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Raj Kumar Rajindra Singh Vs. the Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberC.M.P. No. 1119 of 1975 in C.W.P. No. 4 of 1974
Judge
Reported inAIR1976HP34
ActsConstitution of India - Articles 358 and 359(1); ;Himachal Pradesh Ceiling on Land Holdings Act, 1972
AppellantRaj Kumar Rajindra Singh
RespondentThe Union of India (Uoi) and ors.
Appellant Advocate H.S. Thakur, Adv.
Respondent AdvocateAdv. General
Excerpt:
- .....the pendency of the writ petition. similar miscellaneous petitions have been made in the connected writ petitions.2. in all these writ petitions, this court has either made an order restraining the respondents from taking further proceedings under the himachal pradesh ceiling land holdings act, 1972 for the determination of the surplus area or an order permitting the proceedings to continue but restraining tine making of the final order determining the surplus area or, in some cases, an order merely restraining the respondents from dispossessing the petitioners from the surplus area. the learned advocate general prays that during the pendency of the writ petitions the proceedings for the determination of the surplus area upto and including the order determining the surplus area may be.....
Judgment:

R.S. Pathak, C.J.

1. This is a miscellaneous petition by the respondents to the writ petition praying that the interim order already made in the case be modified and appropriate orders be passed safeguarding the interest of the State during the pendency of the writ petition. Similar miscellaneous petitions have been made in the connected writ petitions.

2. In all these writ petitions, this Court has either made an order restraining the respondents from taking further proceedings under the Himachal Pradesh Ceiling Land Holdings Act, 1972 for the determination of the surplus area or an order permitting the proceedings to continue but restraining tine making of the final order determining the surplus area or, in some cases, an order merely restraining the respondents from dispossessing the petitioners from the surplus area. The learned Advocate General prays that during the pendency of the writ petitions the proceedings for the determination of the surplus area upto and including the order determining the surplus area may be allowed to be completed and, he says, he would raise no objection to an order by this Court restraining the respondents from dispossessing the petitioners from the surplus area. At the same time he urges that while making this order of restraint against the respondents, the Court should Impose a condition in appropriate terms restraining the petitioners from taking any steps to change the nature of the land, cut and remove the standing trees and generally to damage or alienate the land or any property thereon affected by the provisions of the Act to the pre-judice and detriment of the State.

3. A preliminary objection has been taken by the petitioners. It is submitted that by virtue of the Presidential Order dated June 28, 1975, made under Article 359 (1) of the Constitution, all, proceedings pending in this Court for the enforcement of the right conferred by Article 14 are to remain suspended for the period of the Proclamation of Emergency made under Article 352 (1) of the Constitution on December 3, 1971 and on June 25, 1975. Our attention has also been invited to Article 358 of the Constitution which provides that while a Proclamation of Emergency is in operation nothing in Article 19 of the Constitution can restrict the powers of the State as defined in Part III of the Constitution to make any law or to take any executive action which the State would, but for the provisions contained in that Part, be competent to make or to take. The petitioners say that a miscellaneous petition for the grant of an interim injunction or for vacating an interim injunction already granted is a part of the proceedings pending in this Court for the enforcement of the rights of the petitioners under Articles 14 and 19 of the Constitution and, therefore, no order can be made by the Court vacating or modifying the interim injunction already granted. It is contended that in considering the grant of the interim relief it is necessary for the Court to examine whether the petitioners have a prima facie case on the merits, and that would involve, it is said, an adjudication of the eights of the petitioners under Articles 14 and 19 of the Constitution.

4. In my opinion, the preliminary objection cannot be sustained. An application for the grant of an interim injunction or an application for modifying or vacating an interim injunction already granted cannot be described as a proceeding for the enforcement of the rights claimed in the present case. Such an application is concerned merely with the question of determining what should be the interim position of the parties with respect to the property in dispute so long as the rights thereto are not adjudicated by the Court. An order of that character does not amount to an adjudication of the rights of the parties or the enforcement of such rights. That adjudication or enforcement is involved in the decision of the present case itself. By virtue of Article 358 and the Presidential Order made under Article 359 (1), the hearing of the writ petition is to remain suspended. An application for interim injunction or an application for vacating or modifying it, not being a proceeding for the enforcement of the rights claimed in the writ petition, is not included within that directive. Merely because for the purposes of considering the grant of an interim injunction the Court must consider whether the petitioner has a prima facie case on the merits does not mean that the grant of the interim injunction amounts to an adjudication or enforcement of the rights claimed by the petitioners. The question before the Court at that stage is whether there is a serious question to be tried between the parties in the present proceeding. That view was taken recently by the Court of Appeal in England in Fellowes v Fisher, (1975) 2 All ER 829. By no argument can the view be justified that an adjudication or enforcement is involved of the rights claimed by the petitioners in the present proceeding. That being so, it is clear that the miscellaneous petitions made by the respondents for the modification of the interim orders made by this Court in the present writ petitions do not fall within the scope of Article 358 or the Presidential Order dated June 28, 1975 made under Article 359 (1) of the Constitution. In my opinion, this Court has jurisdiction to consider and dispose of the miscellaneous petitions, The preliminary objection is rejected.

5. We have heard learned counsel for the parties on the merits of these miscellaneous petitions, and we are of opinion that an order should be made in the terms suggested by the learned Advocate-General. The petitioners contend that in case the respondents are allowed to continue the proceedings under the Act for the determination of the surplus area and an order is made determining the surplus area that will give rise to a multiplicity of proceedings inasmuch, as the petitioners may find it necessary to proceed in appeal to the Commissioner under Section 20 (1) of the Act and thereafter in revision to the Financial Commissioner under Section 20 (2) of the Act. It is pointed out that it may also be necessary to amend the writ petition in order to challenge the order determining the surplus area. It seems to us that any decision taken by the appellate and revisional authorities must stand or fall by the decision rendered by this Court on these writ petitions. If the Act is declared ultra vires, clearly those orders must go. In case the writ petitions are dismissed, the time during which the writ petitions will remain pending will not have been wasted and on the determination of the writ petitions the respondents will be able be proceed forthwith to give effect to the order determining the surplus area. Having regard to all the relevant factors, it seems appropriate that the respondents be permitted to go on with the proceedings for the determination of the surplus area, including the making of an order determining the surplus area. We are, however, of opinion that the possession of the petitioners in the surplus area should not be disturbed during the pendency of the writ petitions. While making that order, it seems desirable in the interests of justice and for the purpose of preserving the property in dispute, that the petitioner should be restrained from changing the nature of the land, from cutting and removing the trees standing thereon and generally from damaging and alienating the land and such property standing thereon as may be affected by the provisions of the Act to the prejudice and the detriment of the State.

6. The interim orders made in the several writ petitions are modified accordingly.


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