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2014 DIGILAW 1459 (ALL)

Athar Ali Khan v. Khaleeq Ahmad

2014-05-05

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri W.H. Khan, Senior Advocate, assisted by J.H. Khan, for the applicant. 2. This contempt application (civil) has been filed for initiating contempt proceeding against Khaleek Ahmad (who was one of the respondent in Writ B No. 26306 of 2011) and Naresh Kumar, Revenue Inspector, Shamli for disobeying the interim order dated 20.05.2011 passed in Writ B No. 26306 of 2011 and to direct them to pay Rs. 5 Lac by way of compensation to the applicant. 3. Recovery proceeding was initiated against Mustafa Khan for recovery of Sales Tax dues. In the recovery proceeding, plot 216 situated in village Butrara, pargana and district Shamli was auctioned on 12.03.1981. Athar Ali (applicant) and Shahzaman Khan were highest bidder and their bid was accepted. The auction was confirmed by the Collector on 26.06.1981 and sale certificate was issued on 03.07.1981 and possession was delivered on 07.07.1981. 4. Khaleek Ahmad and his co-sharers filed an objection to the auction sale. Board of Revenue U.P. by order dated 25.01.1983 upheld the objection. The applicant filed Writ Petition No. 1440 of 1983, which was allowed by judgment dated 12.04.2007 and setting aside order dated 25.01.1983, the matter was remanded to Board of Revenue U.P. for fresh decision. After remand, Board of Revenue U.P. by order dated 04.02.2011, confirmed the auction sale dated 26.06.1981. 5. Khaleek Ahmad and his co-sharer filed Writ B No. 26306 of 2011. The applicant was a caveator and after hearing the parties, the writ petition was entertained by order dated 20.05.2011 and the parties were restrained from alienating the property in dispute, till further order of the Court. 6. Khaleek Ahmad filed an application dated 12.02.2014, before Commissioner, for directing local police to take action against the applicant for violating the order dated 20.05.2011 passed by this Court, on the allegations that in spite of order, the applicant was demolishing the well lying in the land in dispute and sinking a bore. On the direction of the Commissioner, Revenue Inspector went on the spot on 19.03.2014 and directed the parties for maintaining status quo over the land in dispute and not to demolish the well lying in the land in dispute and sink a bore. Hence this contempt application has been filed. 7. The counsel for the applicant submitted that this Court restrained the parties from alienating the property in dispute. Hence this contempt application has been filed. 7. The counsel for the applicant submitted that this Court restrained the parties from alienating the property in dispute. Revenue Inspector by mis-interpreting the order passed by this Court, passed another order, directing the parties to maintain status quo over the land in dispute and not to demolish the well lying in the land in dispute and sink a bore and install a tube-well. Revenue Inspector has no jurisdiction to pass any restraint/injunction order. By passing restraint order on misinterpretation of the order of this Court, he has committed contempt. He relied upon the judgments of Supreme Court in T.M.A. Pai Foundation Vs. State of Karnataka, (1995) 4 SCC 1 and Anil Ratan Sarkar v. Hirak Ghosh, AIR 2002 SC 1405 in which it was held that the defence of understanding is not only moonshine but a deliberate attempt to overreach this Court's order and as such wilfulness in the matter of disregard of this Court's order is apparent on the face of it and we are not prepared to accept the same as a defence of an action for deliberate and wilful disregard of an order of the court. We find that the actions on the part of the respondent authorities are not only unreasonable but deliberate and spiteful and that too in spite of a specific direction in all the five judgments so far obtained by the petitioners in their favour. Avoidance is written large and it would be difficult for us to consume the same without any particular rhyme or reason. In the contextual facts there cannot be any laxity, as otherwise the law courts would render themselves useless and their order to utter mockery. Feeling of confidence and proper administration of justice cannot but be the hallmark of Indian jurisprudence and contra-action by courts will lose its efficacy. Tolerance of law courts there is, but not without limits and only up to a certain point and not beyond the same. 8. I have considered the arguments of the counsel for the applicant and examined the record. Section 3 (b) of Contempt of Court Act, 1971, defines the phrase "civil contempt" as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to the court. 8. I have considered the arguments of the counsel for the applicant and examined the record. Section 3 (b) of Contempt of Court Act, 1971, defines the phrase "civil contempt" as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to the court. Thus in order to commit civil contempt there must be disobedience of the order of the Court. Supreme Court in All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi, (2009) 5 SCC 417 , held that civil contempt is defined under Section 2(b) of the Act. Thus, any wilful disobedience to the order of the court to do or abstain from doing any act is prima facie a civil contempt. Civil contempt arises where the power of the court is invoked and exercised to enforce obedience to orders of the court. For holding the respondents to have committed contempt, civil contempt at that, it has to be shown that there has been wilful disobedience of the judgment or order of the court. Disobedience of the court's order strikes at the very root of the rule of law on which our system of governance is based. Power to punish for contempt is necessary for the maintenance of effective legal system. It is exercised to prevent perversion of the course of justice. 9. Similar view has been taken by Supreme Court in Dinesh Kumar Gupta v. United India Insurance Co. Ltd., (2010) 12 SCC 770 , The Contempt of Courts Act, 1971 clearly postulates the existence of only the following preconditions before a person can be held to have committed civil contempt: (i) There must be a judgment or order or decree or direction or writ or other process of a court; or an undertaking given to a court and there must be a disobedience to such judgment, etc. or breach of such undertaking and the disobedience or breach, as the case may be, must be wilful. 10. In the present case, injunction has been granted restraining the parties from alienating the property in dispute. None of the parties have alienated the property in dispute. Thus there is no disobedience of the order of this Court dated 20.05.2011. or breach of such undertaking and the disobedience or breach, as the case may be, must be wilful. 10. In the present case, injunction has been granted restraining the parties from alienating the property in dispute. None of the parties have alienated the property in dispute. Thus there is no disobedience of the order of this Court dated 20.05.2011. The allegation of the applicant is that Revenue Inspector by mis-interpreting the order passed by this Court, passed another order dated 19.03.2014, directing the parties for maintaining status quo over the land in dispute and not to demolish the well lying in the land in dispute and sink a bore and install a tube-well although Revenue Inspector has no jurisdiction to pass injunction order. Overt act of Revenue Inspector although illegal and without jurisdiction but restraint order passed by this Court has not been violated/disobeyed, which is condition precedent for initiation of contempt proceeding. The remedy of the applicant is to challenge the order either before higher revenue authorities in administrative side or in writ petition. 11. In view of the aforesaid discussion, contempt application is not maintainable and is dismissed.