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2002 DIGILAW 578 (GUJ)

RENUMAL VERSHIBHAI BIJANI v. BANTWA MUNICIPAL BOROUGH

2002-07-30

D.S.SINHA, J.M.PANCHAL

body2002
D. S. SINHA, J. ( 1 ) HEARD Mr. Chirag Kothari for Mr. Harin P. Raval, learned counsel appearing for the applicants, and Mr. M. N. Devnani, learned counsel representing the alleged contemners. ( 2 ) SPECIAL Civil Application Nos. 6485, 6486 and 7682 of 1997 filed by the applicants were allowed by this Court, vide its Judgment and Order dated 03-12-1997, and while allowing the applications, this Court gave the following directions:-"respondent No. 3 Bantwa Municipal Borough is directed to pay to the petitioners herein all the arrears of salary within a period of six months from today. In the event, respondent No. 3 fails to pay the arrears of salary to the petitioners within the period of six months as directed hereinabove, it shall pay the interest on the aforesaid amount at the rate of 12 percent per annum from the date of this order till the date of payment. " ( 3 ) THE applicants contend that the alleged contemners have failed to comply with the directions given by this Court, quoted above, and urge this Court to initiate proceedings for contempt under the provisions of the Contempt of Courts Act, 1971, read with Article 215 of the Constitution of India, against the alleged contemners, and punish them suitably. ( 4 ) IT is not disputed that in obedience to the directions contained in the order of this Court dated 03-12-1997, part payment of the dues has already been made by the alleged contemners. ( 5 ) IN the affidavit-in-reply filed by the alleged contemners it is averred that they have no intention to withhold the payment due to the applicants. But, the outstanding dues of the applicants could not be cleared on account of the financial crunch which the Municipal Borough is facing. It is further averred that for meeting the liability of making full payment in pursuance of the directions of this Court, the Government of Gujarat has been approached for sanction of a special grant, and the matter is pending. It is indicated that as soon as the grant is received, all the dues of the applicants shall be cleared. ( 6 ) IN the circumstances, the Court is of the opinion that there is no wilful disobedience or circumvention of the order of the Court dated 03-12-1997 by the alleged contemners. It is indicated that as soon as the grant is received, all the dues of the applicants shall be cleared. ( 6 ) IN the circumstances, the Court is of the opinion that there is no wilful disobedience or circumvention of the order of the Court dated 03-12-1997 by the alleged contemners. Inability of the contemners to clear the dues, in terms of the order of this Court, on account of financial crunch, cannot constitute wilful disobedience or circumvention, which is a condition precedent for inflicting punishment for contempt. In taking this view, the Court is fortified by the decision of the Honourable Supreme Court rendered in Niaz Mohammad and others Vs. State of Haryana and others, reported in (1994) 6 SCC 332 . ( 7 ) THERE is another aspect of the matter. Vide its order dated 03-12-1997, disobedience whereof is complained by the applicants, this Court directed the Municipal Borough to pay to the applicants all the arrears of salary within a period of six months. The order stipulated that in the event of default, the applicants would be entitled to the interest on the amount due at the rate of 12 percent per annum. Indisputably, there is a default in payment of the arrears of salary within the stipulated period. Resultantly, the applicants have become entitled to interest at the rate of 12 percent per annum, in terms of the order dated 03-12-1997. ( 8 ) IT cannot be gainsaid that the order dated 03-12-1997 is an order passed in petitions under Article 226 of the Constitution, and is executable under Rule 190, read with Rule 191 of The Gujarat High Court Rules, 1993, hereinafter called "the Rules". Rule 190 of the Rules provides that any order in a petition under Article 226 of the Constitution may on an application in that behalf subject to the provision of Section 82 of Civil Procedure Code be transferred under Section 39 of the Code of Civil Procedure to any Civil Court for execution. Rule 191 of the Rules envisages the transmission of the application for execution of the order or decree on original side for execution to a Civil Court after complying with the prerequisites contained in the aforesaid Rule. Rule 191 of the Rules envisages the transmission of the application for execution of the order or decree on original side for execution to a Civil Court after complying with the prerequisites contained in the aforesaid Rule. In this context, it is apposite to notice that under Rule 194 of the Rules an order made by the High Court under Article 227 of the Constitution also is executable in the same manner in which the order made by the Court or Tribunal against which the application under Article 227 has been made could have been executed under law. Thus, a complete code of mechanism for execution, implementation and enforcement of the orders passed under Articles 226 and 227 of the Constitution has been provided by the Rules, and the beneficiary of the order may avail and invoke the remedy ex debito justitiae. ( 9 ) THUS, for enforcement of the directions contained in the order dated 03-12-1997, the applicants have a clear remedy by way of execution by the appropriate Court. It is well settled that the contempt jurisdiction of this Court is not a substitute for executory jurisdiction vested in appropriate forum. The Court is of the view that the applicants, if so advised, may execute the order of this court dated 03-12-1997 in the manner prescribed hereinabove. The prayer for initiation of contempt proceedings for non-compliance of the order of this Court dated 03-12-1997 is ill-advised. It is to be remembered that contempt is a matter between the Court and the alleged contemner. The applicant can not invoke the contempt jurisdiction as a matter of right. The status of the applicant is only that of an informant. ( 10 ) FOR what has been said above, instant case is not a fit case for initiation of any proceeding under the Contempt of Courts Act, 1971 against the alleged contemners. The application lacks substance. ( 11 ) ACCORDINGLY, the Miscellaneous Civil Application is dismissed. Notice is discharged. No order as to costs. .