1. This is an application on the part of the plaintiffs for an order that a mandatory injunction be granted by this Court enjoining the defendant his servants and agents to restore the status quo by handing back or causing to be handed back to the plaintiffs the areas taken away from them by the requisitioning order of the defendant dated 30th September 1942, together with all moveable property thereon belonging to the plaintiffs. The present application came to be made in the following circumstances: On 28th September 1937, a contract was entered into between the plaintiffs and the defendant which granted the plaintiffs the right to extract bhabar grass for 15 years in six forest areas in the Western circle in the United Provinces, namely, the Saharanpur, Lansdowne, Kalagarh, Ramnagar, Haldwani and Dehra Dun Division. The contract a copy of which is annexure 'A' to the plaint was expressed to be made between the Governor of the United Provinces of the one part and Baldeodas Bajoria and Nandkishore Bajoria carrying on business in partnership under the name and style of Messrs. Bajoria and Co. of the other part. By this contract it was provided that: (i) the plaintiffs should pay to the defendant certain annual payments as therein specified and in addition thereto a royalty of a sum equal to 2 per cent, of the net profits; (ii) that the plaintiffs should extract from the said areas a minimum of four lakhs maunds of bhabar grass in every year and pay a penalty in respect of any shortage of extraction; (iii) that if the factory was not capable of producing 6000 tons of paper annually then the defendant should have the option either to cancel the sale thereby made in respect of so much quantity of the produce of every year as would in the opinion of the Conservator be in excess of the requirements of the factory or to permit the plaintiffs to sell such surplus to a third party on such terms and conditions as the Conservator may fix. There was also a provision for referring all disputes between the parties arising out of this contract or concerning any of the terms or conditions to be referred to the Chief Conservator of Forests of the United Provinces.
2. It appears that in the years 1938-39 and 1939-40 there was shortage in extraction and certain amount of fine was imposed upon the plaintiffs in terms of the contract. On 16th April 1942, the Conservator of Forest purported to act under Clause 17(2) and gave notice to the plaintiffs cancelling the said contract in respect of three areas, namely, Lansdowne, Kalagarh and Ramnagar divisions. It is stated that those three areas have been transferred to a rival concern of the name of Sri Gopal Paper Mills. Objection was taken to this notice by the plaintiffs through their solicitors by letter dated 22nd May 1912. On the same day notice under Section 80, Civil P. C, was given on behalf of the plaintiffs. Thereafter on 19th June 1942, the forest authorities purported to refer the matter to the Chief Conservator of Forests for a decision that the notice given on 16th April 1942, was valid and binding and the Chief Conservator of Forests gave a notice to the plaintiffs fixing 8th July 1942 as the date when he would hold the arbitration. The period of notice under Section 80, Civil P. C, was still current and accordingly on 6th July 1942 the plaintiffs made an application under Sections 5 and 33, Arbitration Act, and obtained an interim injunction restraining the defendant and the arbitrator from further proceeding with the threatened arbitration. On 28th July 1942 the present suit was filed in this Court by the plaintiffs against the Governor of the United Provinces as the defendant. The reliefs claimed in this suit are as follows: (a) a declaration that the defendant is not entitled to take any action against the plaintiffs under and by virtue of para. 2, Clause 17(2) of the said contract, (b) For an injunction restraining the defendant, his officers, servants and agents from taking any action against the plaintiffs under para. 2, Clause 17(2) of the said contract and, (c) alternatively damages for breach of contract.
3. After this suit was filed the plaintiffs' application under Sections 5 and 33, Arbitration Act, came up for hearing before Khundkar J. on 4th August 1942 when that application was dismissed, but without prejudice to the plaintiffs' right in any application that might be made by the defendant under Section 34, Arbitration Act. On 10th August 1942 the defendant took out a notice of motion for stay of the suit under Section 34, Arbitration Act. The annual vacation of this Court having intervened the motion could not be heard for sometime. In the meantime, on 30th September 1942, an order was made under Rule 75A, Defence of India Rules by the defendant. The copy of this order is Ex. A to the present petition. By this order the defendant in exercise of the powers conferred by it. 75A, Defence of India Rules, requisitioned the bhabar grass in the Lansdowne and Kalagarh forest divisions for a period commencing from 20th October 1942 and ending with 30th September 1943, and directed the plaintiff to place the same at the disposal of the Government and made provisions for compensation to be paid to the plaintiff as therein stated.
4. The application for stay of the suit came up for hearing before Sen J. in February 1943 and was heard for several days. Pending the delivery of judgment on that application the present notice of motion was taken out on 23rd February 1943. Two days later, that is to say, on 25th February 1943 Sen J. acceded to the application under Section 34 and ordered a stay of this suit. The present application before me has been opposed by Mr. S. N. Banerjee on behalf of the defendant on a variety of grounds. His first point is that the suit in which this application has been made is based on the alleged rights of the plaintiffs under certain provisions of the contract, and they are asking for a declaration that the defendant was not entitled to take action against the plaintiff under those provisions of the contract and also an injunction restraining the defendant from doing so, and alternatively damages for breach of contract. In the present application the plaintiff's are complaining against the order under Rule 75A which came long after the suit had been filed and therefore could not possibly form part of the cause of action in this suit as framed, and the validity or otherwise of this order would not form: the subject-matter of any issue for the determination of this Court in this suit, and therefore having regard to the fact that the present application raises questions which are outside the scope of the suit this Court has no jurisdiction to grant any relief in this suit.
5. Mr. Isaacs, on the other hand, contends that the effect of the order is to displace his suit and it affects reliefs that he is entitled to get in the suit and therefore it is a wrong act which this Court has every power to prevent the defendant from doing in order to give relief asked for in this suit. I am inclined to agree with Mr. Banerjee on this point. In my opinion if the plaintiffs are aggrieved by this order, it affords, an independent cause of action to them and in a properly constituted suit it may or may not give them the right to have an interlocutory order of the nature asked for now, but I do not think that I can make an order of this nature in the suit as framed.
6. Mr. Banerjee next contends that an interlocutory mandatory injunction is indeed an exceptional remedy and consequently it is essential for the aggrieved party to come to Court as early as possible. He points out that in this case the order complained against was made on 30th September 1942 and this application was not made until 23rd February 1943. Mr. Isaacs has explained that after the order was made the matter was taken up with the authorities and correspondence went on between the parties until 12th February 1943 when the Government authorities definitely closed the correspondence and the application was made within 11 or 12 days after that. Having regard to the acrimonious correspondence that was going on between the parties I do not think that this delay is sufficiently explained by the facts mentioned by Mr. Isaacs. I do not think that the plaintiffs could reasonably, in view of the fact that suit was pending and in circumstances set out in their petition, expect any consideration from the authorities. They should not have waited in the vain hope of getting relief from the defendant. If they were aggrieved and wanted a remedy they ought to have come to Court much earlier, and this delay, in my opinion, is fatal to this application. The next point urged by Mr. Banerjee is that the order prayed for will be infructuous. The requisitioning order was made on 30th September 1942 and it was to be operative for a period up to 30th September 1943. The Shree Gopal Paper Mills have been working in these areas since the order was made. The grass extracted by them cannot now be restored to the plaintiff. Further it appears from the correspondence that no work can be done in the forest between 1st July and 30th September. Therefore after only a month and a half the work will stop. Therefore the mischief has practically been completed. In these circumstances in my opinion the Court should not make any interlocutory order which will be infructuous for all practical purposes.
7. Mr. Banerjee then relies on Section 306, Government of India Act and contends that the suit in which this application has been made is incompetent and misconceived. Mr. Isaacs suggests that although the suit was nominally in the name of the Governor of United Provinces, in substance the suit was against the Province. He explains that the contract was expressed to be made by the Governor and therefore the suit had to be brought in the name of the Governor. I do not think the explanation is sound. Section 49, Government of India Act, lays down that the executive powers of the Province are to be exercised by the Governor, and Section 175 Sub-section (3) provides that all contracts are to be expressed to be made by the Governor. Therefore, there was nothing peculiar in this particular contract having been expressed to have been made by the Governor. Under Section 79, Civil P. C, such a suit is to be filed in the name of the Province, but that was not done in this case. I think the suit being, on the face of it, against the Governor of a Province it is hit by Section 306, and that being so, it would not be right for me to intertain any application in such a suit. It is true that the Governor of the United Provinces received the notice under Section 80, appeared in the suit and resisted the plaintiff's application, and also made a substantive application for stay, but I do not agree with Mr. Isaacs that by those proceedings the defen dant is estopped from relying on this point.
8. The next point argued by Mr. Banerjee is that under Section 16, Defence of India Act, an order made in exercise of any power conferred by or under that Act cannot be called in question in any Court. I have also been referred to Section 17 which gives protection to persons for anything which is in good faith done or intended to be done in pursuance of that Act, or any rules made thereunder. Mr. Isaacs relies on a recent case reported in Lahore Electric Supply Co., Ltd. v. Province of the Punjab ('43) 30 A. I. R. 1943 Lah. 41. But Mr. Banerjee points out that in that case the learned Advocate-General of the Punjab conceded that if the plaintiffs could show and the Court came to the conclusion that the orders were passed for some collateral purpose, that if they were not made bona fide for the purpose alleged by the order, Section 16 would be no bar. In this case Mr. Banerjee makes no such concession, and he has argued that if the requirements of the rules are complied with, namely, if it is made to appear that in the opinion of the requisite authority a certain thing is necessary to be done then it is not for any Court to question the bona fide of such opinion of the authority. In this case, the order is on the face of it explicit on this point, and, I am inclined to agree with Mr. Banerjee that Section 16 is also a bar to this application. Mr. Banerjee also relies upon Section 56, Specific Relief Act, and contends that under that section no perpetual injunction can be granted to interfere with the public duties of any department of the Central Government, the Crown representative or any Provincial Government, and if a perpetual injunction of this nature cannot be granted a temporary should not also be granted. As at present advised I am not prepared to hold that the powers of this Court to grant temporary injunction are limited to the cases where a perpetual injunction can be granted and I would not be prepared to refuse this application on this ground. This application appears to me to be defective also in form. According to the rules of this Court framed under the Indian Arbitration Act, this application should have been intituled in the matter of that Act. Further under those rules notice should have been given to Shree Gopal Paper Mills who are likely to be affected. The result is that for reasons hereinbefore stated, in my opinion, this application is misconceived and should be dismissed with costs.