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2024 DIGILAW 244 (ALL)

Omwati v. Lokesh M.

2024-01-23

ROHIT RANJAN AGARWAL

body2024
JUDGMENT : ROHIT RANJAN AGARWAL, J. 1. This contempt application has been filed under Section 12 read with Section 2(b) of the Contempt of Courts Act, 1971 for punishing the opposite parties for violating and willfully disobeying the undertaking given by the counsel appearing for New Okhla Industrial Development Authority (in short “NOIDA”) as recorded in the order dated 28.03.2023 read with orders dated 17.03.2023 and 26.10.2023 passed in Writ-C No. 8228 of 2023. 2. The applicant, before this Court, had filed Writ-C No. 8228 of 2023 against NOIDA claiming that without acquiring land of the applicant being Khasra No. 1018 and 1019, situated at Village Baraula Tehsil Dadri District Gautam Buddh Nagar, the opposite parties had included such land for sale of building plots by it. 3. The matter was taken up on 17.03.2023 and the Division Bench directed the counsel for the opposite parties to seek instructions in the matter, and posted the matter as fresh on 28.03.2023 and following order was passed: “The grievance is that without acquiring the petitoner's land of Khasra No. 1018 and 1019 situated at village Baraula, Tehsil Dadri, District Gautam Buddh Nagar, the respondents have included such land for sale of building plots by it. Argument is that such action clearly amounts to violation of petitioner's constitutional right under Article 300 (A) of the Constitution of India. Shri K.N. Singh, appearing for the respondent is allowed one weeks time to obtain instructions. List as fresh once again on 28th March, 2023.” 4. On 28.03.2023, learned counsel appearing for the NOIDA stated that neither the land of the applicant was acquired nor its possession has been disturbed over it. The applicant had relied upon a demarcation report dated 09.01.2019, but the Court ordered for a fresh demarcation of the applicant’s property with reference to the purported report dated 09.01.2019 in presence of the officials of the NOIDA. On 28.03.2023, following order was passed: “At present, pursuant to last order, Shri Kaushalendra Nath Singh, learned counsel for NOIDA states, neither the land of the petitioner has been acquired by the authority nor its possession has been disturbed over it. Learned counsel for the petitioner relies on a document described as the demarcation report dated 9.1.2019. On 28.03.2023, following order was passed: “At present, pursuant to last order, Shri Kaushalendra Nath Singh, learned counsel for NOIDA states, neither the land of the petitioner has been acquired by the authority nor its possession has been disturbed over it. Learned counsel for the petitioner relies on a document described as the demarcation report dated 9.1.2019. Though the same is not accepted at this stage, we provide, in case the petitioner approaches Tehsildar, Dadri along with a copy of this order within a period of two weeks from today, the said officer shall ensure fresh demarcation of the petitioner's property with reference to the purported report dated 9.1.2019 in the presence of the officers of the NOIDA on 27/28.4.2023. Subject to any grievance surviving, matter may be considered on the next date. Put up as fresh in the first week of May 2023. Learned Standing Counsel shall communicate this order to the Sub Divisional Magistrate, Dadri for necessary compliance.” 5. Thereafter, the case was taken up on 13.07.2023, and following order was passed: “1. Learned counsel for the petitioner submits that pursuant to the order of this Court dated 28.03.2023 though demarcation has been done but till date report has not been submitted. 2. Learned Standing Counsel for the State prays for and is granted two weeks' time to obtain necessary documents and place the report on record. 3. List this case on 2nd of August, 2023 as fresh.” 6. Thereafter, the case was taken up on 02.08.2023 and following order was passed: “1. At the request made on behalf of Shri Krishna Mohan Garg, learned counsel for the petitioner, put up this case as fresh on 21.8.2023.” 7. The matter was next listed on 21.08.2023 and following order was passed: “List this case in the next week as fresh.” 8. On 26.10.2023, when the case was taken up, counsel for the Development Authority sought time to file counter affidavit, and following order was passed:- “Learned counsel for the Development Authority prays for and is allowed two weeks time to file counter affidavit. List this case in the week commencing 20.11.2023.” 9. Learned counsel for the applicant has laid emphasis that the statement was made by the counsel for the NOIDA that land of the applicant was neither acquired, nor the possession of the applicant has been disturbed. List this case in the week commencing 20.11.2023.” 9. Learned counsel for the applicant has laid emphasis that the statement was made by the counsel for the NOIDA that land of the applicant was neither acquired, nor the possession of the applicant has been disturbed. But, according to demarcation report, 65 square meters of land is in possession of NOIDA. According to him, the applicant had moved an application for demarcation before the Tehsildar, who had conducted the demarcation on 06.01.2019. 10. Subsequently, the demarcation was carried out in the presence of two Lekhpals of NOIDA and report was submitted on 09.01.2019. According to learned counsel, on the spot, the land of Khasra No. 1018 is short and is in possession of NOIDA. According to him, the statement which was made by the counsel for the NOIDA on 28.03.2023 that neither the possession of the applicant has been disturbed nor the land has been acquired, amounts to contempt as in the fresh demarcation proceedings, the earlier demarcation proceedings have been upheld and the report, which has come, clearly demonstrates the land to be in possession of the NOIDA. 11. Reliance has been placed upon a decision of Hon’ble Apex Court rendered in case of Balwantbhai Somabhai Bhandari Vs. Hiralal Somabhai Contractor (Deceased) and Ors. Civil Appeal No. 4955 of 2022, decided on 06.09.2023. Relevant paragraphs are 53, 58, 61, 62 and 73. 12. I have heard learned counsel for the applicant and perused the material on record. 13. Section 2 (b) of the Contempt of Courts Act, 1971 defines civil contempt, which is extracted as under: “2. (b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.” 14. From the reading of the above provisions, it is clear that when there is any willful disobedience to judgment, decree, direction, order, writ or other process of a Court or willful breach of an undertaking given to Court, that case for civil contempt would be made out against the party alleged. 15. In the instant case, the writ Court on 17.03.2023 had granted time to the counsel appearing for the NOIDA to seek instructions in the matter. 15. In the instant case, the writ Court on 17.03.2023 had granted time to the counsel appearing for the NOIDA to seek instructions in the matter. On 28.03.2023, learned counsel had made a statement that neither the land of the applicant was acquired by the Authority, nor its possession has been disturbed over it. 16. The applicant had relied upon the demarcation report dated 09.01.2019 which was done on his application moved before the Tehsildar. The Division Bench had ordered for making a fresh demarcation in respect to the property of the applicant also taking into account the report dated 09.01.2019. 17. From the perusal of order dated 28.03.2023, it is clear that counsel for the NOIDA had not given any undertaking and had only made a statement to the extent that no acquisition proceedings had taken place, nor the possession of the applicant has been disturbed, meaning thereby that the possession has not been taken over by the Authority. 18. Thereafter, on 13.07.2023, time was granted to the State to obtain the report and place it on record. Thereafter, on two occasions, the matter was deferred. On 26.10.2023, the Development Authority was granted time to file counter affidavit and the matter was posted in the week commencing 20.11.20223 and, till date, the said writ petition has not been adjudicated by the writ Court. 19. The argument made from the applicant’s side to the extent that there has been breach of undertaking by the opposite parties in view of report submitted after fresh demarcation had taken place cannot be accepted as it was only a statement made by the counsel for the Authority that the land of the applicant was neither acquired, nor its possession was disturbed. 20. The applicant had filed the writ petition claiming his land to be in possession of the Authority, for which, no compensation has been granted and it is up to sale for building. The matter is still subjudice and the Court has invited counter affidavit from the opposite parties to the claim made by the applicant. The report submitted to fresh demarcation, till date, has not been accepted by the Court, nor any judicial pronouncement has been made in respect to the land in dispute claimed by the applicant to be in possession of the opposite parties, and the matter is under consideration. 21. The report submitted to fresh demarcation, till date, has not been accepted by the Court, nor any judicial pronouncement has been made in respect to the land in dispute claimed by the applicant to be in possession of the opposite parties, and the matter is under consideration. 21. Reliance placed upon the decision of the Apex Court in case of Balwantbhai Somabhai Bhandari (supra) is distinguishable in the present set of case and the breach of undertaking, alleged by the applicant, has not taken place in the present case as the counsel for the Authority had only apprised the Court about the land of the applicant having not been acquired by the Authority, nor its possession having been disturbed. 22. Reliance placed upon the fresh report by the applicant for attracting Section 2 (b) of the Act cannot be accepted at this stage, as there is no judicial pronouncement by the Court upon the said report, nor any undertaking has been given by the Authority on the basis of the report so called by the Court. 23. In Dr. U.N. Bora, Ex. Chief Executive Officer and others Vs. Assam Roller Flour Mills Association and another, 2022 (1) SCC 101 , the Apex Court while dealing with scope of Section 12 of the Contempt of Courts Act held that no roving and fishing inquiry can be done while exercising jurisdiction under Section 12 of the Act. Relevant paragraph 8 is extracted here as under: “8. We are dealing with a civil contempt. The Contempt of Courts Act, 1971 explains a civil contempt to mean a willful disobedience of a decision of the Court. Therefore, what is relevant is the “willful” disobedience. Knowledge acquires substantial importance qua a contempt order. Merely because a subordinate official acted in disregard of an order passed by the Court, a liability cannot be fastened on a higher official in the absence of knowledge. When two views are possible, the element of willfulness vanishes as it involves a mental element. It is a deliberate, conscious and intentional act. What is required is a proof beyond reasonable doubt since the proceedings are quasi-criminal in nature. Similarly, when a distinct mechanism is provided and that too, in the same judgment alleged to have been violated, a party has to exhaust the same before approaching the court in exercise of its jurisdiction under the Contempt of Courts Act, 1971. What is required is a proof beyond reasonable doubt since the proceedings are quasi-criminal in nature. Similarly, when a distinct mechanism is provided and that too, in the same judgment alleged to have been violated, a party has to exhaust the same before approaching the court in exercise of its jurisdiction under the Contempt of Courts Act, 1971. It is well open to the said party to contend that the benefit of the order passed has not been actually given, through separate proceedings while seeking appropriate relief but certainly not by way of a contempt proceeding. While dealing with a contempt petition, the Court is not expected to conduct a roving inquiry and go beyond the very judgment which was allegedly violated. The said principle has to be applied with more vigor when disputed questions of facts are involved and they were raised earlier but consciously not dealt with by creating a specific forum to decide the original proceedings.” 24. Thus, this Court finds that the order dated 28.03.2023 makes out no case against the opposite parties for willful disobedience of the statement/assurance/undertaking given by the counsel appearing for the opposite parties, during writ proceedings. 25. Contempt application is misconceived and is, hereby, dismissed.