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1997 DIGILAW 697 (ALL)

SUBORDINATE AGRICULTURAL SERVICE ASSOCIATION UTTAR PRADESH v. STATE OF U P

1997-06-06

R.H.ZAIDI

body1997
R. H. ZAIDI, J. Heard learned Addi tional Advocate General and learned coun sel for the petitioner on the applications dated 13-1-97 & 7-5-97 filed on behalf of he respondents. By application dated 7-5-97, it has been prayed as under: "it is, therefore, most respectfully prayed that the delay showing cause be condoned or in the alternative the time for showing cause be extended and the counter affidavit already filed with the application dated 13-1-1997 be treated as cause shown and the Honble court may be pleased to decide the case on merit. " 2. The brief facts, which are relevant for the disposal of the aforesaid applica tions are that the present writ petition was filed on 22-3-1993 mainly for the following relief: "it is, therefore, most respectfully prayed that this Honble Court may graciously be pleased to allow this petition and issue: (i) a writ, order or direction including a writ in the nature of mandamus commanding the respondents to pay salary to the petitioner in the pay-scale as admittedly recommended by the Director of Agriculture, U. P Lucknow and as agreed to between the petitioners the State Govt. vide its orders dated 9-10-88 and 7-11-88. "; 3. On 22-3-93, the following order was passed by this Court: "learned standing counsel is directed to file a counter affidavit within a period of four weeks. List this writ petition for admission on 23-3-93. " 4. Within the time granted by this Court no counter affidavit was filed. Peti tion again came up for hearing before the Court on 27- 4-93. After hearing the learned counsel for the parties following order was passed: "27-4-93 Hon. M. Katju J. Despite order of this court dated 22-2-93, no counter affidavit has been filed. In the cir cumstances, I issue an interim mandamus direct ing the respondents to pay salary to the petitioner in the pay-scale recommended by the Director of Agriculture, U. P. Lucknow or show cause within three weeks. List on 8- 5-1993. " 5. In spite of the aforesaid order being passed by this court, neither the salary was paid to the petitioner, nor any cause was shown by the respondents by filing counter affidavit. 6. Again the matter came up before this Court on 9-8-95. After hearing the learned counsel for the parties, this court passed the following order: "9-8-1995-Hon. Binod Kumar Roy,/- Dr. 6. Again the matter came up before this Court on 9-8-95. After hearing the learned counsel for the parties, this court passed the following order: "9-8-1995-Hon. Binod Kumar Roy,/- Dr. Padia, learned counsel appearing on behalf of the petitioner contended that repeatedly liberties were granted to the respondents to file a counter affidavit but the respondents have not cared to file the same till to date. Learned counsel further highlighted that even an interim mandamus was issued commanding the respondents to pay salary of the petitioner in accordance with law, as re quested by them, but even that direction has been grossly violated by them. Dr. Padia in the aforementioned back drop submitted that it is a fit case which should be allowed with costs. Sri Sahai, learned standing counsel on the other hand, contended that one more opportunity be granted to file a counter affidavit or in any view of the matter some time may be granted so that the respondents could address this court on merit of this writ application. As sufficient opportunity was already granted earlier to the respondents to file their counter affidavit, I have no hesitation in overrul ing the first request of Sri Sahai. In so far as the second request of Sri Sahai, I adjourn this case to 21st August, 1995 clarifying that this court intends to dispose of this writ application on the merit itself. " 7. The aforesaid order rejecting the prayer made on behalf of the respondents by the learned standing counsel for grant of further time to file counter affidavit has become final. However, apparently taking a very lenient view in the matter, it was on 9-11-95, following order was passed by this court: "9-11-95-Hon. O. A. Rahim, J. Learned standing counsel prays for and is granted three weeks time and no more for filing a counter affidavit. Let it be listed on 4-12-95 peremptorily. Respondent No. 2 is directed to show cause why contempt of court proceedings shall not be started against him. A reply should come by the date fixed. A copy of this order may be issued to the learned counsel for the parties on payment of usual charges within three days. " 8. Let it be listed on 4-12-95 peremptorily. Respondent No. 2 is directed to show cause why contempt of court proceedings shall not be started against him. A reply should come by the date fixed. A copy of this order may be issued to the learned counsel for the parties on payment of usual charges within three days. " 8. Feeling aggrieved by the order dated 9-11-95, Special Appeal No. 959 of 1995- Subordinate Agricultural Service Associa tion, U. P. & another v. State of U. P. & others was filed by the petitioners. However, the said special appeal was dismissed by a Division Bench of this Court and following order was passed on 11-12-1995: "having regard to the contents of the order dated 9-11 -95 passed by the learned Single Judges in writ petition No. 5943 of 1993 granting three weeks time finally for filing a counter affidavit to the respondents, we are not inclined to admit this special appeal. It is, therefore, dismissed. No costs. " Sd/-A. L. Rao, C. J. Sd/-R. A. Sharma, J. " 9. Even though three weeks was granted by the court vide order dated 9-11-95, the case was directed to be listed peremptorily and notice to initiate the con tempt proceedings was issued but no heed was paid by the respondents to the orders passed by this court, which clearly shows in what esteem the respondents hold this court and what respect they pay to the order passed by it. 10. For more than one year after the order dated 9-11-95 was passed, the matter again came up for consideration before this court on 30-11-96 and this Court was pleased to pass the following order: "30-11-1996-Hon. R. A. Sharma, J. An interim mandamus was issued by this court on 27-3-1993 directing the respondents to pay salary to the petitioner in the pay-scale recom mended by the Director of Agriculture U. P. Luck-now or show cause within three weeks. Neither payment of salary was made in terms of said order nor was the cause shown. On 9-8-1995 this Court passed a detailed order, but even then nothing was done. Ultimately on 9-11-1995 this Court passed order directing the respondent No. 2 viz. Director of Agriculture. U. P. Lucknow to show cause why contempt of court proceeding be not started again; him. There is no counter affidavit or ex-plana. On 9-8-1995 this Court passed a detailed order, but even then nothing was done. Ultimately on 9-11-1995 this Court passed order directing the respondent No. 2 viz. Director of Agriculture. U. P. Lucknow to show cause why contempt of court proceeding be not started again; him. There is no counter affidavit or ex-plana. ion submitted by the Director of Agricul ture I. P. Lucknow pursuant to the said order. In view of the facts and circumstances of the case the Director of Agriculture, U. P. Lucknow is directed to appear before this Court on 16-12-1996 and explain as to why the orders issued by this courfhave not been complied with. The learned Standing Counsel shall serve copy of this order on the Director of Agriculture U. P. Lucknow. The petitioner will also serve the copy of this order on him within a week from today. List this case before appropriate court on 16-12-1996. It shall not be treated as part-heard or tied up with me. " 11. In compliance of the aforesaid order, although the Director of Agriculture, Sri R. K. S. Chauhan appeared before this court on 16-12-96, but no explanation was submitted by him as to why the orders of this court were not complied with instead 24 hours time was prayed for which was granted by this court and the case was directed to be put up on 17-12-1996. The matter was thereafter taken on 19-12- 96. After hearing the learned Counsel for the parties, following order was passed by this Court on 19-12- 19%: "19-12-1996-Honbler. H. Zaidi, J. Today, as the case was called out Mr. R. K. S. Chauhan, the Director of Agriculture, U. P. Luck-now, in compliance of the orders passed by this Court, appeared, personally. On his behalf Mr. Abid Ali, Advocate, has also filed Vakalatnama, the same be taken on record, Learned Addl. Ad vocate General has also appeared on behalf of the respondents. Heard learned counsel for the parties. Learned Addl. Advocate General stated that the matter giving arise to the present proceeding is engaging due attention of the com petent authority and he is hopeful that the order passed by this court in the presents case shall be complied with. He prays for reasonable time to seek instructions from the respondents. As prayed two weeks time is granted to the learned Addl. Advocate General to seek instruction from the respondents. He prays for reasonable time to seek instructions from the respondents. As prayed two weeks time is granted to the learned Addl. Advocate General to seek instruction from the respondents. List this case on 13-11-1997 as part heard. On the said date if the orders dated 27-3-1993, Mr. Chauhan shall appear before this court per sonally. " 12. The assurance given by the then learned Addl. Advocate General on 19-12-1996 and the hope expressed by him that the orders passed by this Court shall be complied with, was neither fulfilled nor respected. On the other hand, it was on 13-1-97, that a counter affidavit along with the application to vacate the stay order was placed on UK- record without leave of the court by the respondents. Thereafter, on the request made by the learned counsel for the respondents, several adjournments were granted and ultimately on. 20-1-97 follow ing order was passed: "20-1-1997-Hon. R. H. Zaidi, J. Heard learned counsel of the petitioner at some length. The matter be listed on Wednesday-next. On the said date, it will not be necessary for the Director of Agriculture to appear before this court. However, it is made clear that if his presence is required, he will ensure his presence on the date as and when he is required to be present before the court. 13. It is apparent from the order sheet that thereafter the case was either not taken up for hearing or adjourned on the request made by the learned counsel for the respon dents. 14. Ultimately on 7-5-1997, the above noted application was filed, which was also supported by an affidavit in which the above noted facts were admitted. In paragraph 3 of the said affidavit, it was stated as under: "that on 13-1-1997 counter affidavit along with an application dated 13-1-1997 was filed praying that the Honble Court be pleased to vacate that interim orders passed by this Honble Court. Due to inadvertence it was not further prayed in the application that the delay in showing cause be condoned and the counter affidavit be treated as cause shown. The error is regretted. " 15. The matter was head thereafter on several dates and ultimately after the argu ments were concluded order on the above noted applications was reserved. Due to inadvertence it was not further prayed in the application that the delay in showing cause be condoned and the counter affidavit be treated as cause shown. The error is regretted. " 15. The matter was head thereafter on several dates and ultimately after the argu ments were concluded order on the above noted applications was reserved. It may also be noted that the Additional Advocate General has also filed written argument on behalf of the said respondents, which was directed to be placed on the record. Learned counsel appearing for petitioner has also filed written arguments thereafter. 16. Learned Additional Advocate General has vehemently urged that the abovenoted application filed on behalf of the respondents was legally maintainable and was liable to be allowed and the delay in filing the counter affidavit was liable to be condoned and the writ petition was liable to be decided on merits. 17. On the other hand, learned counsel appearing for petitioners submitted that the application dated 7- 5-97 filed on behalf of was legally not main able and the same was liable to be could inasmuch as the orders passed by rejecting the prayer of the respondent, for graft t of further lime have become final. Said orders operate res judicator and the binding upon the parties. It was further submitted that the respondents are guilty of violation of the order passed by this court, they, therefore, do not deserve any leniency in the matter as they have got no respect for the orders passed by this court. 18. I have considered the rival submis sions made by the learned counsel for the parties and also perused the record. 19. The questions, which call for con sideration, are as to whether the appl ication dated 7-5-97 filed on behalf of the respon dents was legally maintainable and as to whether at this stage this court should con done the delay in filing the counter af fidavit. 20. It is apparent from the facts stated above that after the writ petition was filed, respondents were afforded several oppor tunities to file counter affidavit; but the counter affidavit was not filed by them from 22-2-1993 till 31-1-1997. 20. It is apparent from the facts stated above that after the writ petition was filed, respondents were afforded several oppor tunities to file counter affidavit; but the counter affidavit was not filed by them from 22-2-1993 till 31-1-1997. It is also evident that the direction issued by this court to comply with the orders, were deliberately not obeyed in spite of the fact that this court refused to grant any further time vide order 9-8- 95 and vide order dated 9-11-95 also issued a notice to the respondent No. 2 to show cause why the contempt proceeding be not initiated by appearing personally. It is also evident that an assurance given by the Additional Advocate General and the hope expressed by him that the order passed by this court shall be complied with, were not respected and honoured by the respon dents. 21. It may be noted that the order dated 9-8-95 rejecting the prayer of the respon dents to grant further time to file counter affidavit has become final, although the respondents did not deserve any leniency under the facts and circumstances of the present case but this court again on 9-11-95 was pleased to give them one more oppor tunity and to grant three weeks further time by means of stop order and simultaneously issued the notice to initiate the contempt proceedings suo moto. The order dated 9-11- 95 was upheld by a Division Bench of this court, which has become final. Even then no respect to the orders passed by this court was at all shown and even the counter-af fidavit was not filed by the respondents. 22. It is well settled in law that the principle of resjudicata applies by stages in the same proceeding. In Satyadhayan & others v. Smt. Deorajin Debi & another, AIR 1960 SC 941 , it was ruled by the apex court of the country as under: "the principle of res judicata applies also between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. " 23. " 23. Similar view has been taken by the apex court in the following cases : (i) Phool Chand Sharma & others v. Chandra Shankerpathak, AIR 1964 SC 782 . (ii) Dewajiv. Ganpatlal, AIR 1969 SC 560 . (iii) L. R. Ganpati Thevar (Dead) by his Legal Representatives v. Nayeen the swaraswari Devasthanam, AIR 1969 SC 764 . (iv) United Provinces Electric Supply Ltd. V. T. N. Chatterji & other, MR 1972 SC 1201. (v) Y. P. Patilv. Y. L. Patil, AIR 1977 SC392. 24. In view of the aforesaid decisions, -the prayer for grant further time to file counter affidavit, which was after due con sideration of the facts and circumstances of the present case and after hearing the learned counsel for the parties, having al ready been rejected by this court vide order, dated 9-8-95, which has become final, can not be accepted at this stage. Learned Addl. Advocate-General in support of his argu ments of condonation of delay and grant of further time, has referred to and relied upon the following decisions: (i) Gobardhan v. Barsati, AIR 1972 All 246 (ii)Jagdhyanv. Baburam, Alr 1983 SC57 (iii) State of Haryana v. Chandra Mani & others, 1996 (2) JCLR 235 (SC ). (iv) The Special Tahsildar, Kerala v. K. V. Ayisuma, Since reported in 1997 (1) JCLR 63 (SC ). 25. Learned Addl. Advocate General submitted that this court has got ample power to extend the time even after expiry of time originally fixed irrespective of whether the application for extension of time is made before or after the expiry of that time. In Gobardhan Singhs case (supra), the scope of section 148, C. P. C. came to be considered before a Full Bench of this Court. It was ruled that a court possesses the jurisdiction under Sec. 148, C. P. C. to en large the time and the application merely invokes that jurisdiction. 26. Similarly in Jagdhyan s case (supra) it was ruled that where a decree-holder in a pre-emption suit, deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by and 25 paise too were deposited but beyond time. 26. Similarly in Jagdhyan s case (supra) it was ruled that where a decree-holder in a pre-emption suit, deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by and 25 paise too were deposited but beyond time. On the fact of the case, it was ruled that it was pre eminently a case in which the first appellate executing court ought to have exercised its discretionary powers under Sec. 148, C. P. C. and should have accepted the delayed deposit of 25 paise as was done by the original executing court. 27. Various High Courts in the country have consistently taken the view that the law of limitation operates equally for or against a private individual as also a Govt. no spe cial indigenous can be shown to the Govt. which is similar circumstances is not be shown to a individual suiter. There is no question of construing the expression suffi cient cause liberally because the party in default is the Govt. nor the matter of delay can be dismissed light heartedly because the party in default is a Government. The Government has also to be regarded as an ordinary litigant and whatever is not con sidered as sufficient ground for a private person cannot be considered sufficient cause for the Government unless the Statute itself makes any distinction. 28. In Union of India v. Ram Charan, AIR 1964 SC 215 , it was ruled by the Supreme Court that there is no question of construing the expression sufficient cause liberally because the party in default is the Govt. 29. In State of Haryanas case (supra) it was ruled as under by the Supreme Court: "it is axiomatic that decisions are taken by officers/agencies proverbial at slow pace and en cumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay-intentional or otherwise-is a routine. Considerable delay of procedural red tape in the process of their making decisions a common feature. Therefore certain amount of latitude is not impermissible. " Similar view was expressed in the Spe cial Tahsildars case (supra) by the Supreme Court. 30. In the aforesaid two cases, the Supreme Court was dealing with the scope of provision of Sec. 5 of the Limitation Act. Therefore certain amount of latitude is not impermissible. " Similar view was expressed in the Spe cial Tahsildars case (supra) by the Supreme Court. 30. In the aforesaid two cases, the Supreme Court was dealing with the scope of provision of Sec. 5 of the Limitation Act. Section 5 applies to the cases where period of limitation is prescribed by Statute. It is well-settled in law that if no period is prescribed by the Statute, there will be no question of extending time, attracting the provision of Sec. 5 of the Limitation Act. A reference in this regard may be made to the decision of the Supreme Court in: Purshottam Lal v. Diwan Chamanlal,. AIR 1961sc137; and Smt. Shushile Devi v. Rama Nandan Pd. AIR 1976 SC 177 . 31. Therefore, in the present case, there was no question of condonation of delay with the help of Sec. 5 of Limitation Act, inasmuch as no time was prescribed by any statute for filing a counter affidavit. 32. There is no quarrel with the proposition that this Court has got the power to extend the time even after expiry of the time granted to the petitioner for taking steps (for filing affidavit ). Perhaps it was the aforesaid proposition in mind that even after more than two years and even after prayer for grant further time was already rejected, one more opportunity was granted by this court vide order, dated 9- 11 -95 to file counter affidavit; but the respondents even then did not take care to file counter af fidavit. More than required opportunities were given to the respondents to file the counter affidavit and to comply with the orders passed by this Court when the orders were not complied with and even the counter affidavit it was not filed, the Court was constrained to issue notice to initiate the contempt proceedings against erring of ficials suo moto and also to direct the respondent No. 2 to appear personally. Even then no head was paid, nor any respect was shown to the orders passed by this court. This shows the tenacity of the respondents to disobey the orders passed by this court. The order passed by this Court and other court are meant to be obeyed not only by the private individuals, by the Govt. Even then no head was paid, nor any respect was shown to the orders passed by this court. This shows the tenacity of the respondents to disobey the orders passed by this court. The order passed by this Court and other court are meant to be obeyed not only by the private individuals, by the Govt. Central or State and by the officers of authorities sub ordinate to them as no body is above law and can be permitted to flout the orders. 33. It may also be noted that in the present case the delay, in not showing the cause for non-compliance of the orders passed by this court and in filing the counter affidavit has not been explained at all in accordance with law by the respondents. 34. Looking to the conduct of the respondents and the fact that grant of prayer as made by them for extension of time will not only result in modification of, but will nullify, the orders dated 9-8-95, 9-11-95 and 11-12-95, noted above. I decline to interfere in the matter, at this stage and to exercise the inherent power, if any. 35. The other cases referred to and relied upon by the learned Additional Ad vocate General in his oral and written argu ments are not relevant for the purposes of disposal of the present application. They are either on the merit of the case or regarding the contempt matter pending disposal before this court. Therefore, I do not propose to deal with those cases at this stage, as the writ petition and contempt matter heard and decided on merits. 36. In view of the aforesaid discussion, it is held that the application dated 7-5-1997 is legally not maintainable and at this stage the said application cannot be allowed. 37. Application dated 7-5-1997 fails and is dismissed. The application for exten sion of time, condonation of delay and for accepting the counter affidavit, having been dismissed, the application dated 13-1-97 for vacation of the interim order dated 27-4-93 also fails and is dismissed. No order as to costs. 38. List this case in the second week of July, 1997 for hearing and further orders. Applications dismissed. .