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2008 DIGILAW 17 (CAL)

Tandon Brothers v. Mr. Rajesh Pandey

2008-01-09

DIPANKAR DATTA

body2008
Judgment Union of India through the Secretary, Ministry of Defence has filed the present application seeking leave of Court to intervene in CPAN 1608 of 2006, being an application filed by the petitioner alleging contempt of the order dated 26.8.1988 passed by a learned Single Judge of this Court while allowing C.O. No. 10642(W) of 1986, operative part whereof reads as follows: “In view of above, the law in this regard has been set at rest, by the Supreme Court by this time that if the authority intends to acquire the property, the authority cannot remain idle for indefinite period by passing the order of requisition and continue the same and, as such, the second writ petition is entitled to succeed, to this extent that a writ in the nature of Mandamus be issued against the Union of India, Deputy Director, Military Land and Cantonments, Eastern Command (ML & C) Fort William, Calcutta, being respondent No.6 and other appropriate authorities by commanding them to take steps for acquisition of the property in respect of “Rohini Tea Estate”, which is continuing under the purview of requisition, either under the Defence of India Act and Rules and/or the Act of 1952, forthwith. The said respondent No.6 is also directed to proceed in the said regard, in accordance with law to acquire the land and to determine the compensation for acquisition, as well as compensation for requisition, within a period of 6 months from communication of this order. The second writ petition is also allowed accordingly.” It is not in dispute that though the judgment and order dated 26.8.1988 was reversed in appeal by a Division Bench of this Court by judgment dated 8.6.1994, the Apex Court by its judgment and order dated 3.4.2001 upset the said Division Bench judgment and restored the order of the learned Single Judge. It is further not in dispute that on an application for review of the order dated 3.4.2001 filed by the Union of India, the Apex Court on 9.2.2004 passed the following order: “Heard learned Additional Solicitor General and learned senior counsel appearing on either side. On a careful consideration of the respective submissions, we are of the view that there is no scope for undertaking consideration of all such contentions, and they deserve to be disposed of only as hereunder. On a careful consideration of the respective submissions, we are of the view that there is no scope for undertaking consideration of all such contentions, and they deserve to be disposed of only as hereunder. The applications for clarification, modification as well as review petitions subsequently filed shall stand dismissed without going into the merits of the claim of the parties on either side. We also leave open the questions relating to actual rights of parties over and in respect of the properties/land in question”. Mr. Singh, learned Additional Solicitor General appearing in support of the application contended that the petitioners have no title to the land/property in question and, therefore, no consequent right to be compensated. According to him, this issue was raised by the Union of India in its review application before the Apex Court and the question relating to mutual rights of the parties over and in respect of the property/land in question having been left open, the petitioners cannot claim any benefit flowing from the order dated 26.8.1988. He submitted that compensation, if at all, has to be paid from the account of the Ministry of Defence, Union of India and, therefore, Union of India ought to be allowed to participate in this proceeding to prevent drainage of public fund in the form of compensation in favour of the petitioner who has no right in respect thereof particularly when the alleged contemnor/opposite party no.2, prima facie, has been formed to collude with the petitioner, giving the extant rules a complete go bye thus indulging in misconduct, and is facing disciplinary proceeding. Mr. Bandopadhyay, learned Senior Counsel for the petitioner on the other hand submitted that the application for intervention, apart from not being maintainable in law, ought to fail on merits. According to him, the Union of India is seeking to reopen issues which have already been settled in an attempt to review the earlier judgment which is impermissible in law. In this connection, he referred to the decision of the Apex Court reported in AIR 2004 SCW 481 : State of Bihar vs. Rajendra Singh. He also argued on the scope of ‘an intervenor’ by referring to the decision of the Apex Court reported in (2006) 5 SCC 62 : Ravi Rao Gaikwad vs. Rajajinagar Youth Social Welfare Association. In this connection, he referred to the decision of the Apex Court reported in AIR 2004 SCW 481 : State of Bihar vs. Rajendra Singh. He also argued on the scope of ‘an intervenor’ by referring to the decision of the Apex Court reported in (2006) 5 SCC 62 : Ravi Rao Gaikwad vs. Rajajinagar Youth Social Welfare Association. By referring to the order of the Apex Court dated 9.2.04, he submitted that the application for review having been dismissed, the ultimate paragraph of the order is redundant so far as the present contempt proceeding is concerned, for, no declaration had been issued in respect of the claim of the Union of India and that the same in no way curtails the effect and import of the order dated 26.8.88, in relation whereof contempt has been alleged. Mr. Singh and Mr. Bandopadhyay have been heard for and against the application respectively at length assuming the application to be maintainable. This Court, however, considers it unnecessary to deal with the rival submissions in extenso, for, the application for intervention appears to be not maintainable in view of the Division Bench decision of this Court in Nalini Ranjan Das vs. Anup Singh reported in 1990 (2) CLJ 190. It has been held therein as under: “47. The focal point for determination is whether the said application praying for intervention in contempt proceedings is maintainable or not ?......................The Contempt of Court Act, 1971 and the Rules framed by this Court do not provide for intervention by the third parties. The provisions of Code of Civil Procedure as to addition of parties do not arise in the contempt matter which is entirely between the Court and the Contemner. ……………….. 48. On the question of the third party intervention we are of the view that under the Contempt of Court Act as also Rules framed thereunder the applicants cannot be permitted to join as Interveners in the Contempt proceedings. The presence of the interveners in a given situation may lead to the generation of heat as well as arming for and against the contemners with lethal weapons which, in our opinion, would make the Court involved more than what is necessary in exercise of its jurisdiction under the Contempt of Court Act. The presence of the interveners in a given situation may lead to the generation of heat as well as arming for and against the contemners with lethal weapons which, in our opinion, would make the Court involved more than what is necessary in exercise of its jurisdiction under the Contempt of Court Act. We are, therefore, of view that the applicants have no right of participation inasmuch as the right of participation is not given under the Act to third parties including those who act as an informer.” Faced with this decision, Mr. Singh intended to draw a distinction by submitting that the Union of India is not a third party intervenor but was all throughout a contesting party and, therefore, the decision in Nalini Ranjan Das (supra) would have no applicability in this case. The distinction sought to be drawn is unacceptable since the intervenors in Nalini Ranjan Das (supra) were respondents in the writ petition, although they had not contested it. But that is hardly relevant. In view of the law laid down therein extracted above, an application for intervention in a proceeding for contempt which is entirely between the Court and the alleged contemnor cannot be maintained either under the Contempt of Courts Act or the Civil Procedure Code. This Court is bound by the said authority and accordingly, this Court has no other option but to hold that the present application is not maintainable. The same stands dismissed but without any order for costs.