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Lingaraj Nanda Vs. State of Orissa Represented by the Secretary, Revenue Department and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberS.C.A. No. 104 of 1970
Judge
Reported inAIR1972Ori61
ActsConstitution of India - Articles 133(1) and 226
AppellantLingaraj Nanda
RespondentState of Orissa Represented by the Secretary, Revenue Department and ors.
Appellant AdvocateL. Rath and ;U.K. Nanda, Advs.
Respondent AdvocateR. Mohanty, ;R.K. Kar, ;B. Rath, Advs. ;M.N. Das, Adv. General and ;Govt. Adv.
DispositionCivil Application allowed
Cases ReferredRam Lakshman Singh v. Girindra Mohan. It
Excerpt:
.....commissioner recommended the lease in favour of the petitioner and negatived the claim of shri alekh sahu (opposite party no. on such an application being filed the collector recommended that the lease be sanctioned in favour of the petitioner. or (b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; ' after having heard the learned advocates we are clearly of opinion that this is not a fit case for appeal to the supreme court and as such article 133(1)(c) has no application. the proceeding in this case clearly relates to civil rights of the parties. on this analysis, clause (b) is clearly applicable......in favour of opposite party no. 6; and (iii) to take immediate steps to deal with the pending lease applications in accordance with the provisions contained in the orissa urban land settlement rules, 1959 and orissa government land settlement act, 1962 and the rules framed thereunder. the writ application was hotly contested and was ultimately dismissed by the judgment of this court reported in ilr (1970) cut 1318, sadhu charan behera v. state of orissa.3. mr. rath for the petitioner contended that leave to appeal should be granted under all the three clauses of article 133 of the constitution which runs thus:--'133. (1) an appeal shall lie to the supreme court from any judgment, decree or final order in a civil proceeding of a high court in the territory of india if the high court.....
Judgment:

G.K. Misra, C.J.

1. The application for leave to appeal is under Article 133(1) (a), (b) and (c) of the Constitution of India. The petitioner's writ application was O.J.C. No. 813 of 1968.

2. The facts of the writ application, bereft of all details, may be stated in short to appreciate the points in controversy. The petitioner is the proprietor of a local theatre known as Annapurna Theatre. Cm 18-9-1958 he applied to the Government for lease of plot No. 723 situate in the City of Cuttack with an area of 0.923 acre for the purpose of having a theatre at the place. The Collector and the Revenue Divisional Commissioner recommended the lease in favour of the petitioner and negatived the claim of Shri Alekh Sahu (opposite party No. 6), the proprietor of Raj Tarangini Films, who had applied for lease of the same for locating a cinema. At one stage it appears to have been decided that the land would be settled by public auction. The petitioner alleged that while matters had not been finalised he was again asked by the Collector on 3-7-1963 to apply for lease of the land. On such an application being filed the Collector recommended that the lease be sanctioned in favour of the petitioner. While matters thus stood, the State of Orissa (opposite party No. 1) sanctioned the lease in favour of opposite party No. 6 on 20th of January, 1968. The main terms of that impugned order sanctioning the lease (Annexure 8 to the writ application) run thus:--

' X X X X X I am directed to say that after carefulconsideration of the applications received so far for lease of lands mentioned above and your recommendations in letter No. 3797 dated 23rd June, 1961, and No. 1228 dated 30th March, 1965, and No. 3247 dated 21st October, 1965 Government are pleased to sanction the lease of Ac. O. 902 of land in plot No. 723 in Mouza Sutahat of Cuttack town in favour of Raj Tarangini Films, Ranihat, for construction of an Air-conditioned Cinema house on payment of a premium of Rupees 60,000/- (Rupees sixty thousands only) and an annual rent of Rs. 600/- subject to the following terms and conditions:

(a) If the cinema is not constructed within a period of two years from the date of execution of the deed then the land shall revert to Government free from encumbrances.

(b) The land shall be leased out for a period of 90 years.

' X X X X X 3. A lease deed in the form prescribed under the Orissa Urban Land Settlement Rules, 1959 shall be got executed with the authorised representative of Raj Tarangini Films, Ranihat, and registered at their cost.'

The petitioner averred that the order sanctioning the lease was mala fide, arbitrary and for grossly inadequate consideration, and was passed without taking into consideration the claim of the petitioner. Despite serious objections and in the face of great public clamour the possession of the disputed land was delivered to opposite party No. 6 without any lease deed being executed.

On these averments, the petitioner asked for the following reliefs:--

(i) To issue a writ of mandamus prohibiting opposite parties 1 to 6 from executing any lease in favour of opposite party No. 6 in respect of the disputed land.

(ii) Directing opposite parties 1 to 5 to cancel the impugned order dated 20-1-68 granting lease of the disputed land in favour of opposite party No. 6; and

(iii) To take immediate steps to deal with the pending lease applications in accordance with the provisions contained in the Orissa Urban Land Settlement Rules, 1959 and Orissa Government Land Settlement Act, 1962 and the Rules framed thereunder.

The writ application was hotly contested and was ultimately dismissed by the judgment of this Court reported in ILR (1970) Cut 1318, Sadhu Charan Behera v. State of Orissa.

3. Mr. Rath for the petitioner contended that leave to appeal should be granted under all the three clauses of Article 133 of the Constitution which runs thus:--

'133. (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies-

(a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may be specified in that behalf by Parliament by law; or

(b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or

(c) that the case is a fit one for appeal to the Supreme Court,

and, where the judgment, decree or final order appealed from affirms the decision of the Court immediately below in any case other than a case referred to in Sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law.'

After having heard the learned Advocates we are clearly of opinion that this is not a fit case for appeal to the Supreme Court and as such Article 133(1)(c) has no application.

4. A civil proceeding includes all proceedings affecting civil rights which are not criminal. The proceeding in this case clearly relates to civil rights of the parties. A proceeding under Article 226 of the Constitution for issuing a writ of mandamus concerning civil rights is a civil proceeding. This view is concluded by AIR 1965 SG 1818, S.A.L. Narayan Row v. Ishwarlal Bhagwandas and AIR 1966 SC 1445, Ra-mesh v. Gendalal Motilal Patni.

5. The next question for consideration is whether Article 133(1)(a) has any application. In applying it, an enquiry on two points is essential, (i) what is the subject-matter of the dispute, and (ii) what is the amount or value of the subject-matter of the dispute.

In respect of any property various kinds of dispute may arise. Both or either title and possession may be in issue. Reliefs are modulated according to the nature of the infringement of those rights. Subject-matter of dispute means the cause of action, that is, the right which one party claims against the other and demands the judgment of the court upon it. (See (1873) 1 Ind App 84, Kristo v. Hurnomonee). In the first category of cases the relief would be declaration of title and recovery of possession; while in other cases it may be confined to recovery of possession only. Where the suit is for establishment of a mere right of easement, the subject-matter of dispute is the easementary right and not the building in respect of which the right of easement is claimed. If the relief sought is merely one of injunction, the subject-matter of the dispute is the injunction and not the property.

Thus property and the subject-matter of the dispute may be different though in some cases they may be the same.

In this case the relief sought was to issue a writ to cancel the sanction order in favour of opposite party No. 6 and for consideration of the application of the petitioner along with the applications of other applicants and for issuing a writ of mandamus against opposite parties 1 to 5 not to execute any lease in favour of opposite party No. 6. The subject-matter of the dispute therefore is not the leasehold itself in which the petitioner has got no title.

6. Now, what is the value of the subject-matter? The writ application itself does not give any valuation. No indication has been given in the application for leave to appeal as to how the reliefs are valued. The subject-matter in this case is incapable of valuation. Where the subject-matter is incapable of valuation, Article 133(1)(a) has no application. This view is concluded by AIR 1965 SC 1440, Chittarmal v. Shah Pannalal Chandulal and AIR 1970 SC 2041, M/s. Shree Krishna Gyanodaya Sugar Ltd. v. The State of Bihar. In the first case the claim in the suit was for recovery of a sum of Rs. 10,665/- and for rendition of accounts. The relief for rendition of accounts is incapable of valuation. The relief of recovery of Rs. 10,665/- being less than Rs. 20,000/-, Clause (a) was held to be inapplicable. In the latter case the subject-matter of the dispute was the grant of licence for supply of liquor. The certificate granted by the High Court under Article 133(1)(a) was held to be erroneous and was quashed as the grant of licence was incapable of valuation.

7. The next question for consideration is whether Article 133(1)(b) has application. There was conflict of views as to whether the word property in Clause (b) relates to property other than that which is the subject-matter of the dispute. The controversy is now settled by AIR 1965 SC 1440. Their Lordships observed:--

'But the property respecting which the claim or question arises must be property in addition to or other than the subject-matter of the dispute. If in a proposed appeal there is no claim or question raised respecting property other than the subject-matter, Clause (a) will apply; if there is involved in the appeal a claim or question respecting property of an amount or value not less than Rs. 20,000/- in addition to or other than the subject-matter of the dispute, Clause (b) will apply.'

In that case the claim for money was definite and the rest was to be ascertained on taking accounts. The judgment did not involve any claim or question relating to property in addition to or other than the subject-matter of dispute. Accordingly, Clause (b) was held not to govern the case.

Applying the aforesaid principle, Clause (b) would apply to this case. The premium paid for the leasehold was much more than Rs. 20,000/-. There is no dispute that the value of the leasehold is much more than Rs. 20,000/-. As has already been indicated, the leasehold itself is not the subject-matter of the dispute. 'A thing is said to be 'involved' in another when it is a necessary resultant of that other' (see Stroud's Judicial Dictionary, 3rd Edition). The judgment of the High Court thus directly or indirectly involves a claim to the leasehold of the value of more than Rupees 20,000/- which is other than the subject-matter of the dispute. On this analysis, Clause (b) is clearly applicable.

8. Reliance was placed by Mr. Mohanty on AIR 1968 Cal 316, Ramric Lal Saha v. Sachindra Narayan Roy that where the tenancy is the subject-matter of the dispute, the building in respect of which the right of tenancy is claimed it not directly or indirectly involved in the judgment. This decision has taken a view different from AIR 1956 All 348, Central Talkies v. Dwarka Prasad and AIR 1963 Cal 13, Ram Lakshman Singh v. Girindra Mohan. It is not necessary to express any view as to which of these decisions lay down the law correctly. Analogy of a tenancy has no application to the present case where the judgment directly or indirectly involves a claim to the leasehold.

9. We would accordingly hold that leave to appeal should be granted under Article 133(1)(b). A certificate be accordingly issued.

10. The application for leave toappeal is allowed; but in the circumstances there will be no order as to costs.

A. Misra, J.

11. I agree.


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