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2004 DIGILAW 933 (ALL)

ALI MOHD v. U P STATE INDUSTRIAL CORPORATION

2004-04-28

RAJES KUMAR

body2004
RAJES KUMAR, J. Present Contempt Petition under Section 12 of Contempt of Courts Act, 1971 has been filed with the allegations that the opposite parties have violated the order dated 11-9-1998 passed by this Court in Civil Revision No. 390 of 2002 U. P. S. I. D. C. v. Ali Mohammad and others. 2. It is alleged that inspite of specific undertaking given by the opposite parties before the Court to deposit the entire decreetal amount within two months, the amount has not been deposited and according to the applicant, this amounts to contempt of Court and the opposite parties are accordingly liable to be punished. 3. On the aforesaid facts, notices were issued to the opposite parties. Sri R. N. Singh, Senior Advocate assisted by Sri S. K. Misra put appearance on behalf of both the opposite parties. No counter-affidavit has been filed. Only a preliminary objection has been raised namely for compliance of order dated 11-9- 2002 in Civil Revision No. 390 of 2002, the applicant should file an execution proceeding and the present contempt petition does not lie. In support of his contention, he relied upon the decision in the case of Ashwani Kumar Srivastava v. Anwarul Hasan, Divisional Manager, New India Assurance Co. Ltd. , Allahabad and others, reported in 1997 (31) ALR page 550, Smt. Indu Tewari v. Rama Bahadur Chaudhary and another, reported in AIR 1981 Allahabad page 309 and the decision of the Apex Court in the case of R. N. Dey and others v. Bhagy Abati Pramanik and others, reported in 2000 (2) JCLR 305 (SC) : 2000 (4) SCC page 400. 4. Sri G. N. Verma, Advocate appearing on behalf of the applicant submitted that a specific undertaking was given by the opposite parties before this Court to deposit the entire decreetal amount within two months and since the amount has not been deposited, it amounts to violation of the order of this Court. In support of its contention, he relied upon the Supreme Court judgment in the case of Noor Ali Babul Thanewala v. Sh. K. M. M. Shetty and others, reported in AIR 1990 page 464. 5. The brief facts of the case set out in the Contempt Petition are as follows. 6. In support of its contention, he relied upon the Supreme Court judgment in the case of Noor Ali Babul Thanewala v. Sh. K. M. M. Shetty and others, reported in AIR 1990 page 464. 5. The brief facts of the case set out in the Contempt Petition are as follows. 6. It appears that the land of the applicants have been acquired by U. P. S. I. D. C. under the Land Acquisition Act and in Land Acquisition Reference No. 31 of 1996 (Ali Mohammad v. State of U. P. and others), Xth Additional District Judge, Aligarh passed a judgment and decree/award dated 29-5-1999. Against the said award dated 29-5-1999, U. P. S. I. D. C. filed a First Appeal From Order No. 956 of 1999, in which, on 11-10-1999, the following order was passed: "until further orders of this Court, the execution of judgment and decree/award dated 29-5-1999 passed by Xth Additional District Judge, Aligarh in Land Acquisition Reference No. 31 of 1996 (Ali Mohammad and others v. State of U. P. and others) shall remain stayed provided the appellant deposits 50% of the enhanced amount including solatium, and up to date within two months from today. It is further provided that on the deposit being made, respondents 1 to 3 may withdraw half of the amount so deposited by the appellant without security. The balance amount shall be kept in deposit with a nationalized bank in a term deposit scheme until further orders of this Court. Any amount already deposited by the appellant will be given due adjustment. In default of any of the conditions mentioned above, this interim order shall automatically stand vacated. " 7. In the aforesaid First Appeal From Order on 25-7-2001, the further order was passed as follows: "no one appears for the appellant. Heard learned counsel for the respondent. A Division Bench of this Court directed on 20-9-1999 that 50 per cent of enhanced amount of compensation shall be deposited by the appellant and this amount shall include solatium and up to date interest. The appellant deposited the amount calculating 757 days between the date of notification under Section 4 and the date of award. Whereas, the actual period between date of notification under Section 4 and date of award comes to 1961 days. The appellant deposited the amount calculating 757 days between the date of notification under Section 4 and the date of award. Whereas, the actual period between date of notification under Section 4 and date of award comes to 1961 days. Learned counsel for the appellant prays for and is granted two weeks time to deposit the balance amount with Executing Court. It is pointed out by the learned counsel for the respondent that the Executing Court has not complied with the order of permitting the respondent to withdraw the 50 per cent of the amount deposited as it has deposited the said amount in its own is count. If it is so, the Executing Court is directed to release the amount forthwith as per order dated 30-9-1999. " 8. It appears that U. P. S. I. D. C. did not comply with the said order passed by this Court and has not deposited the entire amount, thus, the applicant moved an application No. 24-E/ga before the trial Court in Execution Case No. 2 of 1999 for sale of property of U. P. S. I. D. C. The said application came up for hearing before the Execution Court and the Execution Court vide its order dated 3-11-2000 allowed the application and directed that for non deposit of 50 per cent amount, properties is being attached and the Bank Accounts of U. P. S. I. D. C. in various Cities have already been attached. Against the said order, U. P. S. I. D. C. filed a Civil Revision No. 390 of 2002 in this Court. The said revision was disposed of on 11-9-2002 on the following terms: "in this revision, Sri R. N. Singh, Senior Advocate has offered that the revisionist is ready to deposit the entire decreetal amount within two months. In view of this offer, it is not necessary to decide the controversy involved in this revision. The request has not been opposed. The revisionist is allowed two months time to deposit the entire decreetal amount, the execution shall remain stayed for a period of two months. 9. It is alleged that the amount which has been promised, has not been deposited, thus, the opposite parties are liable to be punished under the Contempt of Court Act, 1971. 10. The revisionist is allowed two months time to deposit the entire decreetal amount, the execution shall remain stayed for a period of two months. 9. It is alleged that the amount which has been promised, has not been deposited, thus, the opposite parties are liable to be punished under the Contempt of Court Act, 1971. 10. In the case of Noor Ali Babul Thanewala v. Sri K. M. M. Shetty and others, reported in AIR 1990 page 464, the suit for eviction was decreed by the trial Court. Appeal against the said order was dismissed by the District Court. Writ Petition was also dismissed by Bombay High Court. Civil Appeal against the said order was also dismissed by the Apex Court. However, at the request of tenant appellant, Apex Court allowed the appellant to continue in possession and carry on the business till 31-3-1989 subject to the appellant and all those persons who were occupying the premises as implied or staff and were staying in the premises to file usual undertaking before the Court within eight weeks staying inter alia that they would hand over and deliver vacant possession of the premises on the expiry of the period mentioned above and appellant indicate that they would go on depositing the mesne profits until the possession is delivered. It has been further observed that in the default of furnishing or filing undertaking in the manner indicated within the time aforesaid the decree of execution would become executable forthwith. 11. In pursuance of this order, Sh. K. M. M. Shetty filed an undertaking on 5-10-1987. However, inspite of undertaking, premises in dispute was not vacated. In a contempt proceeding, Apex Court held as follows: Para-11 "when a Court accepts an undertaking given by one of the parties and passes orders based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the Court by or on behalf of a party to a civil proceeding is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking, as would their disobedience to an order for an injunction. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking, as would their disobedience to an order for an injunction. It is settled law that breach of an injunction or breach of an undertaking given to a Court by a person in a Civil proceeding on the faith of which the Court sanctions a particular course of action is misconduct amounting to contempt. The remedy in such circumstances may be in the form of a direction to the contemnor to purge the contempt or a sentence of imprisonment or fine or all of them. On the facts and circumstances of this case in the fight of our finding that there was a breach of the undertaking, we think that mere imposition of imprisonment or fine will not meet the ends of justice. There will have to be an order to purge the contempt by directing the first respondent contemnor to deliver vacant possession immediately and issuing necessary further and consequential directions for enforcing the same. " 12. Under the similar circumstances, in the case of Ganpat Ram Raj Kumar v. Kalu Ram and others, reported in AIR 1989 SC page 228, the Apex Court observed as follows: "this Court dismissed the Special Leave Petition and granted time of six months on the plea that the petitioner firm would file an undertaking. All this could not have happened if the present plaintiffs in the Narnaul suit had not consented or allowed it to be passed or stood by. It is difficult to accept the position that they did not know. In the facts of this case, we are of the opinion that they deliberately did not object to this Court passing the order and thereby allowed the firm to mislead this Court. They are, therefore, bound to see that the order of this Court is complied with. Though, contempt is a serious matter and it interferes with the right of those who are found guilty of contempt, no Court should allow any party to mislead the Court and thereby frustrate its order. They are, therefore, bound to see that the order of this Court is complied with. Though, contempt is a serious matter and it interferes with the right of those who are found guilty of contempt, no Court should allow any party to mislead the Court and thereby frustrate its order. In the aforesaid view of the matter, are of the opinion that though perhaps the respondents could not be found guilty of violating any undertaking as there was none,in the facts and circumstances of the case, this Court should ensure compliance with its order dated 24th August, 1987 and see that vacant and peaceful possession is given to the applicant in the interest of justice. Mr. Sanghi, learned counsel for the applicant drew our attention to an order of this Court in Thackar Hariram Motiram v. Balkrishan Chatrathu Thacker, (1988) 3 JT SC 18. That decision was, however, on the question of entertaining a Special Leave Petition, or no. Special leave was not entertained in that case because the petitioner herein had obtained time from the High Court in respect of decree of eviction. In this case, also the Special Leave Petition was dismissed out of consideration for the difficulties of the petitioner firm in the said petition, this Court was induced to grant some time on certain considerations. It appears that this Court was mislead. It further appears that the respondents, all of them, were guilty of acts which led to the situation and thereby frustrate the order of this Court. " 13. The cases relied upon by the learned counsel for the opposite parties referred above, are not much relevant to the issue involved in the present case, Ashwani Kumar Srivastava v. Anwarul Hasan, Divisional Manager, New India Assurance Co. Ltd. , Allahabad and others (supra), this Court held that a decree cannot be executed by means of petition under the Contempt of Courts Act, in view of the fact that a complete and effective procedure of executing a decree were available under the Code of Civil Procedure. In the said case, there was no case of any undertaking given to the Court. 14. In the said case, there was no case of any undertaking given to the Court. 14. In the case of Smt. Indu Tewari v. Rama Bahadur Chaudhary and another, reported in AIR 1981 Allahabad page 309 (supra), it has been held that that for violation of injunction passed by the Subordinate Court, remedy was available under Order XXXIX, Rule 2-A and thus, High Court could not exercise its power under the Contempt of Courts Act. This decision is also not applicable to the present case. 15. In the case of R. N. Dey and others v. Bhagy Abati Pramanik and others, reported in 2000 (4) SCC page 400 also fact as available in the present case, was not there. It was not the case of an undertaking before the Court. 16. In view of the aforesaid facts and circumstances of the case, I am of the view that prima facie opposite parties have violated the order of this Court dated 11-9-2002 in Civil Revision No. 390 of 2002. In the circumstances, they are liable to be present on 18-5-2004 for framing charges. However, one more opportunity is provided to the opposite parties to comply with the order of this Court and in case if order is complied with, they need not to appear in person and to file an affidavit of compliance only. Order accordingly. .