1. This is a petition by the Hubli Electricity Co., Ltd., against the Province of Bombay entitled 'In the matter of the High Court Suit No. 610 of 1944 (The Hubli Electricity Co., Ltd. v. The Province of Bombay), and in the matter of the order dated May 3, 1944, issued by the Secretary to Government by order of the Governor of Bombay in exercise of the powers conferred by Sub-rule (3) of Rule 81 of the Defence of India Rules, 1939,-And In the matter of Section 151 of the Civil Procedure Code.'
2. The petition is distinctly unusual, and the only question before me at the moment is whether this is a proper form of proceeding. The learned Advocate General on behalf of the Province of Bombay takes a preliminary objection that this is not the proper form of proceedings, and that is all I have to decide at the moment. I therefore assume, without deciding, that the statements contained in the petition are and that each of them is correct. But I desire to make it abundantly clear that I am not deciding anything of the sort. I am merely assuming that for the purpose of dealing with the preliminary objection before me.
3. According to the petition the petitioners held an electricity licence under the Electricity Act, 1910, and on January 28, 1044, an Officer of the Government wrote to them purporting to revoke it with effect from May 1, 1944, under Section 4(2)(b) of the said Act : on March 1 a notice appeared in the press inviting applications from intending purchasers of the undertaking, which notice was repeated in at least one another paper on March 2. The point about this is that the period of three months given by Section 5 of the Indian Electricity Act within which the local authority has the right of purchasing the undertaking of a licensee whose license has been revoked under the previous section had not yet expired. The presumption however being (even against the Province of Bombay) that things are done properly until it is proved that they are done improperly, I think I am justified in assuming that some day in February; the local authority must have intimated that they did not propose to purchase the undertaking; if so, the respondents would be acting perfectly within their rights if they advertised for other purchasers. The petition however alleges that on March 13, 1944, the petitioners gave to the Secretary of the Government notice as required by Section 80 of the Civil Procedure Code contesting the validity of the revocation of the licence and intimating that the present petitioners intended to file a suit. I may say that that suit has been duly filed, and that is the suit mentioned in the title of the present petition and that a motion is pending in that suit for an injunction-very much to the same effect as the order sought on the present petition. On March 30, 1944, an order was issued to the petitioners under Rule 81(2) of the Defence of India Rules requiring them to comply with the directions of a certain officer of Government, followed by an order of April 4 whereby another gentleman was appointed the officer in connection with the order of March 30, 1944.
4. The next step apparently was that on April 18, 1944, the Secretary to Government informed the petitioners that Government desired to find out the fair market value of the petitioners' undertaking and requested them to give full facilities for having that value assessed by an Electrical Engineer whom Government had appointed for the purpose. Eleven days later another order was issued dated April 29 telling the petitioners that the Government had elected to purchase their undertaking and demanding possession of the undertaking on May 1. Rightly or wrongly, the petitioners took exception to this on the ground amongst others that being a limited liability company they could not sell or part with possession of their undertaking except with the consent of the shareholders in general meeting, and they had not been told the price at which it was proposed to take their undertaking. According to the petition on May 3, 1944, the Government purported to make an order appointing the gentleman whom they had already required the petitioners to obey the 'authorised controller' of their undertaking and requiring him to take over control. The petitioners then proceeded to set out a number of grievances as to how the order under Rule 81(3) of the Defence of India Rules was made; that it was made not for the purpose of efficiently prosecuting the War, but for the collateral purpose of getting over any irregularity there may have been in the respondent's attempt to get the petitioners' undertaking, and it is alternatively described as a 'mere cloak' on a 'mere stop gap.' I suppose a cloak could be used to stop a gap, but the two implications seem to differ from one another.
5. Then there are a number of grievances each one of which would be an admirable ground for filing a suit. Acts of trespass by the servants of Government are alleged, the seizure of a motor car belonging to the company and several other matters which on the face of them disclose a good cause of action in the company such as the alleged fact that some servants of the Government have forcibly seized the keys of all the cup-boards of the office and stores building. The only one thing which does not disclose a cause of action in the company is the allegation that they also forced the wife of the managing agent, during his absence, to vacate the company's staff quarters which they had occupied. No doubt this lady possessed all the virtues that one can be possessed of and she may be an excellent wife to the managing agent, but that does not make her the wife of the company, and even if she were the wife of the company, her being dispossessed of her quarters gives the company no right of action. However, as I say, the petition sets out a large number of matters all of which are excellent grounds for filing a suit.
6. The question naturally occurs to one why if the company has so many grievances does it not file a suit, and there is no attempt to conceal the reason why it does not do so. The reason is this. The suit which it has already filed was commenced on May 22, some nineteen days-be it noticed-after the notice under Rule 81(3) which is now complained of. In the suit which the company has filed the order is not mentioned because, naturally, it was not mentioned in -their notice dated March 13 : if they were to commence a fresh suit they would have to give two months notice of it, and Mr. Somjee argues that during those two months fresh grievances might be committed, fresh orders made purporting to be made under the Defence of India Rules and so they might be kept indefinitely at bay : for each of them they would have to start a fresh suit and for each two months' notice will have to be given. Thus the matter would be going on ad infinitum or at all events till the end of the War, or the end of the world, whichever of the two things shall first happen.
7. Assuming, as I say, that these statements in the petition are all perfectly true-far from deciding that they are it is a serious matter for the company. Accordingly one notices that the petition is finally headed 'In the matter of Section 151 of the Civil Procedure Code', which has been described (I think more than once) as 'the refuge of the procedurally destitute,' and the petition asks not for what presumably would be asked for in a suit, viz. damages for trespass, and sundry injunctions, and so on, but for a declaration that the order of May 3 is mala fide, ultra vires and void in law and for an order for restitution of the undertaking in suit, an order setting the order aside, and a direction for the petitioners' costs and for further and other reliefs.
8. It is quite apparent, and there is no concealment on Mr. Somjee's part about it, that what is sought to be done is to drive ' round,' or alternately I might say ' a coach and four through' Section 80 of the Civil Procedure Code. It is perfectly true that Section 80 which requires notice of suits about to be commenced against Government applies only to suits, and it is forcibly argued by Mr. Somjee that where it is necessary for the purpose of justice that proceedings should be taken against the people referred to in Section 80 without notice, the proper course is to present a petition under Section 151 of which no notice is expressly required. But in order to support this argument Mr. Somjee had to go to the length of saying that there is an 'inherent jurisdiction ' in the Court to accept petitions-not suits but petitions-from all manner of people who imagine that they have a grievance of any sort whatsoever against anybody, but that the Court has al discretion not to accept petitions in cases where a suit is an equally efficacious remedy. If this be so, for my part I cannot see why anybody ever bothers to file a suit in this Court. Suits take a long time to reach hearing, petitions are disposed of comparatively expeditiously : it would be open to any litigant whether he seeks to recover money lent, damages for personal injuries, damages for libel, or whatever his cause of action, to present a petition to the Court, e.g. stating that he has been knocked over by a bus or a taxi, under a heading mentioning Section 151 and submit that the Court should admit his petition and so save him time and money which he would have to expend if he commenced a regular suit. If that be so, the Court would be flooded with petitions, but in practice there are comparatively few of them.
9. Section 151 is short and has been the subject of much litigation. It provides-
Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
It is not suggested that the order which I am asked to make is one designed to prevent abuse of the process of the Court but that it is one designed to prevent an alleged abuse of its powers by Government. It therefore must come within the first or neither part of the section. It must be asking for an order which is ' necessary for the ends of justice.' Now I have to ask myself what does ' justice ' mean in this connection? Does it mean the ordinary reasonable man's idea of fair play, or in Lord Bowen's words what 'the man on the Clapham omnibus' would consider to be just? Does it mean the individual Judge's idea of what is just, or does it mean the Platonic ideal of justice laid in heaven? Or lastly does it mean the purposes of the Civil Procedure Code? I think both on principle and on authority that the last and most prosaic meaning is the correct one, and authorities are not wanting for that proposition-either in this country or in England. If, e.g. one refers to j. C. Galstaun v. Pramathanatk Ray I.L.R (1929) Cal. 154 one finds Chief Justice Rankin saying that if the relief can be properly obtained in a separate suit, it does not appear that there is any justification for invoking Section 151 at all. The learned Advocate General invites me to say that the same thing is true where relief can properly be obtained in a separate, albeit a deferred, suit, and I must accept the invitation.
10. An English case which seems to me to be not entirely irrelevant is the decision in Rex v. Dyson (1908) 2 K.B. 454 which was given shortly after the present Criminal Appeal Act came into force in that country. Section 4(1) of that Act contained a proviso that:
the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred.
It appears that in that case the prisoner was indicted for the manslaughter of his infant child, that according to the evidence he seized the child (then a baby three months old) by the legs on November 13, 1906, and flung it down and beat it into a condition of unconsciousness. Shortly afterwards its skull was found to be fractured. On December 29, 1907, the prisoner was heard to beat the child and the following morning its face and head were found to be severely bruised. The child was admitted into the hospital suffering from meningitis on February 17, 1908, from which it died on March 5, 1908. The medical evidence went to shew that the fracture of the skull in so young a child would necessarily cause destruction of the brain tissue, and eventually death, though the child might possibly live with such a fracture for some few years; that the fracture was the main cause of the child's death; but that the subsequent acts of violence, if they took place, would accelerate the death. The Judge, in the course of the summing-up, directed the jury that if they were satisfied that the prisoner either caused the child's death by his violence on November 13, 1906, or accelerated it by his subsequent violence on December 29, 1907, they must find him guilty, which they duly did, and he appealed to the Court of Criminal Appeal. It is obvious that the direction was wrong, because technically, according to the law prevailing in England, there cannot be a conviction for manslaughter where the death does not occur within a year and a day after the injury was inflicted. At the same time if ' justice' means that which the man on the Clapham omnibus would regard as ' just', there was little doubt that Dyson deserved all he got, and more. However the Court (Lord Alverstone C.J., Lawrence and Ridley JJ.) refused to substitute themselves for the jury and consider) whether in fact the later injury had accelerated the death, which is the very thing that ought to have been left to the jury, and concurred in the following passage from Makin v. Attorney General for New South Wales (1894) A.C. 57 which was decided under an Act which contained precisely the same phrase ' miscarriage of justice' (p. 70):
Their Lordships do not think it can properly be said that there has been no substantial wrong or miscarriage of justice, where on a point material to the guilt or innocence of the accused the jury have, notwithstanding objection, been invited by the judge to consider in arriving at their verdict matters which ought not to have been submitted to them.
It seems to me clear that 'justice' in the Criminal Appeal Act in England means 'criminal law' and ' justice ' in the Civil Procedure Code means that standard of justice which the Civil Procedure Code is designed to achieve. That being so, it seems to me impossible to say that, because of the reservation of the inherent powers of the Court, the Court can in pursuance of those supposed powers open a loophole in a barrier between the Government and the aggrieved subject which the Legislature has deliberately set up.
11. It has been well decided by their Lordships of the Privy Council in Bhagchand v. Secretary of State : (1927)29BOMLR1227 on appeal from this Court, that Section 80 applies to all suits whether or not an injunction is claimed, and if the Legislature has seen fit to render Government and its officers free from a suit for a period of two months after every act of which the subject may complain, I cannot imagine that it intended that there should be a side route round that section by which any subject might start proceedings against officers of Government by the simple process of lodging a petition instead of a suit. I cannot subscribe to the view that there is any general right to present petitions for reliefs of this kind in this Court. What the Code contemplates is that in general the jurisdiction of the Court should be invoked by filing of a suit. In certain matters prescribed by statute or by rules of this Court the proper method is by petition, but a complaint that an order has been improperly made by Government is not one of the matters for which rules or any Act of Parliament has prescribed a petition as a proper remedy.
12. Naturally, much stress has been laid on behalf of the petitioners on the recent decision of the Lahore High Court in The Lahore Electric Supply Company, Limited, Lahore v. The Province of Punjab I.L.R (1943) Lah 617 the facts of which were certainly not by any means dissimilar to those in this case, although the Court there found as a fact that the Government's intensions were not what they represented to be and in this case I am not making any such finding of fact as it is not necessary for me to decide any such question. It is noticeable, however, that in that case the impugned order of Government was made after suit was commenced, and there was therefore an element in that case which brought it very near contempt of Court. I have no doubt at all that a litigant who, after suit commenced, so conducts himself as to make futile any order which the Court may make in favour of his opponent, so that he is prejudging the issue pending before the Court, is running a grave danger of being dealt with for contempt, but where he only knows that a suit is likely to be commenced against him that he cannot be so dealt with merely for an attempt to forestall his opponent. The Court may in the latter case restrain him by a mandatory injunction : but issuing a mandatory injunction is one thing and making an order against a party in contempt is another. It is also noticeable that it was an interim relief that was granted in that suit. Apparently under the practice of the Lahore High Court a party could seek such relief by a petition. That is not the practice of this High Court, as I understand it. In the present case I have already shown that it is not sought merely to have a temporary injunction restraining the Government, but what is sought is a permanent declaration, available for all time, that the order in suit is invalid-quite a different thing to what was sought in the Lahore case. I think I need say no more than to say that there is that important difference between the position in the two cases. If the effect of Section 80 is to enable Government to hold these people at bay, so that they have a grievance against Government until the end of the War, or the World, it is a matter for the Legislature to remedy and not for me. However much I may or may not approve of the wording of Section 80, I cannot ignore the fact that it is there, and I cannot, no matter how ingeniously I am invited to do so, carve through the middle of it a right of way which the Legislature has, rightly or wrongly, prohibited.
13. The result is that this petition is misconceived and must be dismissed with costs on the long cause scale.