order passed by the learned Sub-Divisional Magistrate of Deoghar, if it was in respect of a going concern, was ultra, vires. But, as a civil suit between the petitioner and the Provincial Government of Bihar is pending, it is neither necessary nor expedient to express any considered opinion on that aspect of the case.

But, assuming for the purposes of the present argument that the orders aforesaid are ultra vires the Sub-Divisional Magistrate, does it follow as a necessary corollary that this Court can interfere in its revisional jurisdiction and order the Provincial Government to restore the petitioner to possession of the concern? It was contended that where there is a wrong there is a remedy and that, if the executive authority exceeded its powers given under the law, the aggrieved party has his relief.

In this connection the decision of their Lordships of the Judicial Committee of the Privy Council in Eshugbayi Eleko v. Nigerian Government AIR 1931 P.C. 248 was referred to. The following observations of Lord Atkin at p. 670 of the report have been strongly relied upon in this connection:

Their Lordships are satisfied that the opinion which has prevailed that the Courts cannot investigate the whole of the necessary conditions is erroneous. The Governor acting under the Ordinance aots solely under executive powers, and in no sense as a Court. As the executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a Court of justice. And it is the tradition of British justice that Judges should not shrink from deciding such issues in the face of the executive.

There cannot be the least doubt that even the executive officers of the Crown cannot interfere with the life or liberty of His Majesty''s subjects except in strict accordance with the provisions of the law for the time being in force. If the petitioner has been wronged by any orders of the executive authorities which are in excess of the powers conferred upon them, he has his remedy at law; but that remedy has got to be sought in accordance with law, that is to say, through the ordinary Courts. In this connection it is relevant to point out that the petitioner has, as a matter of fact, sought his remedy by instituting the suit in the Court of the Subordinate Judge at Deoghar. If he had been vigilant in pursuing his remedy provided by law, he could have obtained such orders by way of injunction, as the law provides for, in that suit itself. As already indicated, he did make a prayer for injunction in the suit itself; but he does not appear to have moved the Court for an interim injunction restraining the executive authorities from interfering with his rights such as they were. Having failed to obtain such a remedy in the ordinary course of the law, can the petitioner come to the High Court, and ask it to exercise its inherent powers?

In my opinion, the answer is in the negative. In this dispute the petitioner, the Provincial Government and its officers as also Mr. P.C. Daw aforesaid are primarily concerned. Mr. P.C. Daw is not a party to these proceedings. Hence, in my opinion, even on the assumption that the orders of the learned Sub-Divisional Magistrate of Deoghar were wholly without jurisdiction from beginning to end, this Court cannot interfere for the simple reason that he was not functioning as a "Court" when he passed those orders.

It follows from what has been said above that both these applications are misconceived and should be dismissed.