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Madhya Pradesh High Court · body

1952 DIGILAW 30 (MP)

Gangaram v. State

1952-02-29

DIXIT, SHINDE

body1952
JUDGMENT : SHINDE, J. 1. This is a petition for the issue of a writ in the nature of Mandamus or some appropriate order or direction against the State. The petition alleges that the applicant was a tenant of a portion of land known as the Sewage farm Gwalior from 1935 to 1942: that in 1942 the then Gwalior Government ordered acquisition of the land and property situated upon it for the purpose of handing it over to the Gwalior Dairy Company Ltd. and accordingly on 1-7-1942 the applicant was forcibly ejected from the land contrary to the terms of the agreement; that after the above event the applicant applied to the Government to compensate him for the loss and to give him fresh land for cultivation; that the matter regarding giving of the land remained pending before the then Gwalior Government: that after the formation of Madhya Bharat Mr. Syad Hamid Ali the then Minister appointed Mr. Ramkrishna Dixit as an arbitrator for deciding the dispute; that after perusing the record and hearing the parties Mr. Ramkrishna Dixit gave his award in which he recommended the Government to band over 60 acres of land of the Sewage Farm after the termination of the lease of the Gwalior Dairy Ltd.; that Shree Syad Hamidali confirmed the said award and passed orders accordingly; that after the said order of the Minister the Government published a notice inviting tenders for the same land in the Government Gazette dated 15th April, 1950; that the applicant, after the said Notification protested against it but to no effect; that the applicant has been deprived of the valuable right by not receiving the possession of the land to which he is entitled. On these allegations the petitioner prays that a writ of Mandamus or some other appropriate order or direction be issued directing the non-applicant to execute the order passed by Shree Syad Hamidali. 2. On these allegations the petitioner prays that a writ of Mandamus or some other appropriate order or direction be issued directing the non-applicant to execute the order passed by Shree Syad Hamidali. 2. In the return filed against the petition the Secretary Local Self Government states that it is emphatically denied that the former Gwalior Government ejected him in breach of any agreement; that the petitioner had been given a lease for seven years in 1935 which lease expired on 30-6-1942; that after due notice on 14-5-42 possession was taken from him and the petitioner took back the deposit he had made in connection with the lease; that it is untrue that Shree Ramkrishna Dixit recommended to the Government to hand over 60 acres of the land to the petitioner after the termination of the lease of The Gwalior Dairy Ltd.; that there was no lease or an agreement of lease made between the petitioner and the opposite party; that it is emphatically denied that any Government orders were passed; that the Gwalior Dairy Ltd. claims a right to continue in possession firstly on the strength of the revenue law then in force in Madhya Bharat and secondly on the basis of an order passed by the ruler of the former Gwalior State in 1942; that the land is held by and is in the actual possession of the Gwalior Dairy Ltd.; 3. A copy of the lease given by the Gwalior Government has been produced by the Secretary Local Self Government. A perusal of this lease shows that the land in dispute was given on lease of seven years commencing from 1st July, 1935. There is also a copy of the notice given to the petitioner by the Sanitary Engineer Gwalior Government on record. That notice clearly states that as the lease expires on the 1st Day of July 1942 the petitioner is to hand over the possession of the plots to the Sanitary Engineer. Prom these two documents it is evident that the allegation of the petitioner that he was forcibly ejected from the land by the Gwalior Government is false. A copy of the award given by Shree Ramkrishna Dixit has also been filed by the non-petitioner All that the award states is as follows: - This does not amount to any recommendation that 60 acres of land be given to the petitioner. 4. A copy of the award given by Shree Ramkrishna Dixit has also been filed by the non-petitioner All that the award states is as follows: - This does not amount to any recommendation that 60 acres of land be given to the petitioner. 4. In - 'Mohammad Ibrahim v. High Commissioner for India in Pakisthan', Mis. Petn. No.46 of 1950 (Nag) Mangalmurti and Mudholkar JJ. held as follows:- "The power which the court exercises under Article 226 is discretionary and the court would certainly bear in mind the conduct of the applicant in exercising the discretion. The Court would refuse to exercise discretion in favour of an applicant where the application is wanting in bona fides." In - 'Zikar Yusuf v. Government of Madhya Pradesh', Petn. No.16 of 1950 (Nag) their Lordships of the Nagpur High Court observed as follows: - "Where an ex parte application has been made to a High Court under article 226(1) if the court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts but stated them in such a way as to mislead the court as to the true facts the court ought for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the court but one which should only be used in cases which bring conviction to the mind of the court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit and everything will be heard that can be urged to influence the view of the court when it reads affidavit and knows true facts. But if the result of this examination and hearing is to leave no doubt that the court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit and reject the application." As the facts alleged in the affidavit by the petitioner are false beyond doubt, this petition deserves to be rejected summarily. 5. 5. Apart from this a writ or an order or direction can be issued under article 226 only for the enforcement of fundamental rights or any other legal right. There is no allegation in the affidavit that any fundamental right has been infringed. As far as any other legal right is concerned it does not appear from the facts that any legal right has been violated. The non-petitioner has emphatically denied that any Government orders have been passed in favour of the petitioner. It appears from the reply of the non-petitioner that Shree Hamidali had proposed to give to the petitioner benefit of a fresh lease at a time when he was not aware of the plea of the Gwalior Dairy Ltd. Even conceding that Shree Hamidali did pass an order that a fresh lease be given to the petitioner, no right has accrued to the petitioner. It is at best a unilateral decision to enter into legal relationship. It is neither an agreement nor a lease. According to the allegation of the petitioner Shree Hamidali confirmed the recommendation of Shree Ramkrishna Dixit that land be given to the petitioner after the termination of the lease of the Gwalior Dairy Ltd. It is clear from the return filed by the non-petitioner that the land is still in possession of the Gwalior Dairy Ltd. Consequently the petitioner has no present right, if he has any, to the lease of the land concerned. In these circumstances as no legal right has been violated, this petition must be dismissed. 6. In the result we think that this petition has been misconceived and consequently it is dismissed. The petitioner should pay the costs to the non-petitioner which we fix at Rs.100/- 7. DIXIT, J. :- I have also come to the conclusion that this petition must be dismissed with the direction that the applicant should pay to the opponent Rs.100/- as costs of the petition. The applicant invokes the power of this Court under Article 226 to enforce an alleged order of the Government allotting certain lands on lease to the applicant. Learned Counsel for the petitioner failed to satisfy us that there was in existence any such order of the Government, or that if there was one, the Government was under a statutory duty or obligation to give the lands to the applicant and to give effect to its order. Learned Counsel for the petitioner failed to satisfy us that there was in existence any such order of the Government, or that if there was one, the Government was under a statutory duty or obligation to give the lands to the applicant and to give effect to its order. Prom the facts as revealed at the hearing of the petition, it appears that at one tame, a Minister of the Madhya-Bharat Government considered the question of giving some lands to the petitioner on lease. If the petitioner thinks that this consideration by the Minister concerned ultimately ended in a contract with him on the one part and the Government on the other for the grant of the lands, his remedy is obviously to resort to Civil Courts for the enforcement of the contract. An order in the nature of mandamus cannot be issued under Article 226 for the enforcement of an obligation arising under a contract. 8. In fact, I think the applicant has forfeited his right to invoke the power of the Court to issue the direction, he seeks, by failing to be candid in his statement of the facts. The applicant stated that in 1942, he was forcibly ejected from certain lands by the former Gwalior Government and that that action of the Government was contrary to the terms of the agreement. At the hearing, it was found that the applicant had not been forcibly ejected but that he was asked to hand over the possession of the land to the Gwalior Government on the expiry of the lease in 1942, and that accordingly after due notice, the applicant vacated the land and also took back the deposit he had made in connection with the lease of the land. The statement of the applicant that he was forcibly ejected, taken together with other inaccurate statements in his petition led this Court to issue a rule nisi thinking that the action of the Government appeared to be illegal. If the petitioner had correctly stated the material facts, he would have had considerable difficulty in the way of getting a rule nisi issued from this Court. If the petitioner had correctly stated the material facts, he would have had considerable difficulty in the way of getting a rule nisi issued from this Court. It has been authoritatively laid down in - 'Rex v. Kensington Income Tax Commissioners', (1917) 1 KB 486 that the rule of the Court requiring uberriema fides on the part of the applicant for an ex-parte injunction applies equally to the case of an application for a rule nisi for a writ of prohibition and that where there has been a suppression of material facts, the Court will refuse the writ without going into the merits of the case. This principle has been quoted with approval in - 'Zikar v. Govt. of Madhya-Pradesh', AIR 1951 Nag 16; - 'Asiatic Engineering Co. v. Achhru Ram', AIR 1951 All 746 (FB) and - 'Ratan Chandra v. Adhar Biswas', AIR 1952 Cal 72 . This petition must, therefore, fail on this ground also.