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Wazir Chand and anr. Vs. State of Himachal Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Ptn. Nos. 12 and 16 of 1951
Judge
Reported inAIR1952HP35
ActsConstitution of India - Article 226
AppellantWazir Chand and anr.
RespondentState of Himachal Pradesh and ors.
Appellant Advocate A.N. Grover, Adv.
Respondent Advocate L.N. Sethi, Government Adv.
DispositionPetition dismissed
Excerpt:
- .....but in respect of certain specific items aggregating rs. 1,925/- and adding the present petitioner wazir chand as an abettor.3. another firm, known as the himachal drug nurseries, carries on the same business of extracting, collecting and exporting various kinds of medicinal herbs at chamba in the state of himachal pradesh. the first lease for the doing of this business was obtained by this firm from the state of himachal pradesh in june, 1949, for one year from 1-9-1949 to 31-8-1950, and it was renewed on 10/6/1950 for another year from 1/9/1950 to 31/8/1951.4. in consequence of the reports mentioned above the jammu and kashmir police, with the help of the chamba police, effected a number of seizures in april, june, july and august, 1951, of medicinal herbs belonging to the himachal.....
Judgment:
ORDER

Chowdhry, J.C.

1. These are two petitions under Article 226 of the Constitution of India, one filed on 21-8-1951 by Wazir Chand and R. S. Sharma against the State of Himachal Pradesh, the District Magistrate of Chamba and the Station House Officer Kotwali Chamba, and the other by the former alone on 20-9-1951 against the first two of the three respondents mentioned above, against the seizure at Chamba of certain medicinal herbs, alleged to be worth about Rs. 47,000/-, by the Jammu and Kashmir police with the help of the Chamba police. The reliefs prayed for, and the grounds on which those reliefs are based, will appear from the following.

2. There is a firm styled the Kashmir Woods with Prabhu, Dayal, Trilok Nath and Gauri Shankar as its partners and its head office at Jammu, which carries on timber business in the Jammu and Kashmir State. On 4-3-1951 the two partners Prabhu Dayal and Gauri Shankar lodged a report with the police at Jammu against the third partner Trilok Nath and two employees of the firm in respect of an offence punishable under Section 409 of the Penal Code, the allegation being that criminal breach of trust had been committed to the tune of Rs. 1,00,000/- by falsification of accounts. This was followed by another report dated 23-6-1951 against the same persons for the same offence, but in respect of certain specific items aggregating Rs. 1,925/- and adding the present petitioner Wazir Chand as an abettor.

3. Another firm, known as the Himachal Drug Nurseries, carries on the same business of extracting, collecting and exporting various kinds of medicinal herbs at Chamba in the State of Himachal Pradesh. The first lease for the doing of this business was obtained by this firm from the State of Himachal Pradesh in June, 1949, for one year from 1-9-1949 to 31-8-1950, and it was renewed on 10/6/1950 for another year from 1/9/1950 to 31/8/1951.

4. In consequence of the reports mentioned above the Jammu and Kashmir police, with the help of the Chamba police, effected a number of seizures in April, June, July and August, 1951, of medicinal herbs belonging to the Himachal Drug Nurseries in Chamba town and at various places in the district of Chamba. It is against these seizures that the present petitions have been filed, and the details of the seizures are contained therein. The first petition was filed on 21-8-1951 against the seizures that had been made in April, June and July, 1951, and the second petition was filed on 20-9-195.1 against seizure made in August, 1951. Out of the total number of bags mentioned in the first petition 52 are alleged to have been sold by Wazir Chand to R. S. Sharma in June, 1951, and that is how the latter figures as a petitioner under the first petition. The herbs seized in August, 1951, are said to belong to Wazir Chand alone, and therefore he is the sole petitioner under the second petition.

5. Before filing the present petitions, on 11-5-1951 to be more exact, Wazir Chand filed an application under Section 523, Criminal P. C., for delivery of the seized goods to him. It was dismissed by a first class Magistrate of Chamba on 3-7-1951. Wazir Chand then went up in revision to the District Magistrate of Chamba, and that revision is still pending. The petitioners allege that from certain observations which the District Magistrate has made on 11-8-1951 it seemed that he was not inclined to set right the wrong that had been done. It is further alleged that, in compliance with a lettter sent by the District Magistrate of Jammu to the District Magistrate of Chamba, it is apprehended that the latter will hand the seized goods over to the Jammu and Kashmir police to be taken away to that State.

6. The petitioners allege that the seizure was illegal, ultra vires and without jurisdiction, and that the threatened extradition of the seized goods would be wholly opposed to all principles of justice and equity, and there is no law in force in India whereunder extradition of the goods could be made from this State to the State of Jammu and Kashmir. It is further alleged by them that the seized herbs have no connection with the alleged offence, but are the property of the Himachal Drug Nurseries, of which the petitioner Wazir Chand is the sole proprietor.

7. The allegations made by the petitioner Wazir Chand in support of his title are these. The Himachal Drug Nurseries belonged exclusively to and was the separate business of the aforesaid Trilok Nath, one of the partners of the Kashmir Woods of Jammu. As Trilok Nath was in need of financial help he took Wazir Chand into partnership by means of an. oral agreement on 28-12-1949, and the latter made investments aggregating about Rs. 30,000/-in the business. After the second lease Trilok Nath was unable to make any investments, while investments made by Wazir Chand continued to increase, with the result that they agreed on 31-8-1950, and again orally, to dissolve the partnership. The partnership was actually dissolved by means of a written unregistered agreement dated 10-12-1950 with retrospective effect from 1-9-1950 (that being the date of commencemnt of the second term of the lease).

Under the terms of this deed Trilok Nath relinquished his share in the partnership in consideration of a sum of Rs. 20,000/-, and Wazir Chand became the sole proprietor of the Himachal Drug Nurseries with effect from 1-9-1950. About five months after the written agreement, i.e. on 12-5-1951, the Himachal Pradesh Government recognised, at the instance of Trilok Nath, the transfer of the latter's lessee rights in favour of Wazir Chand. Wazir Chand is Trilok Nath's own brother.

8. The reliefs claimed by the petitioners on foot of the above allegations are writs in the nature of mandamus directing the respondents to release the seized goods in favour of the petitioners and to refrain from passing any orders about the extradition of those goods and their handing them over to the Jammu and Kashmir authorities, a writ in the nature of certiorari quashing the proceedings relating to the seizure of the goods in question and their extradition from the territory of India to the State of Jammu and Kashmir, and such other directions as this Court might deem just and proper in the circumstances of the case.

9. The petitioners obtained a rule calling upon the respondents to show cause why the said writs and orders should not be issued against them. At the same time, an ex parte order, or rule nisi, was issued prohibiting the respondents from doing anything which may have the effect of the removal of the goods from the jurisdiction of this Court.

10. Cause has been shown by the respondents, and the pleas taken by them are that the Chamba business known as the Himachal Drug Nurseries, is a partnership of the Kashmir Woods and one Bhagwan Singh and financed and controlled by the former; that Wazir Chand has no right, title or interest in the Himachal Drug Nurseries or the goods seized, the alleged transfer of his rights by Trilok Nath in favour of his own brother, Wazir Chand, having been made fraudulently and by making forged entries in the books of. account of the Kashmir Woods; that the seizure of goods was legal, and necessary steps for extradition of goods, which is allowed by the law, are being taken; that the present petition is not competent inasmuch as the petitioners are pursuing another remedy by way of a revision petition before the District Magistrate against the dismissal of their application under Section 523, Criminal P. C.; and that since the petitioners have a right to come up in revision to this Court against the decision of the District Magistrate, in case the revision is decided against them, the extraordinary jurisdiction under Art 226 of the Constitution of India, cannot be invoked by them.

11. In reply to the contention of the respondents that the petitioners are already pursuing another remedy by way of an application under Section 523, Criminal P. C., the learned counsel for the petitioners cited the 'MUNICIPAL CORPORATION FOR THE CITY OF BOMBAY v. GOVIND LAXMAN', AIR (36) 1949 Bom 229, for the proposition that there is no reason why a person whose right has been infringed should only come to Court by way of a suit since filing of suit is not as efficacious a remedy as an application under Section 45 of the Specific Relief Act. He also cited 'DORMAN LONG AND CO. LTD V. JAGADEESHCHANDA MAHINDRA', 62 Cal 596; 'KHURSHED MODY V. RENT CONTROLLER BOMBAY', AIR (34) 1947 Bom 46; and 'RASHID AHMED V. MUNICIPAL BOARD, KAIRANA', AIR (37) 1950 S C 163, for the proposition that the mere fact that another remedy by way of appeal (in the present case, by way of revision against the decision of the District Magistrate) is open to the petitioners is not conclusive against issuing the necessary writs where the same are claimed upon the breach of a fundamental principle of justice. And in support of the proposition that the High Court is empowered to issue necessary writs or orders even against the executive under Article 228 of the Constitution, he cited 'LADY DINBAI PETIT V. M. S. NORONHA', AIR (33) 1946 Bom 407, and 'jeshingbhai ishwarlal v. Emperor', AIR (37) 1950 Bom 363.

12. The propositions adumbrated by the learned counsel for the petitioners do not however solve the main difficulty which I find in the way of granting the reliefs, or any of them, claimed by the petitioners. And that difficulty is whether the petitioners have a right to claim those reliefs. Article 226 of the Constitution, speaks of the issue of the writs and orders in question 'for the enforcement of any of the rights conferred by Part III and for any other purpose'. That there should have been an infringement of any of the rights conferred by Part III is quite clear; but the words 'for any other purpose' also necessarily presuppose the infringement of some right or the other, though not any of the rights conferred by Part III, as a condition precedent to the issue of the said writs or orders. The simple reason for this view is that there could be no question of the grant of a relief by a Court without the infringement of a legal right. Two of the rulings cited by the learned counsel for the petitioners himself support this view.

The ruling in 'DORMAN LONG & CO. LTD. v. JAGADEESHCHANDRA', 62 Cal 596, speaks of the determination of 'questions affecting the rights of subjects' in dealing with the discretionary power of the High Court to issue the writs. The ruling in 'MUNICIPAL CORPORATION FOR THE CITY OF BOMBAY v. GOVIND LAXMAN', AIR (36) 1949 Bom 229 is still more specific on the point, for it lays down as follows:

'Under Section 45, Specific Relief Act, in order to satisfy the first proviso a party must have some interest in property, franchise or personal right, the injury to which alone would entitle him to maintain a petition under that section. And again: 'There is no difference in principle between the title which would entitle a person to sue for redress for an injury done to his property, and the title which would be equally necessary to make a petition under Section 45 maintainable.'

And again, while comparing the remedies by way of an application under Section 45, Specific Relief Act, and by way of a suit: 'The title which the petitioner or the plaintiff has to establish, the interest which he has got to prove is identical in both cases. He must show that there is an invasion to his property, franchise or personal right, and there can only be an invasion provided he has a legal specific right in property or in franchise or he has some personal right.' I find further support for my view from the following observations in 'BAGARAM TULOULE V. STATE OF BIHAR', AIR (37) 1950 Pat 387:

'Article 226 contemplates the issue of writs and directions for purposes other than the enforcement of the fundamental rights. At the same time, the words 'for any other purpose' in the Article can hardly mean that the High Court can issue writs for any purpose it pleases. The correct interpretation is that the words mean 'for the enforcement of any legal right and the performance of any legal duty.'

13. It appears to me further that not only should the petitioner under Article 226 of the Constitution be clothed with a legal right for the infringement of which he prays for the issue of the necessary writs or orders, but that the determination of that right should not depend upon the elaborate procedure which is only possible in a suit but not in the summary proceedings under that Article. The use of the words 'shall have power' in the Article emphasises the fact that the issue of the writs, directions and orders in question is entirely a matter for the discretion of the Court. And one of the grounds against the exercise of that discretion would be that the right claimed by the petitioner is not capable of being established in the summary proceedings under the said Article.

14. It has been seen that the petitioner Wazir Chand claims to have become the sole proprietor of the Himachal Drug Nurseries on foot of two oral agreements with Trilok Nath and a subsequent written agreement with retrospective effect. This transfer of his rights by Trilok Nath (as a mere partner of the firm Kashmir Woods, according to the affidavit of Prabhu Dayal filed by the respondents) in favour of his own brother, the present petitioner Wazir Chand, has been characterised as fraudulent. It has been further contended that the fraudulent transfer has been brought about by making forged entries in the books of account of the Kashmir Woods. Wazir Chand has traversed these allegations by filing a counter-affidavit to the effect that the duplicate books of account, referred to as forgeries by Prabhu Dayal, were nothing but 'regularised' books of account, and in support of this contention he invites comparison with the books of account of another branch of the Kashmir Woods known as the Jammu Saw Mills.

The books of accounts of neither the Kashmir Woods nor of the Jammu Saw Mills have been filed. Even if they had been filed that alone would not have enabled this Court to arrive at a definite conclusion. In order to find whether the entries in those books of account were genuine or forged, or what the effect of those entries on the alleged right of Wazir Chand was, or whether the agreements set up by Wazir Chand were genuine or for consideration, it would be necessary that all these persons, and such witnesses as they might deem it necessary to produce in support of their respective allegations, should appear in the witness-box. A number of affidavits have been filed on behalf of either party--those of Wazir Chand. and certain alleged employees of the Himachal Drug Nurseries on behalf of the petitioners, and of Prabhu Dayal, Gauri Shankar, Bhagwan Singh and a head-constable of the Jammu and Kashmir police on behalf of the respondents; but the truth or falsity of the contents of those affidavits cannot be ascertained without the deponents being subjected to cross-examination.

Again, the petitioner Wazir Chand professes to have paid royalties to the Himachal Pradesh Government, but the question of whether these royalties were in fact paid and, if so, whether the source of payment can be traced to Wazir Chand, and not to Trilok Nath or to the Kashmir Woods, cannot be determined without the production of the records of the Forest Department, to whom the royalties are said to have been actually paid, or the records of the Punjab National Bank, through which the payment is said to have been made.

Wazir Chand professes to have made part of the investments in the Himachal Drug Nurseries by raising a loan from the Punjab and Sind Bank Limited Amritsar, but again the books of account of that Bank have not been filed. In his original affidavit Wazir Chand confined his allegation to the assertion of having become the sole proprietor of the Himachal Drug Nurseries. In his subsequent affidavit dated 19-10-1951 which was filed in reply to the affidavit of Prabhu Dayal, he admitted that the latter was originally a partner in that business but contended that subsequently he (Prabhu Dayal) relinquished his connection with that business. And in support of this contention he again relied upon entries in certain books of account, which have not been filed. Obviously Wazir Chand was at pains to show not only that the seized goods belonged exclusively to him but also that Prabhu Dayal had no right, title or interest in them so as to be entitled to have them seized on foot of the police reports which he had lodged in Jammu.

15. In view of all that I have said above I would not go so far as to hold that the petitioners have failed to prove that they have any right, title or interest in the goods seized. It will not be fair to do so in the present summary proceedings. But this much must certainly be said that it is not possible for this Court on the material placed before it, or which could possibly be placed in these summary proceedings; to come to a finding whether the petitioners have the right to claim the reliefs prayed for by them. The proper remedy for them therefore is not by way of a petition under Article 226 of the Constitution of India but by any other action, e.g. a civil suit, which may be open to them.

16. The rules are discharged, and the petitions are dismissed. The petitioners will payRs. 200/- as costs to the State of HimachalPradesh.


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