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2019 DIGILAW 284 (UTT)

SUNITA v. DISTRICT MAGISTRATE, HARIDWAR

2019-04-10

N.S.DHANIK, RAMESH RANGANATHAN

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JUDGMENT Ramesh Ranganathan, C.J. (Oral) From the events, as shall be detailed hereinafter in this order, it does appear that both the District Magistrate, Haridwar and the Executive Officer, Nagar Nigam, Haridwar believe that they are above the law and that, notwithstanding an order passed by a competent Court restraining them from taking law into their own hands, they are entitled to act at their whim or caprice, without adhering to the orders passed by a competent Court. 2. The petitioner, a petty vendor selling flowers and Prasad at Har Ki Pauri in Haridwar, was carrying on her petty business in the premises for which a lease was granted by the respondent-Nagar Nigam in favour of her husband in the year 1986. It is the petitioner's case that she has been eking out her livelihood from the said premises ever since then, on payment of monthly rent of Rs. 375/- to the Nagar 2 Nigam. The petitioner instituted a suit in O.S. No. 154 of 2005 before the Additional 1st Civil Judge (Jr. Div.), Haridwar against the Nagar Nigam. The said Suit was contested by the Nagar Nigam which adduced evidence through its employee Sri Rajendra Prasad Sharma. By its judgment and decree dated 12.10.2015, the learned Additional 1st Civil Judge (Jr. Div.) restrained the defendant-Nagar Nigam from interfering with the petitioner carrying on business peacefully; and directed that she not be evicted except in accordance with law. This decree in O.S. No. 154 of 2005 dated 12.10.2005 has attained finality since the Nagar Nigam has, admittedly, not preferred any appeal there against. 3. While matters stood thus, the jurisdiction of this Court was invoked by a self styled public spirited citizen and, by order in WPPIL No. 199 of 2016 dated 15.6.2018, a Division Bench of this Court issued certain directions, as an interim measure, and in larger public interest, to the district administration of Haridwar to maintain the purity and sanctity of the River Ganges and the Ghats at Haridwar. Among the several directions issued to the Haridwar district administration was that the encroachment made on both the banks of River Ganges, as well as on public roads and public paths in Haridwar town, should be removed by issuing four weeks' notice to the occupants who had encroached upon government land/forest land, and two weeks' notice to persons, who had encroached upon public roads/public paths by permitting them to establish their possession on the encroached land/unauthorized construction by way of sale-deeds, title-deeds or any order passed by the competent authority in their favour putting them into possession of the property. A special drive was directed to be launched to evict the unauthorized occupants near Chandi Ghat/Chandi Bridge opposite V.I.P. Ghat. 4. In what is claimed as action taken, in implementation of the aforesaid directions of the Division Bench, the petitioner was highhandedly thrown out from the shop and, according to the petitioner, all her belongings were also thrown out, some of them in the River Ganges. The exercise of eviction was undertaken by the Nagar Nigam pursuant to an advertisement published in the newspapers, though the order of the Division Bench, as aforementioned, required them to give, even to encroachers upon government land, four weeks' notice. 5. Though the order of the Division Bench obligated the respondents to give all encroachers four weeks' notice, the petitioner, whose case stood on a far better footing and who was also protected by the decree passed by a competent Civil Court restraining the Nagar Nigam from evicting her except in accordance with law, was highhandedly evicted from the shop in flagrant violation of the orders of the Division Bench and the competent Civil Court. The obligation cast on the Nagar Nigam, in terms of the decree passed by a competent Civil Court, was to put the petitioner on notice, give her an opportunity of being heard, and only if her possession was found to be unlawful, to then evict her in accordance with law i.e. the provisions of the Uttarakhand Municipal Corporations Act. The Nagar Nigam seeks to absolve itself of all blame, claiming that they had only acted on the directions of the District Magistrate, Haridwar. 6. Though the present writ petition was filed nearly six months ago, in October, 2018, no counter affidavit has been filed by the District Magistrate till date. While Mrs. The Nagar Nigam seeks to absolve itself of all blame, claiming that they had only acted on the directions of the District Magistrate, Haridwar. 6. Though the present writ petition was filed nearly six months ago, in October, 2018, no counter affidavit has been filed by the District Magistrate till date. While Mrs. Prabha Naithani, learned Brief Holder for the State Government, would seek further time to file a counter-affidavit, when we asked her whether the District Magistrate was informed of the present writ petition having been instituted, learned Counsel would answer in affirmative, and state that her office had addressed letter to the District Magistrate on 25.10.2018 itself. In the absence of a counter affidavit being filed by the District Magistrate, we see no reason to disbelieve what is stated in the counter affidavit filed by the Commissioner, Haridwar Nagar Nigam that the exercise of eviction was undertaken on the directions of the District Magistrate. 7. While the highhanded acts of the respondents must be sternly dealt with, the response of the Nagar Nigam, in the counter affidavit filed by them in this Writ Petition, is extremely disconcerting. The averments therein do not disclose the slightest remorse or regret for the highhanded acts of the Nagar Nigam. The stand taken by the Commissioner is that if the petitioner is aggrieved by the violation of the decree, passed by the competent Civil Court, they should take steps to have the decree executed by filing an execution petition, and not to complain before this Court in proceedings under Article 226 of the Constitution of India. 8. Yet another strange defence, put forth by the Nagar Nigam, is that a Division Bench of this Court, in its order in another Public Interest Litigation in WPPIL No. 69 of 2018 dated 5.9.2018, had directed that all dwellers, who had encroached under the bridge in the entire State of Uttarakhand, be evicted by the District Magistrate concerned forthwith. The said order of the Division Bench, in WPPIL No. 69 of 2018, is dated 5.9.2018. This order did not even exist when the petitioner was forcibly and highhandedly evicted from the subject shop on 2.9.2018, and her entire furniture and stock were thrown out, some of them in the River Ganges (whose purity and sanctity was sought to be protected by the Division Bench). This order did not even exist when the petitioner was forcibly and highhandedly evicted from the subject shop on 2.9.2018, and her entire furniture and stock were thrown out, some of them in the River Ganges (whose purity and sanctity was sought to be protected by the Division Bench). It defies reason that the Nagar Nigam should justify its highhanded acts on the basis of an order of this Court dated 5.9.2018, passed three days after they had highhandedly thrown the petitioner out from the subject premises on 2.9.2018. 9. The facts, narrated hereinabove, indicate the lack of respect shown by the Commissioner, Haridwar Nagar Nigam to the orders passed by a competent Civil Court though the judgment and decree inter-parties, which had attained finality, was binding on the Nagar Nigam. The order passed by the Division Bench, in WPPIL No. 199 of 2016 dated 15.6.2018, obligated them to give the petitioner four weeks' notice and provide her an opportunity to show cause whether her possession over the subject premises was legal. If an individual notice had been given to the petitioner, she would then have had the opportunity to bring to the notice of the Commissioner that a decree had been passed by the competent Civil Court, against the Nagar Nigam itself, restraining them from highhandedly evicting her from the subject premises. 10. The submission of Sri Sandeep Kothari, learned Counsel for the Nagar Nigam, that a newspaper advertisement is sufficient notice, is only to be noted to be rejected. Service of notice through paper publication is a form of substituted service, and can be resorted to only when the normal mode of service of notice is ineffective. It is not even the case of the Nagar Nigam that any attempt had been made by them, or by the District Magistrate, to effect service of notice individually on the petitioner or that the petitioner had avoided/evaded receipt of such notice, necessitating their being forced to resort to the mode of substituted service of notice through paper publication. In any event, before resorting to the substituted mode of service through paper publication, the respondents ought to have obtained prior permission from the Division Bench which passed the order in WPPIL No. 199 of 2016 dated 15.6.2018. 11. In any event, before resorting to the substituted mode of service through paper publication, the respondents ought to have obtained prior permission from the Division Bench which passed the order in WPPIL No. 199 of 2016 dated 15.6.2018. 11. These highhanded and illegal acts of the respondents is an affront to the majesty of law, for they have not only violated the directions issued by the Division Bench in WPPIL No. 199 of 2016 dated 15.6.2018, but have also flouted the judgment and decree passed by a competent Civil Court. Section 2(c) of the Contempt of Courts Act defines “criminal contempt" to include the doing of any act which prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding, or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any manner. 7 12. The action of respondents 1 and 2, in flouting the directions issued by the Division Bench in WPPIL No. 199 of 2016 dated 15.6.2018 and the judgment and decree passed by the Additional 1st Civil Judge (Jr. Div.) in O.S. No. 154 of 2005 dated 12.10.2015, prima facie, amounts to criminal contempt. We consider it appropriate, in such circumstances, to initiate criminal contempt proceedings suo motu. The Registry shall initiate suo motu criminal contempt proceedings and issue notices, to respondents 1 and 2 in this writ petition, returnable in four weeks.