Subramania Iyer, J.@mdashThis is an appeal filed against the order passed by out learned brother Koshi J. on 29-9-1950 dismissing O. P. 39 of 1950 on the file of this Ct.
2. The said O. P. was filed for the issue of a writ of certiorari to bring up & quash the order passed by the Govt, on 6.5-1950 directing acquisition, for value, of a certain quantity of paddy under the provisions of the Travancore-Cochin Public Safety Measures Act V [5] of 1950 & the rules framed u/s 3 thereof & a consequent writ of mandamus directing the Govt. to release the said paddy to the petnr-applt.
3. The petr. applt had filed an earlier app ln. in this Ct. O. P. 21 of 1950, for a like relief in respect of an order passed by the Civil Supplies Comr. relating to the same paddy. This Ct. rejected that petn. on the ground that the petnr. is entitled to a remedy by way of an appeal to the Govt. The petnr. accordingly did appeal to Govt, but the order of the Govt. in appeal being adverse to him, he has now come up again to this Ct. & filed O. P. 39 of 1950.
4. On 9-9-1950, on which date O. P. 39 of 1950 was filed, the applt. filed another petn. C. M. P. 1356 of 1950, in this Ct. for an injunction restraining the Govt. & their officers from taking possession of the paddy in question. Notice was ordered upon this apply. on the same day & the matter was posted for hearing on the l2th. Notice was given to the Advocate-General on the same day, as seen from a memo filed in this case. It is stated on behalf of the applet. that notice was served on the Tahsildar at Alleppey the very same day, though at about 9 P. M. at night. On the 12th this Ct. passed the following order on C. M. P. 1856 of 1950:
The learned Govt. Pleader wanted a week to get down records from the Govt, to argue the main petn. This petn. is allowed. The counter-petnrs. are restrained from taking possession of the paddy, which they have not already taken possession of, for a period of 10 days.
On the 19th September an affidavit was filed on behalf of the State to the effect that the paddy in question was actually taken possession of on the 10th instant & distributed to the public in ignorance of the apply. having approached this Ct. & filed petns. as aforesaid. In the counter-affidavit filed on behalf of the applt. the next day, this statement is sought to be contradicted, but there is no definite averment that the paddy has not been distributed as sworn to in the affidavit. On 22nd September the matter came up for hearing & was ultimately disposed of on 29th September by the order which is appealed against.5. The paddy in question was stocked in the granary belonging to the wife & children of Puthiyillath Damodaran Namboodiri. The wife & children belong to a Nair Tarwad called Nemmalasseri HOUSE. Damodaran Namboodiri''s wife is called Kunhukutty Parvathi Amma. He has a son by her called Neelakanta Ponicker Narayana Panicker. who is stated to be a graduate.
6. In connection with an enquiry regarding this stock of paddy, the authorities appear to have gone to the place in April 1950 & measured 375 paras & sealed the granary containing the balance. On the 1st of May, statements were taken from Damodaran Namboodiri, his wife Parvathi Amma & their son, the said Narayana Panicker, which revealed that the paddy in question belonged to one Moolecheril Ouseph Chacko to whom the granary had been let for rent. Damodaran Namboodiri, the father is stated to be in management of the affairs of the tarwad; Narayana Panicker is not a permanent resident of the house, but is more often away from the place on business. The attestation made by Narayana Panicker to the mahazar prepared in April when the authorities, came to the place on the first occasion indicating that the stock of paddy belongs to the applt. was in ignorance of the real state of affairs which he came to know from his father afterwards as he was not at home at the time.
7. It is the order passed by the Comr. of Civil Supplies upon the aforesaid & other material that led to the first O. P. 21 of 1950 already mentioned.
8. The applt.''s real grievance would appear to be that he would be unable to cultivate his land to the extent of 70 acres for want of seed paddy which was in the stock of paddy in question & that he is not even given the price of the stock of paddy acquired by the State.
9. It is stated that Damodaran Namboodiri who mentioned in his statement dated 1st May that Ouseph Chacko is the owner of the paddy has gone back upon that statement subsequently & accepted the title of the apply. to the paddy, the statement of the 1st of May being sought to be got over on the alleged ground of undue influence exercised by certain subordinate officers of Govt. It also appears that subsequently Ouseph Chacko himself filed an affidavit disowning title to the stock of paddy & accepting the applt.''s title there to.
10. Sri Sebastian, the learned Counsel for the applt. raised various questions in the course of the argument. He contended that Act v [5] of 1950 under which the State took action in acquiring the paddy is ultra vires, the orders of Govt, puporting to act under the said statute are also ultra vires & that the applt. is entitled to have his fundamental right of property enforced by appropriate writs issued by this Ct.
11. The subject-matter of the relief sought viz., the stock of paddy having now ceased to exist by having been distributed to the public for Consumption, there is no need to consider the various questions raised by the apply as a decision thereupon would not lead to the grant of any effective relief in the absence of the subject-matter. The learned Counsel for the apply did not attribute any bad faith to the several Tahsildars or their superiors who had occasion to concern themselves in this matter & fairly agreed that they may be taken to have acted bona fide under the circumstances dies closed in the case.
12. Mr. Sankara Pillai, the learned Public Prosecutor appearing on behalf of the State mentioned that in view of the affidavit filed by the said Ouseph Chacko, disowning the title to the stock of paddy, there would not be difficulty in the apply. Getting the price of the stock of paddy acquired by Govt. & distributed to the public He also stated that the Got, have made arrangements to supply cultivators with the seed paddy required for cultivation & that the pantry. Would, on apply, be supplied with the required quantity of seed paddy. Under the circumstances, the order appealed against has to be confirmed though not exactly for the reasons mentioned therein.
13. We cannot help remarking that notice having been served upon the Advocate-General as also on the Tahsildar on the day on which the apply for injunction was filed & notice ordered, the acquisition & distribution of paddy the next day when the matter stood posted for hearing in this Ct. two days later, would lead to a strong sushi coin that there was an attempt to circumvent the proceedings in Ct. If a party, knowing that his opponent has either approached the Ct. or is taking steps to approach it for a certain specific relief, does anything to make the grant of the relief, by way of prevention, ineffective, the Ct. has always jurisdiction to pass orders even in ordinary cases, in a mandatory form & to direct restoration of the status quo ante in the manner & to the extent possible. It will be an a fortiori case when the relief claimed is for a grant of any of the writs or directions contemplated by Article 226, Const. Ind, But however strong the suspicion may be, it can not take the place of evidence & we have to proceed on the strength. of the affidavit to the effect that the acquisition & distribution were made in ignorance of the proceedings in Ct. which may perhaps be true as the mahazar prepared at the time of acquisition shows that the acquisition was made pursuant to an order issued by the Comr. of Civil Supplies on 7-9-1950, that is, two days prior to the applt. petnr. filing his petn. in this Ct. We shall content ourselves with observing that the Govt. should not countenance dubious tactics being pursued by their departments or servants.
14. The appeal is dismissed. In the circumstances, we make no order as to costs.
Kunhi Raman, C.J.
15. I concur.
