Calcutta High Court (Appellete Side)
Ram Gopal Agarwala & Ors vs Prasun Guha on 5 October, 2016
Author: Soumen Sen
Bench: Soumen Sen
IN THE HIGH COURT AT CALCUTTA
SPECIAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Subrata Talukdar
WPLRT 142 of 2013
with
WPLRT 353 of 2014
In Re: CPAN 1104 of 2015
Ram Gopal Agarwala & Ors.
-vs.-
Prasun Guha
For the Petitioners : Mr. S.K. Kapur
Mr. Tapas Sil
Mr. Ravi Kapur
Mr. Sanjoy Ginodia
Mr. Monoj Kr. Tiwari
For the Contemnor : Mr. Pranab Kr. Dutta
Mr. Naba Kr. Das
Mr. Supratim Dhar
Heard on : 11/03/2016 & 16/09/2016
Judgement on : 05/10/2016
The Bench: This contempt application, being CPAN 1104 of 2015
(hereinafter referred to only as the contempt application) arises out of
the judgment and order dated 8th April, 2015 passed by an Hon'ble
Division Bench of this Court in WPLRT 142 of 2013. The applicants in
the contempt application, who are the petitioners in WPLRT 142 of
2013, have alleged deliberate and wilful violation of the solemn dated
8th April, 2015 by the sole alleged State Contemnor.
Before this Court turns to the alleged contempt it will be useful
to notice the directions passed in the order dated 8th April, 2015.
After recording its reasons the Hon'ble Division Bench set aside the
order of the Ld. West Bengal Land and Land Reforms Tribunal in OA
Case No. 1441 of 2013 and also quashed the review proceeding being
Case No. 1 of 2013. The Block Land and Land Reforms Officer (BL &
LRO), the sole alleged contemnor herein, was directed to mutate the
names of the petitioners in the record of rights within one month from
the date of communication of the order and accept land revenue from
the petitioners in relation to the land in question.
WP LRT 142 of 2015 stood accordingly allowed.
The applicants allege that the alleged sole contemnor has been
inactive in carrying out the mutation of the land in their favour inspite
of the clear direction of the Hon'ble Division Bench (supra). The
applicants further allege that such contumacious conduct on the part
of the alleged sole contemnor still persists.
After filing of the contempt application it is on record that the
State respondents in the WPLRT 142 of 2013 preferred a Special Leave
Petition (for short SLP) before the Hon'ble Supreme Court. By order dated 14th December, 2015 the Hon'ble Supreme Court was pleased to condone the delay in filing the SLP and grant leave. However, the Hon'ble Supreme Court was also pleased to record that no interim order was either asked for by the petitioner nor is there any reason to grant such interim order.
Considering the fact that the applicants continued to press their contempt application before this Court, the State respondents filed an interim application (for short IA) before the Hon'ble Supreme Court in connection with their SLP. Such IA was taken up for consideration on 12th July, 2016 and, by order of the same date, the Hon'ble Apex Court was pleased to record the submission of the respondents to the IA/present applicants to the effect that no construction shall be made or, third party rights created without the leave of the Court. The IA stood accordingly disposed of. The main matter was directed to be listed on a non-miscellaneous day for final disposal.
Sri S.K. Kapur, Ld. Senior Counsel appearing for the applicants relies heavily on the judicial authorities reported in 1985 Cr LJ 1030 (at Paragraph 11) in the matter of Hans Raj Dhir vs. State of Himachal Pradesh & Ors.; 2015 (3) CHN (SC) 150 in the matter of Asit Kumar Das vs. J. Panda, the Chief Post Master General and 2004 (5) SCC 65 (at Paragraph 26) in the matter of Ghaziabad Development Authority vs. Balbir Singh to press home the point that mere pendency of an appeal before a higher forum without obtaining any order of stay will not entitle the alleged sole contemnor not to comply with the order of the Hon'ble Division Bench dated 15th April, 2015. Sri Kapur asserts that it is the duty of the forum entertaining the appeal or revision to ensure first that the order is complied with.
Sri Kapur further points out that when compliance is refused on the ground that an appeal is preferred or intended to be preferred, the contempt would take a more aggravated form. Referring to the orders passed by the Hon'ble Supreme Court while granting leave to the SLP and, also in the connected IA, Ld. Senior Counsel argues that the State respondents did not pray for an interim order and, in any event no interim order was found to be necessary to be issued. Subsequently in the IA the Hon'ble Apex Court clearly demarcated the position which can be taken by the parties to the SLP pending its final disposal. The Hon'ble Apex Court left enough room for compliance by the sole contemnor by mutating the names of the applicants/writ petitioners in the record of rights while recording the binding nature of undertaking given by the present applicants/respondents to the SLP to the effect that no construction shall take place or, third party rights created without the leave of the Court.
Therefore, Sri Kapur emphasises that compliance is the only remedy now.
Per contra, appearing for the alleged State contemnor, Sri Pranab Kr. Dutta, Ld. Senior Counsel relies heavily on the judgment reported in 2004 (164) ELT.375 (SC) In Re: Union of India vs. West Coast Paper Mills Ltd. at Paragraphs 14, 15, 38 and 39. Sri Dutta argues that with the filing of the SLP and the grant of leave by the Hon'ble Apex Court vide its order dated 14th December, 2015, the order of the Hon'ble Division Bench dated 15th April, 2015 under appeal has been thrown into jeopardy. Therefore, Sri Dutta argues that until the subject matter of the lis is ultimately determined by the Hon'ble Apex Court which has decided to hear the SLP on merits, whether a formal stay of the judgment under appeal operates or not does not require to be overemphasised.
Emphasising on the Doctrine of Merger, Sri Dutta points out that the order of the Hon'ble Division Bench dated 15th April, 2015 does not have any independent existence at this stage and must be considered to have merged with the order of the Hon'ble Apex Court dated 14th December, 2015 granting leave to the SLP. Sri Dutta submits that in the event the sole contemnor is directed to comply by mutating the names of the applicants in the record of rights, such action shall have the effect of rendering the SLP infructuous.
After hearing the parties and considering the facts as well as the law placed, this Court finds that the sine qua non of an action in contempt is the wilful or deliberate violation of the order of the Court. This Court further finds that wilful disobedience to an order of Court may not arise if one of the following factors is found to be present namely, lack of proper care and caution in implementing an order; a bona fide misinterpretation of an order; non-compliance inspite of best efforts to comply; and, delay in carrying out an order for justifiable circumstances.
This Court also notices that In Re: Modern Food Industries (India Ltd.) vs. Sachidanand Dass reported in 1995 Supp (4) SCC 465, the Hon'ble Apex Court made it clear that in instances where disobedience of an order is complained of, it would be appropriate to take into consideration the prayer for stay either earlier or at least simultaneously with the complaint for contempt. Such view was reiterated by the Hon'ble Apex Court in State of J & K vs. Md. Yaqoob Khan reported in 1992 (4) SCC 167.
In Kanti Tarafdar vs. S.K. Chaudhury, Collector of Customs 1995 (1) CHN 269 an Hon'ble Single Bench of this Court opined that in cases of contempt it would be wise to assess whether the contempt application has been filed in haste by the applicants who "wishes to win the battle without having to fight before the appeal Court". In the event such onus is discharged to a reasonable degree by the applicant filing for contempt, the original Court, of whose order contempt is alleged, would be wrong in staying its hands by denying any relief to the applicant.
The underlying strand of judicial thinking as demonstrated though the line of authorities noticed by this Court is the salutary principle highlighted by this Hon'ble Court In Re: Sachin Halder vs. Md. Shaid reported in AIR 2009 Cal 216. This Hon'ble Court came to the view that upon filing of an appeal along with a connected application for stay it is for the Court to assess whether such Court can exercise restraint qua the contempt proceeding or permit the contempt to be prosecuted. There can be no inflexible rule.
In Re: Sachin Halder (supra) this Court in inimitable style held as follows:- "There are certain orders that are orders of the moment and require immediate compliance." This Court also clarified that "It is necessary to look into the seriousness of the effort in obtaining a stay of operation of the order under appeal."
Undoubtedly the case of the State rests on its efforts to resume the land in issue under Section 6(3) of the West Bengal Estates Acquisition Act, 1953 (for short the 1953 Act). Admittedly, on the merits of the dispute the Hon'ble Division Bench found that such non- agricultural land with structures and also within the ceiling limit cannot be resumed under Section 6 (3) of the 1953 Act. Hence mutation was ordered.
The State through its Ld. Counsel now argues that in the event mutation is allowed the land may change hands and third party rights created thereon even without any construction. Such third party rights will deal a further blow to the State's efforts at resumption. Since the main SLP is directed to be placed for final disposal, any interim direction in contempt to carry out the mutation shall have the effect of frustrating the SLP.
At paragraph 8 of its IA No. 2 of 2016 the State had pleaded as follows:-
"8. It is submitted that the sole intention of Respondents is to get their names mutated in the Record of Rights in respect of lands in question. It is apprehended that after getting their names mutated Respondents would convert the said land into commercial building complex and would create third party rights and interest, as has been done in some other similar cases."
In support of paragraph 8 the prayers in the IA were as follows:-
"a) grant stay of the operation of the final Judgment and order dated 08.04.2015 passed in W.P.L.R.T. No. 142 of 2013 by the Hon'ble Calcutta High Court;
b) modify the Order dated 14.12.2015 in terms of prayer (a) above; and
c) pass any other or further orders that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
It is trite law that the mere filing of appeal without stay as pointed out by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid v. Pirthichand Lal reported at AIR 1918 PC 151 that under the law and procedure an original decree is not suspended by the presentation of the appeal nor is its operation affected where the decree or appeal is merely one of dismissal. These observations were referred to and approved by the Hon'ble Supreme Court in State of U.P. v. Mohammad Nooh reported at AIR 1958 SC 86 where the Court explained that the filing of an appeal put the decree or order in jeopardy but until it is reversed or modified it remains effective. Thus, it follows that a mere filing of an appeal does not automatically operate as stay of the order under appeal and in the absence of such stay being obtained from the appellate court or the court which rendered the order, the order continues to be operative and non-compliance with the order in such circumstances may amount to contempt. (Baradakanta Mishra v. Bhimsen Dixit reported at AIR 1972 SC 2466 and Ramakrishna Hela v. Official Liquidator reported at 1999 (2) Cal LT 640) The question arises for consideration before this Court is what would be the consequence of the admission of Special Leave Petition without any order of stay of operation of the impugned judgment. The State in its wisdom at the time of admission of the Special Leave Petition on 14th December, 2015 did not pray for any interim order. The order records that no interim order was either asked for by the petitioners (the State respondents) nor is there any reason to grant such interim order. The disjunctive part of the order shows that the Hon'ble Supreme Court did not find any reason to grant any interim order in favour of the State. The State hardly had any explanation to offer before this Court when the State was asked to explain the reason for not making any prayer for stay of operation of the impugned order since in absence of any stay, the order passed by the Hon'ble Division Bench becomes implementable.
The State faced with such a situation during the pendency of this proceeding moved an interim application before the Hon'ble Supreme Court in connection with the Special Leave Petition. The Hon'ble Supreme Court on 12th July, 2016 disposed of the said interim application by recording the submission of the respondents to the IA/present applicants to the effect that no construction shall be made or third party rights would be created without leave of the Court. The State although had prayed for a larger relief and made specific averments that in the event the petitioners are allowed to have their names mutated in respect of the land in question the respondents could convert the said land into commercial building complex and would create third party rights and interest as may have been done in some other similar cases could not get any order restraining mutation.
The State appears to have not been able to impress the Hon'ble Supreme Court that mutation should not be allowed in favour of the petitioners at all. The respectful reading of the two orders of the Hon'ble Supreme Court clearly show that the Hon'ble Supreme Court did not grant any stay with regard to the mutation but has accepted the contention of respondents not to make any construction or create third party rights without the leave of the Court.
In view of the aforesaid orders, in our opinion the State cannot refuse mutation.
Mr. S.K. Kapur, learned Senior Counsel appearing on behalf of the petitioners submits that the petitioners are willing to give an undertaking that they would not transfer, alienate and/or encumber the property in any manner whatsoever.
In view of the admission of appeal by the Hon'ble Supreme Court and the subsequent orders passed in the pending Special Leave Petition as mentioned hereinabove, we condone the laches on the part of the State in implementing the order dated 8th April, 2015 and accept the explanation offered in answer to the rule. However, we direct the alleged contemnors to mutate the name in favour of the petitioners within a period of two months from the date of filing an affidavit of undertaking by the petitioners with the Registrar General upon prior service of a copy thereof to the State authorities that they shall not alienate, encumber, transfer and/or create any third party interest and shall not change the nature and character of the land in question. It is needless to mention that these directions shall abide by the result of the Special Leave Petition and shall not create any equity in favour of the petitioners.
CPAN 1104 of 2015 stands accordingly disposed of. There will be, however, no order as to costs.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Soumen Sen, J.) (Subrata Talukdar, J.)