1. In the suit out of which F.A No. 33 of 1949 arises the plaintiff, namely. Raja Bahadur Kamakhya Narain Singh, asked for a declaration that the provisions of the Bihar Private Forest Act (Bihar Act 3 of 1946) are illegal and ‘ultra vires’. The plaintiff alleged that in exercise of the powers conferred by that Act the State of Bihar had issued a notification expressing their intention of constituting the notified forests belonging to the plaintiff as a private forest under the said Bihar Act 3 of 1946 and had taken over the management of the notified forests.

2. The case of the plaintiff was that all the provisions of Bihar Act 3 of 1946 and the notifications issued by the State Government were illegal and ‘ultra vires’ of Section 299 of the Government of India Act, 1935. The plaintiff claimed two main reliefs: (1) that the Court may grant a declaration that Bihar Act 3 of 1946 was ‘ultra vires’, and (2) that the Court may grant an injunction restraining the State Government its servants and Agents from taking over the management of the notified forests.

3. The suit was contested by the State of Bihar and on 30-9-1948, the Additional Subordinate Judge of Hazaribagh came to the conclusion that the provisions of the impugned Act, namely, Bihar Act 3 of 1946, were ‘intra vires’ and legal and the plaintiff was not entitled to the declaration or injunction sought for. The plaintiff has presented F.A No. 33 of 1949 against the decision of the learned Subordinate Judge dismissing the suit. Bihar Act 3 of 1946 was a Governor's Act enacted under the provisions of Section 93 of the Government of India Act, 1935. This Act was re-enacted by the Bihar Legislature in 1948 as Bihar Act 9 of 1948. The plaintiff again brought a title suit (T.S No. 39 of 1949) in the Court of the Subordinate Judge of Hazaribagh praying for a declaration that Bihar Act 9 of 1948 was ‘ultra vires’ of the Bihar Legislature. The plaintiff also asked for an injunction directing the Government of Bihar to restore the management of the notified forests to the plaintiff.

4. It was alleged on behalf of the plaintiff that there was an agreement between the State Government and the plaintiff under Section 38 of the Indian Forest; Act. By this agreement the State Government had taken over the management of the notified forests under Bihar Act 9 of 1948 and so the plaintiff claimed cancellation of the agreement as ‘mala fide’ and illegal and asked for a declaration to that effect. This suit was transferred to the High Court by an order made under Article 228 of the Constitution, The defendant has filed a written statement contesting the plaintiff's claim.

5. The main issues involved in the suit are: (1) whether the provisions of Bihar Act 9 of 1948 are invalid and unconstitutional; (2) whether the plaintiff is entitled to a declaration to that effect; (3) whether the cancellation of the agreement between the plaintiff and the defendant under Section 38 of the Indian Forest Act was illegal and mala fide and whether the plaintiff was entitled to be restored to the management of the forest; and (4) whether Bihar Act 9 of 1948 violated the guarantee of the freedom of property contained in Article 19(1)(f) of the Constitution.

6. With the consent of the parties the title suit and the first appeal have been heard together. When the arguments were taken up the learned Government Advocate raised a preliminary point that the estate of the plaintiff has vested in the State of Bihar under the provisions of the Bihar Land Reforms Act, 1950, and so the plaintiff is not competent to maintain the title suit or to prosecute the first appeal. An additional issue was, therefore, framed in the title suit to the following effect:

“Is it competent for the plaintiff to ask for the reliefs claimed in the plaint in view of the fact that the estate of the plaintiff has vested in the State of Bihar under the provisions of the Bihar Land Reforms Act (Bihar Act 30 of 1950)?”

7. In support of his submission the learned Government Advocate produced the notification of the State Government dated 31-10-1951 made in exercise of the powers under Section 3(1) of the Bihar Land Reforms Act. The other notification dated 26-1-1955 has also been exhibited in this connection. These notifications are Exs. A and Al. It is not disputed on behalf of the plaintiff that his estate has been taken over by the State Government under Section 3 of the Bihar Land Reforms Act and that title to the estate has vested in the State Government.

8. The argument addressed by the learned Government Advocate is that in view of these notifications it is clear that the plaintiff has no substantial interest in the disputed forest and so the Court cannot grant him a declaration that the provisions of Bihar Act 9 of 1948 are constitutionally invalid. It was also submitted by the learned Government Advocate that the plaintiff cannot be granted an injunction restraining the State of Bihar from taking possession of the forest in question. In this context it is important to remember two well-known propositions which are highly relevant.

9. The first proposition is that an appellate Court is entitled to take into consideration against the appellant new legislation which was passed after the decision under appeal was given and by which the appellant's right had been taken away. That was the view taken by the Federal Court in Lachmeswar Prasad v. Keshwar Lal, 1940 FCR 84 : (AIR 1941 FC 5) (A). This proposition is not controverted by Mr. Shambhu Prasad Singh on behalf of the plaintiff.

10. In Lachmeswar Sukul's case (A), the Chief Justice of India cited with approval the following passage from the judgment of the Supreme Court of the United States of America in Patterson v. State of Alabama, (1934) 294 US 600, at p. 607 (B):

“We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered”.

11. The other well known proposition is that a Court, will not decide the constitutional validity of any law at the instance of parties whose material interests are not adversely affected by the enforcement of the law; in other words the plaintiff must show that he has substantial interest in the subject matter of the suit before he could be granted a declaration that the impugned Act is unconstitutional. In this connection we may refer to the following passage from Willoughby on the Constitution of the United States ‘at page 19’:

“The general rule is that Courts will not pass upon the constitutionality of laws or other official acts except in suit duly brought before them, and at the instance of parties whose material interests will be, or have been, adversely affected by the enforcement of the laws or the recognition of the validity of the executive or judicial acts which are complained of. Thus it has been held that as to acts claimed to be unconstitutional as in denial of the equal protection of the laws only those persons may raise the point who came within the class or classes of persons discriminated against.”

12. Applying these principles to the present case we are satisfied that the preliminary objection raised by the learned Government Advocate is well-founded and that both the title suit and the first appeal should be dismissed for the reason that the plaintiff has no substantial interest in the subject matter of the litigation. We refrain from expressing any opinion on the main issues, namely, whether the provisions of Bihar Act 9 of 1948 are ‘ultra vires’ and illegal, and also whether there was a breach of the agreement made between the plaintiff and the defendant under the provisions of the Indian Forest Act (Act 16 of 1927).

13. We are satisfied that the plaintiff has lost his title to the estate including the forest area because of the notification of the State Government issued under Section 3 of the Bihar Land Reforms Act. 1950, vesting the title of the estate in the State Government. It is not disputed on behalf of the plaintiff that notifications were issued by the State of Bihar under the Bihar Land Reforms Act and the title to the estate of the plaintiff has vested in the State Government.

14. It was, however, submitted by Mr. Shambhu Prasad Singh that the plaintiff has sufficient interest to maintain the suit and also the first appeal because the plaintiff has a right to compensation, money payable for the estate. Reference was made in this connection to Section 22(2)(b)(vii) of the Bihar Land. Reforms Act which is to the following effect:

“Gross income from forests calculated on the basis of the average gross annual income of twenty-five agricultural years preceding the agricultural year in which the date of vesting falls, which in the opinion of a Forest Officer, not below the rank of a Divisional Forest Officer, to be appointed in this behalf by the State Government, the forests would have yielded, if they had been placed during the said period of twenty-five years under the management of the State Government under any law for the time being in force relating to forests.”

15. It was submitted that the plaintiff was still interested to get a declaration that Bihar Act 9 of 1943 was ‘ultra vires’ because the computation of the gross income from the forest would be affected by such a declaration. It was contended that if Bihar Act 9 of 1948 was declared to be ‘ultra vires’ the plaintiff would be entitled to compensation computed on the basis of average annual of twenty-five agricultural years preceding the agricultural year in which the date of vesting falls.

16. We do not think that there is any substance in this argument. Even assuming in favour of the plaintiff that the provisions of Bihar Act 9 of 1948 are ‘ultra vires’, nevertheless the plaintiff would not be entitled to compensation on the basis of his account kept of the gross annual income of the preceding twenty-five agricultural years. It is obvious that the forests could have been placed under the management of the State Government either under the provisions of the Bihar Private Forest Act (Bihar Act 9 of 1948) or under the provisions of Sections 36 and 38 of the Indian Forest Act.

17. It is not the case of the plaintiff that the provisions of the Indian Forest Act are ‘ultra vires’. Therefore the computation under Section 22(2)(b)(vii) could be made by the compensation officer on the basis of the gross income if the forests had been placed during the said period of twenty-five years under the management of the State Government under the provisions of the Indian Forest Act. We do not, therefore, consider that there is any point in the argument addressed on behalf of the plaintiff.

18. We are satisfied on the contrary that the plaintiff has not sufficient interest to prosecute the title suit or the first appeal. Nevertheless it was argued on behalf of the plaintiff that the plaintiff would be entitled to award of damages for breach of the agreement between the plaint ff and the State Government under the Indian Forest Act. It was pointed out by the learned counsel that such an allegation was made in the body of the plaint.

19. But the difficulty is that there is no prayer made in the relief portion for the grant of any damages and no court-fee has been paid by the plaintiff for any such relief. It was argued on behalf of the plaintiff that this Court may grant such relief even if not asked for. In support of this argument reference was made to Abdul Vakil v. Secretary of State, AIR 1943 Oudh 368 (C). We do not think that the ratio of this decision has any application to the present case, for the plaintiff in that case had asked for a declaration that he was wrongfully dismissed from Government service but he also asked for damages for wrongful dismissal to the extent of Rs. 24,220.

20. It was held by the High Court that the plaintiff was entitled to a decree for arrears of salary though such a relief was not specially asked for in the plaint. It is obvious that the facts of the present case are materially different and the argument of the learned counsel on this aspect of the case cannot be accepted as correct. It was submitted on behalf of the plaintiff that the amendment of the plaint could have been granted so as to include the claim of damages.

21. But the difficulty is that such an amendment could not be allowed at this stage because of the bar of limitation under Article 109, Limitation Act. The suit was filed in 1949 and it would be against legal principle to allow an amendment of this kind at this stage after a lapse of three years in face of the fact that such a claim would be barred by limitation.

22. For these reasons we are definitely of the opinion that the plaintiff has no sufficient legal interest to maintain the title suit or to prosecute the first appeal. It follows that the first appeal should be dismissed and the title suit also should be dismissed.

23. On the question of the constitutional validity of Bihar Act 9 of 1948 counsel for the plaintiff that Section 2, 99 of the Government of India Act, 1935, had been contravened as there was no provision for compensation. It was also submitted the Act violates Articles 14 and 19(1)(f) of the Constitution. It was also contended that there was no legislative competence and the Bihar Legislature had no authority to enact this legislation and the subject matter of the legislation was not covered by any item of the Provincial list. Counsel also submitted that the definition of the expression “Forest” in Section 3(2) of the Bihar Act 9 of 1948 was too wide.

24. We do not propose to consider the merit of these arguments as we do not wish to express any opinion on the constitutional validity of Bihar Act 9 of 1948 which is the main issue in the first appeal and also in the title suit. It was submitted by Mr. Shambhu Prasad Singh that the decree of the lower Court in T.S No. 26 of 1947 should be modified at least with regard to the amount of costs awarded against the plaintiff.

25. Counsel also submitted that in the first appeal there should be no order for costs because the pontiff failed on account of the subsequent events, namely the passing of the Bihar Land Reforms Act 1950 and the issue of the notifications by the State Government under S. 3 of that Act on 31-10-1951 and 26-1-1955. In our opinion there is substance in the contention of the learned counsel on this point.

26. In the circumstances of this case we order that T.S No. 1 of 1950 should be dismissed and there will be no order for costs. In F.A No. 33 of 1949 we consider that the decree of the lower Court should be modified with regard to costs and that T.S No. 26 of 1947 should be dismissed without costs.

27. Subject to this modification in the decree of the lower Court we dismiss F.A No. 33 of 1949. There will be no order as to costs of this first appeal in the High Court.

K.S.B

28. Decree modified.