Gujarat High Court
The District Collector, A' Bad And ... vs Gujarat Industrial Investment ... on 31 March, 2008
Equivalent citations: AIR 2008 (NOC) 2742 (GUJ.), 2009 (1) AJHAR (NOC) 172 (GUJ.)
Author: C.K. Buch
Bench: C.K. Buch
JUDGMENT C.K. Buch, J.
1. Rule. Learned Counsel appearing for the respective parties waive service of Rule. By consent of the parties, both these Civil Applications filed in Special Civil Application No. 11524 of 2002 have been heard together finally for valid reasons and are decided by this common judgment.
2. Civil Application No. 12417 of 2007 is filed by the District Collector, Ahmedabad in capacity of Chairman of Sale Committee constituted by the order of this Court dated 29th December, 2005 for the purpose of putting to auction demised property of the debtor, i.e., Empire Hotels and Resorts Limited [hereafter to be referred to as "Shalin Hotel"], who is applicant of Civil Application No. 1585 of 2008.
3. Civil Application No. 1585 of 2008 moved by Shalin Hotel is filed through Shri Hasmukhbhai Shah, Managing Director. Opponent Nos. 1,2,4,5, 6 and 8 are secured creditors to whom the applicant Shalin Hotel is debtor. City Deputy Collector is one of the party opponents in the above Civil Application as he has played some role in handling and controlling possession of the property of Shalin Hotel in capacity of officer of the Revenue Department, State of Gujarat. M/s. A.P. Inc. is joined as party-opponent No. 1 in Civil Application No. 12417 of 2007 filed by the District Collector and is represented through one Shri Trailesh Patel in capacity of auction purchaser of the property in question of Shalin Hotel and is in possession of the property in question at present. All the parties who have close contest in both these Civil Applications have filed their respective affidavits, i.e. by District Collector, Shri Trailesh Patel and Hasmukhbhai Chinubhai Shah. I have gone through the contents and averments raised in both the Civil Applications as well as the documents produced by the parties.
4. I have heard Mr. Maulik Nanavati, learned Counsel appearing for the District Collector, Mr. Saurabh Soparkar, learned Senior Advocate appearing with Mr. Shalin Mehta for Shalin Hotel, Mr. Mihir Thakor, learned Senior Advocate appearing for opponent no 9 - M/s. A.P. Inc and Mr. R.D. Dave, learned Counsel appearing for Gujarat Industrial Investment Corporation Ltd.[hereafter to be referred to as "GIIC"] who is the original petitioner of Special Civil Application No. 11524 of 2002. Learned Counsel appearing for rest of the secured creditors have adopted the arguments advanced by Mr. R.D. Dave, as well as the submissions made by Mr. Mihir Thakor, learned Senior Advocate and Mr. Maulik Nanavati, learned Counsel appearing for respective parties.
5. From plain reading of both these applications, it emerges that controversy between the parties centers around the act of the District Collector of executing a sale deed in favour of opponent No. 9 M/s. A.P. Inc on 10th May, 2007 and also the act of drawing of panchnama on 2nd April, 2007 and the act of handing over possession of the property in question of Shalin Hotel to auction purchaser M/s. A.P. Inc. Say of the applicant Shalin Hotel is that decision and action of handing over possession and execution of sale deed in favour of opponent No. 9 M/s. A.P. Inc is contrary to the order of status-quo dated 20th February, 2007 granted by the Division Bench while disposing of Civil Application No. 2426 of 2007 in Letters Patent Appeal No. 1420 of 2006. Such actions of the Collector of executing sale deed and handing over possession even prior to the execution of sale deed in favour of M/s. A.P. Inc. are the acts violative of the order of this Court and therefore, the deed executed in favour of opponent No. 9 M/s. A.P. Inc is null and void. Shalin Hotel, in its Civil Application No. 1585 of 2008 in para-16[D] has prayed that this Court may hold the present opponent No. 9 M/s. A.P. Inc. guilty of committing contempt of the order dated 20th February, 2007 passed by the Division Bench in Civil Application No. 2426 of 2007 in Letters Patent Appeal No. 1420 of 2006. Plain reading of the above application also gives an impression that according to Shalin Hotel, District Collector is also contemner.
6. Mr. Saurabh Soparkar, learned Senior Advocate, while developing his arguments, has submitted that the Collector is pretending that he was not aware about the order dated 20th February, 2007, otherwise, circumstances emerging from various orders and other proceedings show that the State and the Collector were aware about the order of status quo dated 20th February, 2007. It is also submitted that there is neither any force not logic in the say of Chairman of the Sale Committee, i.e., District Collector that he executed the sale deed in favour of opponent No. 9 M/s. A.P. Inc. on the strength of the opinion received from one A.G.P. [whose name has not been disclosed by any party]. Mr. Soparkar heavily submitted that the applicant Shalin Hotel has already initiated independent action so that responsible contemner can be punished. It is submitted that Shalin Hotel, at present, is not pressing relief 16[D] of the Civil Application filed by it. Shalin Hotel has prayed for the following main reliefs in para 16[A], [B] and [C]:
[A] Your Lordships may be pleased to direct the present opponent No. 8 A.P. Inc to hand over the possession of the demised property to the present opponent No. 9 District Collector, Ahmedabad forthwith;
[B] Your Lordships may be pleased to pass a cease and desist order to restrain the present opponent No. 8 M/s. A.P. Inc from constructing on the demised property or in any other manner dealing with the same;
[C] Your Lordships may be pleased to direct the present opponent No. 9 District Collector, Ahmedabad, to place on record of the present proceedings a copy of the minutes of the meeting of the Sale Committee held prior to execution of the Sale Deed in favour of the present opponent No. 8 on 10.5.2007;
7. Keeping in mind the contents of the Civil Application filed by District Collector, Ahmedabad and the reliefs prayed, it is not necessary to ask the District Collector, Ahmedabad, to place on record the proceedings of the meeting of the sale committee held, including the minutes of the meeting prior to execution of the sale deed in favour of M/s. A.P. Inc, more particularly in the background of the oral submissions made by learned Senior Advocates M/s. Soparkar and Mihir Thakor representing two main rival contestants. It would be beneficial to reproduce the nature of reliefs prayed by the District Collector in para 15[A] of the Civil Application filed by him. Relief prayed for in para 15[B] is residuary relief.
[A]To take note of the fact that the possession of the demised property has been handed over to and sale deed executed by the office of the applicant in favour of the purchaser, which action is seemingly contrary to the direction given by this Hon'ble Court, and in light of the same issue appropriate order or direction to the applicant for proceeding against the purchaser in accordance with law or in any manner as may be directed by this Hon'ble Court.
8. Plain reading of the application filed by the Collector makes it clear that the same is filed seeking issuance of appropriate directions concerning the action of handing over of possession of the property in question of Shalin Hotel to the auction purchaser M/s. A.P. Inc, and execution of sale deed undertaken by the predecessor in office in her capacity as Chairman of the Sale Committee. It is necessary to mention that the officer who had undertaken exercise of executing sale deed in favour of the auction purchaser herself has not filed any affidavit. Whether such affidavit is required to be filed or successor in office can legitimately meet with the contingencies is altogether a different question and the same is dealt with hereafter as Mr. Soparkar, learned Sr. Advocate, during the course of his oral submissions has attempted to impress upon the Court that at relevant point of time, office of the Collector including the Deputy Collector, somebody in the office of the Government Pleader, High Court of Gujarat, secured creditors and the auction purchaser were hand in glove and all of them have jointly defied the order dated 20th February, 2007 passed by the Division Bench of this Court and thereby have committed this wrong and therefore, the act of handing over of possession of the property to M/s. A.P. Inc should be corrected by putting the clock back and the Court also should declare that the deed executed in favour of M/s. A.P. Inc is void and not binding to any of the parties, mainly, Shalin Hotel.
9. Mr. Soparkar has submitted that Civil Application filed by the Collector, if is read, it impliedly makes it clear that the applicant District Collector indirectly admits the wrong committed and the version of the Collector in the application is nothing but seeking justification of the actions taken by his predecessor. The acts of his predecessor have been exhibited as bona fide action taken by her at relevant point of time. It is submitted by Mr. Soparkar that, such excuses or explanations, i.e. ignorance of certain facts, mainly, absence of knowledge of the order of Division Bench dated 20th February, 2007, would not help any of the parties, mainly the Collector or M/s. A.P. Inc in the eye of law. If the Court finds that the possession handed over to M/s. A.P. Inc on 2.4.2007 and the sale deed executed on 10.5.2007 are violative of the order of the Division Bench, then, obviously, the parties now shall have to be directed to wait till disposal of the main petition. It is also submitted by Mr. Soparkar that construction activities going on at the site of the property also obviously may be stalled.
10. The question posed by Mr. Soparkar is that why collusion type of conduct should be condoned. According to him, M/s. A.P. Inc, till date, by filing any Civil Application or any substantive proceedings either in the main petition or in the Letters Patent Appeal disposed of earlier, has never prayed to rectify things that have happened after the orders passed on 20th February, 2007 by the Division Bench of this Court. Crucial question before this Court is whether action of the Collector, which is contrary to the order of the Division Bench, is an irregularity or a nullity. If the Court finds that the action was null and void and contemptuous act done, then, the sale deed executed in favour of M/s. A.P. Inc should be declared as cancelled. Thereafter, on merits, this Court if directs the Collector, being Chairman of the Sale Committee after hearing the parties on merits, the Collector can then, hand over possession of the property in question to the auction purchaser and fresh deed of sale can be ordered to be executed. To substantiate this submission, Mr. Soparkar has placed reliance on the judgment in the case of Mafatlal Industries v. In re reported in 1997 [90] Company Cases P. 247. Mr. Soparkar has placed reliance upon certain observations made by the Court while dealing with the controversy, which are referred hereinafter.
11. According to Mr. Soparkar, facts of the case before the Court were in reference to issuance and participation in a meeting despite of prohibition of transfer of shares but the observations made by this Court if are found relevant, being legal and important, then, such observations need to be considered while dealing with the dispute in present case. The purpose of the order of the Division Bench of this Court was clear when the Division Bench decided not to accept the Civil Application preferred by auction purchaser and was of the view to prevent certain things till the learned Single Judge passes further orders in the pending substantive petition filed by GIIC. The auction purchaser, at least, ought to have moved the Division Bench for vacating the order of prohibitory nature, whereby, the parties were directed to maintain status quo till further orders that may be passed by the learned Single Judge. If the facts are read closely, it would give an impression that each party who was party before the Division Bench, had knowledge of the said order and such party includes State also and the Collector herself. On the contrary, when the knowledge is otherwise inferable from the set of facts, the Court should infer such knowledge. There is clear distinction between the action void and voidable and according to Mr. Soparkar, in the present case, the act of the Collector is void and is not voidable and therefore, there cannot be any rectification or condonation. In support of this submission, Mr. Soparkar has placed reliance on the observations made by this Court in the above cited decision of Mafatlal Industries [supra] wherein, the Court has observed as under:
Yet if a person injuncted can bring into effect a valid alienation in breach of it, it will be to accept that fulfillment of the object for which restraint orders can be made, is dependent on the volition of the person injuncted and not as a part of the discipline of law and law is powerless to fulfill that object, where it is possible to achieve it, and must rest content with punishing the person guilty of defiance. In our view, the fact that the Code provides for imprisonment of a person committing disobedience of the orders of the court and also provides for payment of compensation to the injured party out of proceeds of sale of the property in attachment does not prevent the court from taking such course of action to enforce its orders or to order to bring into existence a fact situation even in case orders have been vacated, if still capable of enforcement in any manner. The cases are not wanting where person under restraint order for maintaining status quo alters the status quo by mandatory direction. If the legal effect and efficacy of a transaction carried out in breach of a restraint order is not affected and the only remedy is to commit the defaulter for imprisonment under contempt, such course would not be open.
xxx xxx xxx But the imposing of penalty on the party guilty of the disobedience does not provide any relief to the party in whose favour the order of temporary injunction is passed. The object of such an order is to safeguard the rights of a party against a threatened invasion by the other party. If in disobedience of the order of injunction such rights are invaded during the pendency of the suit relief can only be granted to the aggrieved party by invoking the inherent power of the court under Section 151 of the Code of Civil Procedure.
xxx xxx xxx In effect, therefore, a stay order is more or less in the same position as an order of injunction with one difference. An order of injunction is generally issued to a party and it is forbidden from doing certain acts. It is well-settled that in such a case the party must have knowledge of the injunction order before it could be penalised for disobeying it. Further, it is equally well-settled that the injunction order not being addressed to the court, if the court proceeds in contravention of the injunction order, the proceedings are not a nullity.... That, in our opinion, is the only difference between an order of injunction to a party and an order of stay to a court. In both cases knowledge of the party concerned or of the court is necessary before the prohibition takes effect.
xxx xxx xxx When once an order has been passed which the court has jurisdiction to pass, it is the duty of all persons bound by it to obey the order so long as it stands, and it would tend to the subversion of orderly administration and civil government, if parties could disobey orders with impunity. If disobedience could go unchecked, it would result in orders of courts ceasing to have any meaning and judicial power itself becoming a mockery.
xxx xxx xxx As in such cases during the interim period proceedings are not a nullity, the remedy was made available to the party concerned only. But where the court gets the knowledge, the court held the proceedings thereafter to be nullity passing into the realm of void from voidable.
There is yet another aspect of the matter which needs consideration. A temporary injunction, undoubtedly, does not suspend the rights of the respective parties in the property but prohibits the doing of such acts in respect of the property in question. As noticed above, it was on this principle that the argument was canvassed drawing support from the decisions referred to above by learned Counsel that the right to alienate a property remains with the person injuncted and, therefore, exercise of that right is not invalidated by any provision of law.
12. According to Mr. Soparkar, Sale Committee was made disabled from acting further vide order dated 20th February, 2007 and this infliction of legal disability goes to the root of the validity of the action of handing over possession and execution of the sale deed. Mr. Soparkar has taken me through Section 23 of the Contract Act. Section 23 of the Contract Act deals with considerations and objects which are lawful, and what not. It provides that the consideration or object of an agreement is lawful, unless it is forbidden by law or is of such nature that, if permitted, it would defeat the provisions of any law or is fraudulent etc. Scheme of Section 23 says that in each of such cases, consideration or object of agreement is said to be unlawful and void. When the Collector admits and is praying simultaneously that she [i.e. the then Collector] was not knowing the existence of the order dated 20th February, 2007 passed by the Division Bench in Civil Application moved by the auction purchaser M/s. A.P.Inc. and that the order was never served to the Collector by any of the parties, it is possible to infer that this ignorance is nothing but reflection of some collusion between the auction purchaser and other interested parties against Shalin Hotel and in such situation, the action and sale agreement contrary to the order of the Division Bench becomes void. According to Mr. Soparkar, sale deed executed in favour of M/s. A.P. Inc. smells of some fraud played against the Court. It is also submitted that it is also an action defeating the law. It is submitted that any act which is violative of order of the Court cannot be said to be lawful act. Mr. Soparkar has fairly accepted that the judgment of this Court in the case of Mafatlal Industries [supra] was reversed by the Apex Court reported in 121 Company Cases 519, but the opinion expressed by this Court cannot be said to have been reversed and therefore, this Court can still consider the observations made by this Court in the case of Mafatlal Industries [supra] as a guidance. Mr. Soparkar has further placed reliance upon the judgment of the Apex Court in the case of D.D.A. v. Skipper Construction Co. [P] Ltd. . Mr. Soparkar has mainly relied upon the observations made by the Apex Court in para-19, wherein, the Apex court has observed as under:
To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Limited v. S. Suppiah and Sujit Pal v. Prabir Kumar Sun . In Century Flour Mills Limited, it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the Court, as a policy, to set the wrong right and not allow the perpetuation of the wrong-doing. The inherent power of the Court, it was held, is not only available in such a case, but it is bound to be exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.
13. Similarly, Mr. Soparkar has relied upon a decision in the case of Rafique Bibi [Dead] By Lrs v. Saiyed Waliuddin[Dead] by Lrs. and Ors. , wherein, the Apex Court has considered the observations in reference to void decree. Para-7 of the said judgment reads as under:
7.Two things must be clearly borne in mind. Firstly, "the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be 'a nullity' and 'void' but these terms have no absolute sense: their meaning is relative, depending upon the court's willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results." [Administrative Law, Wade and forsyth, 8th Edn., 2001, p.308.] Secondly, there is a distinction between mere administrative orders and the decrees of courts, especially a superior court. "The order of superior court such as the High Court, must always be obeyed no matter that flaws it may be thought to contain. Thus a party who disobeys a High Court injunction is punishable for contempt of court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time-limit."[ibid., p.312]
14. Before making submissions for the auction purchaser M/s. A.P. Inc, Mr. Mihir Thakor, learned Senior Advocate has taken me through the facts that ultimately brought the parties to the present controversy from record. It is submitted by him that auction sale of the property in question of Shalin Hotel was arranged and had taken place on the orders of the Court and under the supervision and control of the Court. It is submitted that as such no stake of the applicant can be said to have involved today as the property was ordered to be sold at handsome consideration of Rs. 15.10 crores, much higher than the highest bid. The Sale Committee had received highest offer of Rs. 12.86 crores from one M/s. Pacifica Infrasctructure Company Pvt. Ltd., but prior to confirmation of the bids received for Rs. 12.86 crores, present auction purchaser entered into the field and offered amount of Rs. 15.10 crores and ultimately its offer being the highest was found acceptable and therefore, the same was accepted by the Court and the Court ordered confirmation of sale/bid of M/s. A.P. Inc. There is no controversy as to the money fetched nor as to the description of the property sold. According to Mr. Thakor, if both the applications are read, it would become clear that say of the Shalin Hotel is that the sale deed may be held null and void as the same is executed against the letter and spirit of the order of this Court and there was no scope for the Collector to hand over possession of the property to the auction purchaser and therefore, possession also should be restored back to the Sale Committee. It is also submitted that it is necessary to establish the prestige of the Court and that too, the highest Court of the State. It is the say of the Collector in his application that his predecessor executed the sale deed and handed over possession in compliance of the earlier order passed by the Court and on account of disposal of the Letters Patent Appeal, whereby period of delayed payment was condoned by the Court on payment of amount of interest for the entire period of delayed payment. As such, there was no controversy on this very order passed by the Division Bench of this Court in the matter where Shalin Hotel was also a party. The Collector, therefore, has prayed that his act should be held to be bona fide, otherwise, appropriate orders may be passed and the Collector, as Chairman of the Sale Committee would abide by any order that may be passed by the Court and in the interest of justice, appropriate direction may be given or further orders may be passed, because, ultimately, Division Bench has relegated the parties to the learned Single Judge, where substantive petition filed by GIIC was pending. It is submitted by Mr. Thakor that say of the applicant Shalin Hotel is that restitution and status-quo ante qua possession of the property be ordered and only then, prestige of the Court would get established. However, say of Mr. Thakor is that opponent No. 9 M/s. A.P. Inc. has no dispute as such that some irregularity or error has been committed and either GIIC or M/s. A.P. Inc. or Collector ought to have approached the learned Single Judge for appropriate further orders after 20th February, 2007, i.e. the day on which the Division Bench decided not to accept the plea placed by opponent No. 9, or Division Bench ought to have been approached for vacating the order of status quo. It was possible for Collector or GIIC or M/s. A.P. Inc. individually or jointly to approach the Division Bench of this Court and it could have been accepted that hidden element of prohibition in the order of status-quo may become embargo in proceeding further so that confirmation of sale is given absolute effect, because, successful auction purchaser, obviously, would insist for execution of sale deed and so also for possession of the property. When the applicant Shalin Hotel was party before this Court and has not even disputed the legality and validity of the order passed by the Division Bench while disposing of the Letters Patent Appeal whereby the period of delayed payment on condition to pay interest was condoned, the applicant Shalin Hotel, legally cannot say that it is entitled for any type of restitution. Secured creditors including the Collector were of the view that further steps in the direction to make sale absolute are required to be taken and the deed is executed, but prior thereto, auction purchaser was put in possession. As per condition No. 15 of the terms and conditions of tender form No. 15/06 issued in compliance with the order of this Court in Civil Application No. 4846 of 2005 in Special Civil Application No. 11524 of 2002, the property was supposed to be handed over to the auction purchaser on payment of full sale price to the Sale Committee or subject to such condition as the Court may issue in the matter. The applicant Shalin Hotel has not even pointed out that what additional condition that this Court could have imposed, was required to be imposed before handing over possession. So, legitimately a party who invited the order of the Division Bench in the Letters Patent Appeal cannot plead before this Court that the act of handing over possession of the property in question by the Collector was either bad or illegal having regard to the terms and conditions of tender form. Thus, according to Mr. Thakor, both these applications center around two aspects that as possession of the property has been handed over and sale deed has been executed despite order of status quo passed by the Division Bench on 20th February, 2007, both these actions should be struck down [i] to establish prestige of this Court and [ii] restitution of the party who is entitled to such relief of restitution. Mr. Thakor has hammered on the point that in view of the above facts and totality emerging from the earlier orders passed by this Court, there is no need to restitute any party, more particularly, Shalin Hotel. None of the other secured creditors has prayed for restitution. So, if the Court is of the view that some wrong somewhere has been committed, then, it should be held to be an irregularity and there is no need to pass any order of restitution in favour of any of the party including the applicant Shalin Hotel. Scope of restitution is absent in the present case. Therefore, in cases, where any action is found to have been taken in violation of the order of this Court or not in accordance with the order of the Court, the scope of restitution in favour of a party whether exists or not is a question which needs to be examined and that need is found absent and therefore, the Court may not order restitution.
15. It is the say of Mr. Thakor that he fully agrees that at the most, this is a case where the Court, by itself, or any of the parties can say that prestige of the Court need to be established as the action of the Collector is not strictly in accordance with the order of the Court, but to some extent it is contrary to the wish or desire expressed by the Court. Wish or desire expressed by the Court if is found expressed in the form of a direction, then, a party defaulter or wrong doer should be asked to obey further orders that may be passed for establishment of the prestige of the Court. Therefore, at the most, the applicant Shalin Hotel can insist that this is a case where prestige of the Court requires to be established. So far as this plea taken by Shalin Hotel is concerned, substance and ultimate strength in the plea needs to be examined and the Court is required to consider whether prestige of the Court can be established only by declaring the sale deed executed by the Collector as null and void or any other action is possible which can establish the prestige of the Court. If the order of the Division Bench dated 20th February, 2007 is read, it is clear that the parties were relegated to the Single Judge where the main petition was pending. Undisputedly, M/s. A.P.Inc has offered highest amount of Rs. 15.10 crores and that offer was accepted by order dated 1st March, 2006. Purchaser, therefore, was supposed to pay 25% of the total amount offered within 30 days and the said amount was paid within 30 days and the remaining 75% amount was required to be paid within three months. M/s. A.P.Inc failed in paying that amount and therefore, extension for period/time was prayed before the learned Single Judge, but the learned Single Judge rejected the application for extension of time and ordered forfeiture of 25% deposited by M/s. A.P. Inc. Against that order, Letters Patent Appeal was preferred by M/s. A.P. Inc [opponent No. 9 herein] and ultimately, the said Letters Patent Appeal came to be allowed and the auction purchaser M/s. A.P. Inc was permitted to pay money with interest vide order dated 28th December, 2006. Mr. Thakor has pointed out that the order passed by the Division Bench of this Court in the said Letters Patent Appeal is at page 90 of the Civil Application preferred by the Collector. Mr. Shalin Mehta, appearing for Shalin Hotel, i.e. Opponent No. 7 was present during the hearing and the orders passed. In this background, according to Mr. Thakor, operative part of the order passed by the Division Bench in Letters Patent Appeal requires to be read. It is necessary to reproduce part of the order dated 28th December, 2006 passed by the Division Bench in Letters Patent Appeal No. 1420 of 2006 with Civil Application No. 13002 of 2006, which is relied upon by Mr. Thakor. The same is reproduced hereunder:
Learned Counsel for the other side confirms that now the appellant has deposited the balance amount along with interest at the rate of 12%, with the Collector. The other respondent parties in this appeal have no objection in case the amount is accepted against the sale of the property in question.
Considering the submissions of the appellant and other learned Counsel for the parties, and the fact that when the balance amount along with interest has been deposited with the Collector and that fact has not been controverted by the learned Counsel for the respondents, we are inclined to set aside the impugned order of the learned Single Judge dated 25.9.2006. Order accordingly.
16. The order, thus, passed by the Division Bench of this Court is a consent order and therefore, as such, there is no locus for Shalin Hotel to make a grievance against any actions that have been taken to see that auction sale is conducted under the orders of the Court and under the supervision of the Court, reach to their finality. True it is that anybody, if feels that any of the parties before the Court has attempted to undermine the dignity and prestige of the Court, such person or party can bring that fact to the notice of the Court and then, the Court, either suo motu or on an application preferred by the party, can decide to initiate action. The applicant Shalin Hotel has never approached the Division Bench. Independent contempt proceedings, of course, have been initiated and the opponent No. 9 auction purchaser if is found guilty, then if the Court is satisfied, appropriate punishment or penalty can be imposed. This situation, by itself, is not sufficient to order entire sale and the sale deed executed, as null and void. This is not a case, where, clock is required to be set back. Blunder committed by the auction purchaser was that he approached the Division Bench. As such, substantive petition was not pending before the Division Bench. The Division Bench had already resolved the issue by passing orders by consent. The applicant could have approached the learned Single Judge when the spirit of the order of the Division Bench is that as the petition is pending before the learned Single Judge, till further orders that may be passed in the main petition, the parties should maintain status-quo.
17. This action of M/s. A.P. Inc was an error but it is not possible to doubt the bona fides of either Collector or M/s. A.P Inc especially when the Division Bench had passed orders under consent having effect of revival of confirmation of sale. It is submitted that anybody who is to be restituted today is the Court only. In the Civil Application preferred by the auction purchaser before the Division Bench, on page 4, it is stated that the the Collector was not paying heed to the pursuations. Civil Application was therefore, preferred in disposed of Letters Patent Appeal. Practically there was nothing in the petition on the date of the order, because, as such, parties were supposed to act in compliance with the tender form conditions. Handing over of possession of the property and execution of sale deed were subsequent consequences. Therefore, nobody, as such, who was party in the main petition was concerned except only money. Thus, none of the parties had any locus to pray for settlement of clock back merely on the ground that some irregularities were committed by the Collector as Chairman of the Sale Committee and the auction purchaser. Mr. Thakor has submitted that the auction purchaser is ready to abide by any condition that may be of penal nature as it was party to the irregularity committed of not approaching the learned Single Judge where the petition was pending, or not approaching the Division Bench of this Court for seeking clarification qua spirit of the order of the Court. The error has tempted the applicant Shalin Hotel to make allegation against the Collector and the auction purchaser. Collusion has been alleged but these allegations should not be given any weightage as submitted by Mr. Thakor, because, the petition has lived its purpose and only further order that could have been passed by the Court would be of disbursement as rest of the formalities were required to be undertaken by the Collector himself and members of the Sale Committee, if need be, and possession of the property was supposed to be given to the auction purchaser and thereafter the sale deed was required to be executed. Act of pursuation by the auction purchaser and the Collector as Chairman of the Sale Committee was not an exercise in futility. Ultimately, logical argument placed in the present case on behalf of Shalin Hotel would lead to all subsequent actions in futility. On the contrary, the admission of wrong by the auction purchaser or Collector or by both, would not impliedly make the sale deed void and the possession at present with the auction purchaser would not become unauthorized or illegal possession. When the auction purchaser has prayed for grant of apology, the prayer made by the Collector in his application should be granted saying that the auction sale is held confirmed and is treated as absolute and the deed executed in favour of the auction purchaser is declared as valid deed of sale and the same is not required to be declared void. Mr. Thakor submits that in each case of non-compliance of the order of the Court or even in case of contempt, contempt is not required to be purged and this case falls in that category. For that purpose, Mr. Thakor has placed reliance on the decision of the Apex Court in the case of Anil Panjwani reported in [2003] 7 SCC 375. It is not always true that contempt must be purged first. Here, in the present case, undisputedly, order of Division Bench was never served to the Collector. True it is that AGP had appeared during the hearing of the Civil Application moved by the auction purchaser, wherein the parties were directed to maintain status-quo. There is nothing on record to show that AGP appearing in the proceeding had conveyed about passing of the order to the office of the Collector. The Collector, obviously was aware about pendency of the Letters Patent Appeal. Letters Patent Appeal was pending and the same had reached its logical end on an invited order and the amount of consideration, in compliance with the order passed by the Division Bench, was received by the Collector. He had thereafter asked for the opinion from the office of the Government Pleader. None of these two applications nor affidavits filed in the proceedings make it clear that the AGP who was appearing before the Division Bench in the Letters Patent Appeal and/or Civil Application moved by the auction purchaser in the said disposed of Letters Patent Appeal, and the AGP who gave opinion to the Collector referred to by the Collector in his application, are different persons working in the office of the Government Pleader of the High Court of Gujarat or he was the same person. Therefore, the Collector has some valid ground to seek appropriate relief as is rightly submitted that, the Collector, as Chairman of the Sale Committee would abide by any order that may be passed including the rectification of the action taken by him after obtaining opinion from the office of the Government Pleader of the High Court of Gujarat. It would not be correct to say that the only method to undo the wrong is to declare the sale deed void and to restore possession of the property in question back to the Collector. The applicant Shalin Hotel was not a company under winding up, but in view of the totality of facts and circumstances and the nature of litigation initiated by GIIC, the Collector could have executed the sale deed alienating the right, title and interest in the property. Therefore, according to Mr. Thakor, the application of the applicant Shalin Hotel should be dismissed and the application preferred by the Collector should be disposed of by observing that sale deed executed by the Collector is not a deed which can be declared as null and void and there is no need to restore possession of the property in question back from the auction purchaser to the Collector, Chairman of the Sale Committee. It is also submitted that the Court also should observe that this is not a case where parties should be asked to undertake exercise again on condition that may be imposed by the Court, i.e., imposition of some penalty and that too without prejudice to the contempt application filed by the applicant Shalin Hotel which is pending.
18. Mr. R.D. Dave, learned Counsel appearing for GIIC [original petitioner] has submitted that the applicant Shalin Hotel has no locus. That its property has been ordered to be auctioned as the applicant was defaulter and debtor to number of financial institutions and the State Government. Mr. Dave has taken me through the substance of the prayer made by the GIIC in the main petition and has submitted that after the orders passed by the Division Bench in Letters Patent Appeal, nothing substantive was required to be done by any of the secured creditors or debtor and Shalin Hotel in reference to the execution of the sale deed in favour of the auction purchaser. The only order which was required to be passed by the learned Single Judge was of disbursement of the amount pro-rata. Ultimately, if the learned Single Judge reaches to a conclusion that the original debtor Shalin Hotel is entitled to some amount from the entire amount of consideration received, then, that amount would go to Shalin Hotel. According to Mr. Shalin Mehta, there must be rule of thumb and the violator should be taught lesson by passing order which has the effect of deterrence. As against this, say of Mr. Dave is contrary. It is submitted that ultimately, other creditors to whom Shalin Hotel was chronic defaulter, decided to join recovery proceedings initiated by the revenue authority so that they can realize their amount from the properties that may be auctioned by the Collector.
19. In response to the argument, Mr. Shalin Mehta, learned Counsel appearing for Shalin Hotel submitted that merely because sale deed has been executed on stamp papers of very high value or some construction activity has been undertaken by the auction purchaser, would not dilute the effect of wrong committed by the auction purchaser and the Collector. It is submitted that this is a case of collusion and, therefore, there should be rule of thumb and both should be held violators of the order passed by the Division Bench. It is submitted that this Court is the highest Court of the State and device of any nature should not be tolerated. It is submitted that it is a crucial question that this is a case of either negligence of AGP who expressed his opinion or he was also hand in glove and therefore, this Court should allow the application filed by Shalin Hotel and the Collector may be asked to take over possession. It is also submitted by Mr. Mehta that the auction purchaser may be directed to hand over possession of the property back to the Collector and the parties should be directed to maintain status-quo till further orders that may be passed in the substantive petition. True it is that the Apex Court has over-ruled the earlier judgment of this Court which is relied upon by the applicant Shalin Hotel, but the observations made by the Apex Court in the case of Delhi Development Authority v. Skipper Construction Co.[P] Ltd. reported in [1996] 4 Supreme Court Cases and in the case of Rafique Bibi [Dead] by LRs. v. Sayed Waliuddin [Dead] by Lrs and Ors. should be held as law applicable to the present case, is the say of Mr. Mehta for the applicant.
20. Mr.Maulik Nanavati,learned Counsel appearing for the Collector, Chairman of Sale Committee tried to explain the situation as who how and in what circumstances the present contingency has cropped up. He submitted that reasonable care was taken by the Collector before handing over possession of the property to the auction purchaser and executing the sale deed. He submitted that writ petition, being Special Civil Application No. 11524 of 2002 came to be filed by GIIC, a govt. owned Corporation because of the action of the City Deputy Collector, who had decided to auction the property of Shalin Hotel for recovery of entertainment tax being State revenue. The State may have priority amongst other creditors, but the claim of the GIIC was that they are also secured creditor and the property cannot be auctioned and sold to third party ignoring the debt of the secured creditors. It is submitted that this is a case where ratification would be more proper instead of refund of amount as the sale has taken place under the supervision and control of the Court. It is submitted that the applicant Shalin Hotel, once, had submitted to the jurisdiction of the Court and had expressed its agreement to sell the property for consideration of Rs. 15.10 crores and then auction was conducted under the orders of the Court as the notification published by the City Deputy Collector for recovery of entertainment tax was challenged by GIIC. Mr. Nanavati has drawn attention of the Court to various dates and to Clause-15 of the tender conditions. The Committee headed by the Collector as Chairman had accepted the offer and the learned Single Judge of this Court had confirmed the sale and mode of payment was also decided. Failure to pay remaining amount of 75% in time ultimately had resulted into cancellation of sale and forfeiture of 25% deposit amount which had given rise to filing of Letters Patent Appeal. By order dated 28th December, 2006, passed in Letters Patent Appeal No. 1420 of 2006, the Division Bench directed the auction purchaser to pay up the amount with interest and quashed the order of cancellation of sale passed by the learned Single Judge. According to Mr. Nanavati, thereafter, the Collector, as Chairman of Sale Committee was supposed to proceed further as per the terms of the tender. It appears that the auction purchaser in haste approached the Division Bench seeking appropriate direction to see that possession is handed over back to him as full amount of consideration was paid. In response thereof, order dated 20th February, 2007 came to be passed by the Division Bench in Civil Application No. 2426 of 2007, whereby the parties were directed to maintain status quo as the substantive petition was pending before the learned Single Judge. Unfortunately for the Collector, two different Assistant Govt. Pleaders had appeared in two different proceedings wherein two orders were passed. The Court is informed that when the first order came to be passed, Mr. Pathik Acharya had appeared as Assistant Govt. Pleader for the Collector and at the time of passing of the second order on 20th February, 2007, another Assistant Govt. Pleader Ms. Manisha Lavkumar had appeared. Civil Application was disposed of after service of advance copy to the office of the Government Pleader and as the parties were served with the copy, say of the parties was considered. On perusal of the original file of the office of the Collector and the office of the Govt. Pleader, Mr. Nanavati submitted that the Collector, as Chairman was keen to seek opinion from the office of the Govt. Pleader and had sought for an opinion. In turn, learned AGP who had appeared in the Letters Patent Appeal filed by the auction purchaser gave opinion that the Collector could proceed further. There is nothing on record to show that the Collector was served individually as party with the notice of the Civil Application moved by the auction purchaser in the disposed of Letters Patent Appeal and obviously therefore, the Collector was not aware, or was not made aware about the order of status quo. Possession was handed over to the auction purchaser on 2nd April, 2007. Thereafter, sale deed was executed on 10th May, 2007. Except one of the secured creditors, i.e., Charotar Bank, no other creditors have either signed the sale deed nor have confirmed the same. There is nothing on record to show that representative of Charotar Bank who had signed the sale deed as witness was aware about the order of status-quo or he had intimated the Collector about the order of status-quo passed by the Division Bench. The Court should look to context of the prayer and if the Court is of the view that Collector has not defied the order of the Court though he was aware about the existence of the order, he may not be held responsible for any wrong committed deliberately or with an intention to defy the order of the Court. However, Mr. Nanavati has fairly submitted that if the Court is of the view that there is some negligence on the part of the office of the Govt. Pleader and/or Collector, or City Deputy Collector, then, they may be criticized and any word that may fall from the Court shall be conveyed to the concerned officer including the Collector. He submitted that State can even get affidavit of the then Collector concerned and explain the exigency to submit to the Court that she was not aware about the existence of the order of status quo passed by the Division Bench, but having regard to the dates and the fact that two different Assistant Govt. Pleaders had appeared in both these proceedings, it would be harsh to infer against the then Collector concerned. At the most, it can be said that she ought to have acted slowly in executing the sale deed. When the Collector came to know when he received the bill of the AGP who had appeared in the Civil Application moved by the auction purchaser, immediate actions thereafter were taken and the auction purchaser has been forced not to proceed further with any construction work etc. Thus, this shows bona fides of the office of the Collector. According to Mr. Nanavati, even the City Deputy Collector was also not informed by the learned AGP specifically about the order of status quo passed by the Court immediately after the orders were passed and therefore, communication gap has created this situation between two AGPs, so also between the office of the Government Pleader as well as Collector. The AGP who gave opinion on 28th March, 2007. was aware about the papers that were there up to December, 2006. The Collector immediately took steps and put a specific note and the relevant revenue record so that there cannot be further transfer of the property. According to Mr. Nanavati, this is a case where the Collector can be said to be the person responsible for not acting with utmost care and diligence. But this is not a case of negligence on the part of the Collector or of act done by him in defiance of the order of the Court. When there is no allegation against any of the AGPs that they were hand in glove with the auction purchaser and the office of the Collector, then, the Court, by passing strictures against the Collector and imposing reasonable cost or penalty, may ratify the action of the Collector.
21. Mr. Satyam Chhaya, learned AGP appearing for the City Deputy Collector submitted that City Deputy Collector was not aware about the status-quo granted by the Division Bench. This situation has perhaps cropped up as the application was disposed of with service of advance copy of the application to the office of the Government Pleader. This error does not appear to be the result of either action or inaction of one person or an officer individually. Assistant Govt. Pleader appearing during the hearing of Civil Application as well as other secured creditors, perhaps were responsible for not communicating even to the City Deputy Collector, who was directly concerned being publication of the notification for sale of the property in question. Therefore, cost for taking action without due care and diligence can be awarded and the Court can pass censure against the officers. According to Mr. Chhaya, it is not the say of either City Deputy Collector or any other secured creditor that prior to execution of the sale deed, any formal meeting was convened. There was no need to convene a meeting. Merely because it was possible for the Collector to convene the meeting before execution of the sale deed, is not sufficient for jumping to a conclusion that such meeting was necessary and therefore, it was convened and the Collector, secured creditors as well as City Deputy Collector are suppressing the outcome of the same and the true facts are not being put before the Court. When sale was confirmed by the order passed on 28th December, 2006, rest of the steps were to be taken by the Chairman of the Sale Committee i.e., Collector and he was the officer authorized to execute the sale deed. Merely because it is not stated specifically that no meeting was convened, it would not be proper to infer that meeting must have been convened. Applicant Shalin Hotel itself is not sure about convening of such meeting otherwise, reasonable evidence could have been produced with allegations by the applicant that meeting was convened on particular date and at particular time and the Committee had made some deliberations and minutes were drawn. As per condition No. 13,vendor, i.e. the Collector was to execute the sale deed. No secured creditor was required to call for the meeting. Copy of the sale deed is produced on the record. Covenant takes care of any adverse contingency of the deed. If there would have been a meeting, then, there could have been reflection of that meeting through covenant. It is therefore submitted that the Civil Application filed by Shalin Hotel may be disposed of by passing appropriate orders that may meet the ultimate ends of justice.
22. Having considered the relevant documents, affidavits filed and the contents of both the applications vis-a-vis earlier relevant proceedings, namely, Letters Patent Appeal preferred by the auction purchaser and Civil Application moved, it would be appropriate to say that the act of execution of sale deed by the Collector in favour of the auction purchaser is seemingly not in conformity with the directions given by this Court to maintain status-quo. But the crucial questions before this Court are that what order would meet the ends of justice; [i] whether act of handing over possession of the property to the auction purchaser and the deed executed in his favour should be declared void and auction purchaser should be asked to hand over possession back to the District Collector and; [ii] whether this is the only way legally open for restitution. The applicant Shalin Hotel in its application in para 16 has prayed for the following two main reliefs.
[A] Your Lordships may be pleased to direct the present opponent No. 8 A.P. Inc to hand over the possession of the demised property to the present opponent No. 9 District Collector, Ahmedabad forthwith;
[B] Your Lordships may be pleased to pass a cease and desist order to restrain the present opponent No. 8 M/s. A.P. Inc from constructing on the demised property or in any other manner dealing with the same;
Relief [C] is in reference to the production of minutes of Sale Committee held prior to execution of sale deed but as discussed earlier in absence of satisfactory evidence, no formal orders are required to be passed qua relief [C]. Relief [D] is not pressed as mentioned earlier by the applicant. Therefore, say of the parties, obviously, shall have to be considered in reference to the background of the reliefs prayed for in both the applications.
Arguments of Mr. Soparkar advanced on behalf of applicant Shalin Hotel, if are appreciated in totality of the facts and circumstances, it emerges that for accepting say of Shalin Hotel, this Court will have to draw certain inferences and on some conjectures only, finding can be recorded in favour of Shalin Hotel so that the applicant Shalin Hotel can be granted above mentioned two reliefs. Backbone of argument of Mr. Soparkar is that as the counsel for parties were present during the hearing of the Letters Patent Appeal which was filed by the auction purchaser and which was heard and decided by the Division Bench, and as the appeal was disposed of on an invited order or order passed on consent, then, the order passed in Civil Application No. 2426 of 2007 on 20th February, 2007 also should be construed to have been passed with the consent and assent of the parties including the auction purchaser before the learned Single Judge where substantive petition was pending and this is indicative of mala fide. True it is that the auction purchaser himself ought to have informed the Collector that order of status-quo has been passed by the Division Bench. Even then, he is pursuing for handing over possession and execution of sale deed. This inaction is a conduct which goes against the auction purchaser. But, this by itself, does not establish that the Collector was aware or was informed about the order of status quo, even then, in collusion with the auction purchaser, action of handing over possession and property in question was taken by the Collector and thereafter, he executed the sale deed. There is enough force in the argument of Mr. Chhaya and Nanavati that disposal of Civil Application preferred by the auction purchaser decided at admission stage and that too on service of advance copy, and the fact that two different AGPs had appeared in two different proceedings, that is, Letters Patent Application and Civil Application filed in the said Letters Patent Appeal, has created this situation and the Collector ultimately decided to hand over possession to the auction purchaser and execute the sale deed.
Now, these two actions of Collector of handing over possession and executing the sale deed, if are found otherwise in accordance with the terms of conditions of sale, then, it would not be either proper or justified to say that these two actions are null and void as the parties were directed to maintain status-quo keeping in mind the pendency of the substantive petition before the learned Single Judge. In letter and spirit, the parties were relegated to the learned Single Judge in the background of the nature of the reliefs prayed for in the Letters Patent Appeal decided earlier. The Letters Patent Bench was approached by the auction purchaser only because sale was treated as cancelled on failure to make payment of 75% amount within the period stipulated by the Court and the Division Bench was ultimately able to find a way out as the stake was very high and 25% amount was under the threat of confiscation. The Division Bench ultimately decided to give an opportunity to the auction purchaser by asking him to pay the amount of interest more than the prevailing rate of interest. The auction purchaser ultimately accepted the way suggested by the parties. Plain reading of the order passed by the Division Bench as rightly referred to and relied upon by Mr. Mihir Thakor, makes it clear that the order was practically invited order and at least, applicant Shalin Hotel had never disputed the leeway carved out by the Division Bench to see that ultimate ends of justice are prevailed. Mr. Shalin Mehta agrees to this argument that at that particular moment, the applicant Shalin Hotel was not at all aggrieved and was not also interested in getting the sale cancelled, because, applicant Shalin Hotel was to get reasonable right of interest for delayed payment. But the say of Shalin Hotel is that when this very auction purchaser had decided to approach the Division Bench again by moving Civil Application, then, he ought not to have either colluded with the office of the Collector and other secured creditors or, at least, ought not to have misled the Collector so that he can get possession of the property and the sale deed executed. The auction purchaser, all other secured creditors, Chairman of Sale Committee and District Collector have committed deliberate defiance and on this sole count, sale deed requires to be declared as void to establish the dignity of the Court. There must be element of deterrence in the order and only then, true message would go to the Society and therefore, the action of this Court should be exemplary. Regularizing sale by condoning wrong on the contrary may tempt other litigating parties to take orders of the Court casually or lightly. But it is difficult for the Court to express total agreement with this submission.
Observations of this Court in the case of Mafatlal Industries Limited [supra] referred to hereinabove and the ultimate findings recorded therein would not help the applicant Shalin Hotel much. Facts in the said case were materially different. The Division Bench was dealing with the Cross Objections filed in O.J. Appeal No. 16 of 1994 in Company Petition No. 22 of 1994 and the controversy was in reference to alleged allotment of shares of Company 'A' in breach of prohibitory order of injunction issued by the City Civil Court, Ahmedabad and its resultant effect as to participation in the meeting called by the company on such unauthorizedly issued shares. The observations made by the Division Bench in the said judgment do not lay down ratio nor is it possible for this Court to say that the above referred observations are binding observations. In response to the query raised by the Court during the course of oral submissions, Mr. Soparkar fairly accepted that this Court, at least, can look to the observations as a guideline. It is difficult for me to accept this submission also, because, these observations are made in reference to case-law discussed and the fact that one another party was in great need of restitution of the right or privilege violated on account of breach of the order of the High Court. The second reason is that while reversing the order of Division Bench in case of National Organics Chemicals v. Mafatlal Industries reported in 2004 [121] Company Cases, 519, the Apex Court has observed that the Court below, that is, Division Bench of this Court, while passing the impugned order has gone far beyond their jurisdiction by giving findings as to the validity of shares acquired by the appellant in the said case. Therefore, in view of the fact that the judgment, which is found by the Apex Court going far beyond the jurisdiction, it would not be possible for this Court to say that these observations would provide guideline, more particularly, in the background of facts of the present case. The Apex Court observed in the above said decision that;
This issue as to violation of injunction order or any other issue pertaining to the validity of title of the shares transferred in favour of the appellant by MIL, is a matter, if at all, to be decided by city civil court in the pending suits if it arises for consideration and therefore, we allow the appeal and set aside the finding impugned in the appeal.
It is settled that the Court is supposed to decide the issue if the Court is asked to decide it keeping in mind the facts and the relevant law. When the Division Bench was dealing with the issue in the O.J. Appeal, it was supposed not to deal with the point which was dealt with by the Division Bench by referring to number of judgments. Therefore, the Apex Court has said that the lower court has gone beyond the jurisdiction. True it is that, the appeal was allowed by the Apex Court on the ground of violation of principles of natural of justice, but it is difficult for me to accept that as the appeal is allowed on altogether different point, rest of the finding can still be considered by this Court as relevant observations. Unless the Court is answering the point at issue and is requested or asked to deliver a finding on that particular issue, then, while doing so, if any observations are made, it can be said that the same also have binding force. It is rightly submitted by Mr. Thakor that discussion made by the Division Bench relying on number of decisions in case of Mafatlal Industries Limited [supra] would not help the applicant Shalin Hotel provided Shalin Hotel is capable of satisfying this Court that it being original owner of the property requires to be restituted by putting the clock back. The order passed by the Division Bench while disposing of the Letters Patent Appeal No. 1420 of 2006, after quoting para-16 of the order under challenge has said thus;
In the present appeal, same prayer has been made by the appellant and during the course of hearing, it was submitted that he is prepared to deposit the entire balance amount along with interest at 12% per annum payable from 2nd July, 2006 till payment is made. Accordingly, direction was given to the appellant to deposit the amount with interest by 20th December, 2006, which was however, extended till 26th December, 2006.
Learned Counsel for the other side confirms that now, the appellant has deposited the balance amount along with interest at the rate of 12%, with the Collector. The other respondent parties in the appeal have no objection in case amount is accepted against the sale of the property in question.
Considering the submissions of the appellant and other learned Counsel for the parties and the fact that the balance amount along with interest has been deposited with the Collector and that fact has not been controverted by the learned Counsel for the respondents, we are inclined to set aside the impugned order of the learned Single Judge dated 25.9.2006. Order accordingly.
Consequently, appeal is allowed.
23. Thus, the order of cancellation of sale came to be quashed and therefore there is enough force in the argument advanced by Mr. Mihir Thakor appearing for the auction purchaser that the order of confirmation of sale can be said to have survived by the appellate order, meaning thereby, from that relevant date, action can be said to have been held confirmed on the consent of the parties. Therefore, how possession of the property should be handed over and when sale deed should be executed, was not matter of concern to the secured creditors and others including City Deputy Collector and mainly property owner Shalin Hotel. Shalin Hotel was party before the Division Bench and it is rightly submitted that there was no reason for Chairman of the Sale Committee to delay the process and of handing over possession of execution of sale deed. As nothing was getting crystallized, the auction purchaser had approached the Division Bench which may be considered to be a mistake on the part of the auction purchaser. The Division Bench, while dealing with the Letters Patent Appeal was evaluating the legality and validity of the order of cancellation of sale confirmed earlier and confiscation of amount deposited by the auction purchaser. The nature of relief prayed by the auction purchaser in Civil Application was materially different and beyond the scope of original appeal disposed of earlier. The Division Bench, while disposing of the Civil Application has said thus;
Though, the order of the learned Single Judge was challenged, we have directed the appellant to deposit the balance amount of sale proceeds along with interest at the rate of 12% per annum. That direction has been complied with by the appellant but that does not mean that we have directed the respondents to hand over possession of the property on deposit of that amount, especially, when the main petition is pending before the learned Single Judge, that will be decided finally in accordance with law. Till disposal of the petition, status quo be maintained.
The application stands disposed of accordingly.
Thus, the Division Bench has said that when the main petition is pending before the learned Single Judge, he has to decide the things finally and in accordance with law. Plain reading of this order clearly gives an impression that if the applicant in the said application is interested in getting possession, or wants any direction against the Chairman of Sale Committee, then, he should approach the learned Single Judge, where the petition is pending and till disposal of the petition, the parties, including the auction purchaser also should maintain status-quo. The auction purchaser, therefore, may not venture to enter the property in question voluntarily, being a successful bidder on the strength of the order passed by the Division Bench, confirming the sale. Instead of moving the learned Single Judge for appropriate reliefs against the Chairman of the Sale Committee, the auction purchaser moved the Division Bench.
Having considered the rival contentions made in this factual contingency, it is necessary to observe that impliedly Mr. Thakor has attempted to submit that instead of approaching the learned Single Judge in light of the order passed by the Division Bench, it started pursuing sale committee and more particularly, Collector who was the Chairman of Sale Committee so that he could be put in to possession at least, as per condition No. 15 of the tender form referred to herein above. Undisputedly, sale was confirmed and after cancellation of that sale, Division Bench quashed and set aside that order of cancellation of sale. All the parties including the applicant Shalin Hotel had readily agreed to accept the amount of consideration and immediately on receipt of amount, the Collector was supposed to hand over possession of the property in question to the auction purchaser. No condition was ordered to be imposed either by Division Bench or by the learned Single Judge for handing over possession of the property in question. I am told that at present, construction activity undertaken by the auction purchaser has been stalled because of the pendency of the present application preferred by the Collector and Shalin Hotel. It is also necessary to observe that there was no need for the auction purchaser to move the Division Bench for direction. Either he would have approached the learned Single Judge if the auction purchaser was not getting proper response from the office of the Chairman of Sale Committee or other secured creditors, or to pursue the Chairman of Sale Committee, that is, the Collector to do the needful at the earliest as the amount of Rs. 15.10 crores was paid by him. Having regard to the fact that the day, that is, on 2nd April, 2007 on which possession was handed over and the sale deed was executed on 10th May, 2007, at the most, it can be said that these two actions were not in conformity with the desire or wish expressed by the Division Bench while disposing of the Civil Application moved by the auction purchaser. Forcible entry of the auction purchaser in the property would have made him liable for strong penal action, but according to me, even after passing of the order by the Division Bench in Civil Application on 20th February, 2007, two courses were open for the auction purchaser; first to approach the learned Single Judge to issue direction to the Collector to put him into possession and to execute sale deed and [ii] to pursue the Collector again to hand over possession and to execute the sale deed in his favour, being the auction purchaser as per conditions of sale. Terms and conditions of sale in the nature of tender form are available on the record. It would be relevant to reproduce condition Nos. 10,11,13 and 15 being more relevant for the purpose of this order. The same are as under:
10. APPLICABLE ONLY ON SALE OF LAND [11 TO 13] The Purchaser:
a. shall procure himself the transfer of land by a Deed of Conveyance.
b. shall obtain water, electricity, telephone connection and all other necessary amenities required by them at their cost.
c. shall obtain all other necessary permission/quotes, if any, as may be required, at their own cost and consequences.
The stamp duty, registration charges, AMC/Society charges and all other incidental charges thereto shall be borne by the purchaser.
xxx xxx xxx xxx The property will be conveyed and assigned to the purchaser by the vendor who alone will execute the documents, if any, in favour of the purchaser. The purpchaser shall not require the concurrence in such documents of any other person or persons. The vendor is selling the property as the sale committee attached to the Hon'ble High Court of Gujarat pursuant to the directions of the Hon'ble High Court in the matter and as such will not give any warranty or indemnity of any kind, whatsoever.
xxx xxx xxx The properties shall be handed over to the purchaser on payment of full sale price to the sale committee and/or subject to such directions as the Hon'ble High Court may issue in the matter.
24. Property was to be handed over therefor to the auction purchaser on payment of full sale price to the Sale Committee and/or subject to such directions as the Hon'ble Court may issue in the matter. Undisputedly, the property was being sold on the consent of the property owner, that is, Shalin Hotel as well as other secured creditors and City Deputy Collector. Substantive petition which was pending before the learned Single Judge was filed by GIIC. Mr.R.D. Dave, learned Counsel appearing for GIIC has submitted that GIIC is not aggrieved at all with the action taken by the Collector as Chairman of Sale Committee, nor by the attempt of the auction purchaser to get possession of property at the earliest and he would not have insisted for imposition of any condition at the time of handing over possession of the property in question. Anxiety of GIIC would be that the amount is disbursed by the Chairman of the Sale Committee at the earliest on completion of formality of sale. So far as the conveyance of sale is concerned, the matter was not required to be referred to the learned Single Judge back. Normally, possession is handed over simultaneously along with registration of execution of sale deed or conveyance or thereafter. Here, the auction purchaser was interested in possession of the property as he had already paid the amount of consideration as ordered earlier by the Division Bench on consent of the parties. The Collector, being vendor was supposed to execute the sale deed. The condition itself reads that the property will be conveyed and assigned to the purchaser by the vendor who alone will execute the document, if any, in favour of purchaser. It appears from the record and it is necessary to repeat the things stated hereinabove while recording oral submissions of the learned Counsel that, the Collector had failed in conveying the sale deed immediately on receipt of the amount nor had cared to hand over possession. There was no reason even for the Collector to seek opinion of the Asstt. Govt. Pleader or Government Pleader, but for best reasons known to the then Collector, the Collector had attempted to seek opinion. However, it would not be proper for the Court to jump to a conclusion that as the Collector was aware about the order of status-quo passed by the Division Bench, he sought for opinion from the office of the Govt. Pleader so that at least, she can stigmatic comment or any action that High Court may taken on account of defiance. As the stake was high and the matter was taken upto the Division Bench by the auction purchaser himself, the Collector may have thought it fit to call for opinion. The decision of the Collector seeking opinion from the office of the Government Pleader raises a doubt that there may be some collusion and she did so as part of such collusion, between her office, auction purchaser and other secured creditors keeping herself away from allegation. But there was no need to collude. Nobody had right to resist the execution of sale deed in favour of the auction purchaser, because, that stage had reached at the consent or assent of all the parties including the applicant Shalin Hotel. This allegation is thus ruled out.
25. Nobody was required to redress the parties who were before the learned Single Judge in a petition filed by GIIC. All secured creditors when have jointly submitted to the Court that possession has been rightly handed over to the auction purchaser and sale deed has also been rightly executed by the Collector as vendor alone, it is difficult for this Court to say that the act of the Collector can be held to be null and void merely on the count that the auction purchaser had failed in informing the Collector that there is an order of status-quo passed by the Division Bench and that status-quo position has to be maintained till further orders that may be passed by the learned Single Judge in the substantive petition. Two different AGPs had appeared in two different proceedings. Collector or City Deputy Collector were never served with the copy of order of status-quo. There is nothing on record to show that any of the parties had taken service of this order of status-quo qua these two State officers and as such, no haste was made by the Collector in handing over possession to the auction purchaser. On the contrary, this takes me to the conclusion that this is a case of absence of due care and diligence on the part of the office of the Collector. Undisputely, opinion of the AGP who had appeared in the Letters Patent Appeal was sought and the same was given on 28th March, 2007. Possession of the property was given on 2nd April, 2007. Learned Counsel Mr. Nanavati has offered for perusal the entire file including the correspondence that had taken place between the office of the Collector and the office of the AGP, so also about the meeting convened earlier of secured creditors during the entire exercise. He has fairly disclosed the names of both AGPs including the AGP who had given opinion to the Collector. Execution of deed of conveyance, obviously has taken time and same is found executed on 10th May, 2007. If any element of collusion was there, then, possession could have been handed over on the next day on which Collector was made aware about the opinion and sale deed also could have been executed immediately apprehending something wrong from any of the parties who were present before the learned Single Judge. Perhaps, before the learned Single Judge, the property owner Shalin Hotel had no locus to object contemplated action which was required to be performed as per condition of sale as the order of confirmation of sale was passed under his consent along with other creditors.
26. As such, on the date of moving of the application by the Collector or Shalin Hotel-original owner of the property, no stake can be said to have been involved. The property was ordered to be sold and ultimately, it was sold. Embargo that had cropped up was removed by the order of the Division Bench passed in the Letters Patent Appeal. Therefore, if both the applications are read in their letter and spirit, then, they remain applications moved to see that prestige of the Court is established. Restitution as party aggrieved is not claimed and if it is found claimed, then, such claim is found sustainable in view of the above set of facts. Only party who is entitled to restitution on account of breach of order of the Court can pray that clock requires to be set back or status-quo ante may be ordered. Normally, while dealing with such applications, it is rightly submitted by Mr. Thakor, that the Court should try to seek presence of three basic elements, namely, that, [i] This is a case where the prestige of the Court needs to be established; [ii] There is need to restitute right of a party which is found violated on breach of order of the Court or in compliance of the order of the Court and; [iii] Order should deter the parties and the society. Considering the facts of the present case and the nature of reliefs prayed, I am of the view that there is no need to set the clock back. Establishment of prestige of the Court is found necessary by putting the element of deterrence, because, at the most, in the present case, prestige of the Court is required to be established. There is neither any justification nor any need of restitution, because, as such, nobody's right from the purpose of the Court is required to be restituted. The party aggrieved, shouting from the rooftop is the owner of the property, that is, Shalin Hotel. It is submitted that till date of execution of sale deed, Shalin Hotel was the owner and till it is the owner of the amount of consideration and is entitled to get excess amount after settling the so-called claims of the secured creditors. When it is not the say of the applicant Shalin Hotel that it would have prevented the act of handing over possession by any legal means or order, then, it will not be proper before this Court to say that sale deed should be declared null and void. At present, substantive petition is pending before the Division Bench. Learned Single Judge. However, while dealing with both these applications, it is legally possible for the Court to ratify the action of the Collector of handing over possession of the property to the auction purchaser and the act of execution of the deed.
27. If ratification is ordered, whether it would encourage the litigant to defy order of the Court is also one of the moot questions which needs to be addressed. In more than one decisions, and even in case of contempt of court, the Apex Court has observed that it is not rule of law and certainly not statutory rule that contemner cannot be heard unless contempt is purged. It has only developed as a rule of practice for protecting sanctity of the Court proceedings and the dignity of the Court that a person who is prima facie guilty of having attacked the Court may be deprived of right of participation in the hearing lest, he should misuse such opportunity unless he has agreed to disarm himself. Of course, in the case of Anil Panjwani reported in [2003] 7 Supreme Court Cases, 375, the Apex Court took up the case suo motu in reference to Articles 129 and 215 and provisions of Contempt of Courts Act, 1971. Here, in the present case, no restitution is required of any of the parties who was there before the Court in the proceedings of Letters Patent Appeal or substantive petition pending before the learned Single Judge. Its declaration of sale deed as void is not only the way to come down heavily for non-compliance of the order of the Division bench in stricto senso. In para-12 of the application filed by the Shalin Hotel, it is stated that before the execution of the sale deed on 10th May, 2007, Sale Committee must have met. It is also assumed by the applicant Shalin Hotel that the District Collector may not have been informed about the order dated 20th February, 2007 passed by the Division Bench in Civil Application No. 2426 of 2007, but at least, other members of the Sale Committee, that is, secured creditors would have been aware of the said order and if this order was known to all the secured creditors, it is surprising that the sale in favour of the auction purchaser was allowed to proceed despite of prohibitory order. If the entire proceedings are taken in to consideration from the day on which the City Deputy Collector published a notification for sale of property of Shalin Hotel till 20th February,2007 including the pleading and orders passed in the period in between, the directions given by the Division Bench to maintain status quo till disposal of the substantive petition do not have the effect of strict prohibition. As discussed earlier, order, if read in its entirety with the earlier order passed by the Division Bench, it shows that the Division Bench has simply confirmed the sale and no further orders have been passed especially when the substantive petition was pending before the learned Single Judge. Therefore, it would be in the fitness of things that parties should maintain status quo. Therefore, on the strength of the order passed by the Division Bench, the auction purchaser may not venture to enter the property purchased by him on the ground that he has complied with the direction to pay the entire sum of consideration with interest. Thus, there were two things; pendency of petition, and the Chairman of Sale Committee was supposed to hand over possession and execute sale deed. Such orders, if are required to be passed, then, the same can be passed in the main petition. The petition may come to an end, perhaps on resolution of interse dispute of secured creditors as to their respective claims. There is ample scope even for the applicant Shalin Hotel to say that the claim of the secured creditors is not legitimate being excessive and the same is based on wrong calculation. It is also possible for Shalin Hotel to say that under particular scheme, it being debtor is not required to pay the entire claim of the secured creditors and as debtor, is entitled to certain concessions on settlement. Therefore, the petition may come to an end after a very long period and on the day on which the Division Bench disposed of Civil Application asking the parties to maintain status=quo, there was no conflict of interest between the auction purchaser and rest of the parties including the applicant Shalin Hotel. Whether Shalin Hotel could have objected legitimately when the amount of consideration was paid and accepted to its satisfaction, to the act of Collector of executing sale deed and complying with the condition No. 13 which contemplates handing over of possession on payment of purchase price. The answer obviously would not be positive. In this fact situation, the Court is of the view that as such, order to maintain status quo was not inflicting legal disability on Sale committee or Chairman of Sale Committee, under which, he would not have even complied with condition of sale as per the tender form merely because the petition filed by one of the secured creditors seeking particular relief was to remain pending. It is necessary to give a look to the two substantive prayers made in the main petition being Special Civil Application No. 11524 of 2002 in para 8[A] and [B]. The same read as under:
[A] This Honourable Court may be pleased to issue writ of mandamus, and/or any other writ, order or direction to quash and set aside the impugned Notification dated 30.9.2002 with press note both, at Annexure-A collectively, issued by respondent No. 2;
[B] This Honourable Court may be pleased to issue writ of mandamus and/or any other appropriate writ, order or direction, declaring the action of respondent No. 2 in publishing notification dated 30.9.2002 and press note regarding auction of assets of respondent No. 6 which are under charge with the petitioner by way of equitable mortgage and pari pasu arrangement with respondent No. 3 to 5 as illegal, unjust, improper and bad in law; and further be pleased to declare that respondent No. 2 has no authority under law to auction the property of respondent No. 6 under charge with the petitioner by way of equitable mortgage;
28. Thus, the original petitioner GIIC ultimately had challenged the notification published by City Deputy Collector dated 30th September, 202 declaring that property of Shalin Hotel is placed under auction to recover the govt. dues. Therefore, when the actions of Collector otherwise are found consistent with the process of sale adopted and conditions of sale, the Court is of the view that present one is not a case where the Court cannot effectively proceed further in the main petition and dispose it off on merit unless sale deed executed by the Collector is declared void and possession to Sale Committee is restored. Mr. Mihir Thakor, learned Counsel appearing for the auction purchaser fairly accepted that some wrong somewhere has been committed. It may be a mistake or wrong committed and the auction purchaser, at least, was aware about the order of status quo and failed to inform the Collector about the nature of the order passed by the Division Bench in Civil Application preferred by the auction purchaser himself. Therefore, to establish the dignity of the Court, any cost, that too, without prejudice to the rights and contentions of the party-applicant of the contempt proceeding initiated by the independent applicant, this Court can ratify the sale and action of the Collector of handing over possession. The Court is informed that if such order is passed, the auction purchaser is ready to pay whatever amount that may be awarded as cost or penalty by the Court. This would deter the auction purchaser and other secured creditors for not informing the Collector about the order of status quo and the members of the society at large and as such, it would meet the ends of justice. Initial preparations to start construction work have been made and setting back the clock may result into serious prejudice, inconvenience and hardship and therefore, appropriate orders ratifying the order of Collector are required to be passed. In this regard, a certificate issued by one Chartered Engineer Shri Ramesh Pangasa is produced showing that activity of structure strengthening of Shalin Hotel had begun and foundations are exposed for strengthening work and therefore, the work requires to be completed as soon as possible apprehending heavy rain and mild earthquake. Therefore, restoration, if ordered, is likely to result into some accident and loss of property.
29. It is not necessary to demonstrate the nature of frustration that parties are likely to suffer including the secured creditors, whose money have been received by the Chairman of the Sale Committee including the auction purchaser. By reason of fact, actions of handing over possession and execution of the deed of conveyance otherwise were to follow as per two main conditions of sale.
30. Two errors appear to have been committed by the auction purchaser; one of approaching the Division Bench instead of moving the learned Single Judge before whom the substantive petition was pending and second of not informing the Collector about the order of status quo passed under the application preferred by him. He took the third way that was otherwise available to him, but this third mode adopted by the auction purchaser was non-disclosure of existence of order of status quo passed by the Division Bench. Third mode adopted by the auction purchaser was not wrong or incorrect, but the act of suppression by the auction purchaser and other secured creditors has adversely affected the dignity of the Court and defiance of the existing order.
31. The Court is not satisfied with the explanation given by other secured creditors that none of them had signed the sale deed nor were they present at the time when the possession was handed over to the auction purchaser and therefore, they are not responsible for committing any wrong. Representative of one of the secured creditors, that is, Charotar Nagrik Cooperative Bank Limited [under liquidation] as observed earlier, has signed as witness in the sale deed registered and therefore, he or other secured creditors may not be held to be responsible to have committed any contempt. But it is certain that they being members of the Sale Committee have failed in intimating the Collector about the existence of order of status-quo and therefore, they also should be held partially responsible for the situation which has resulted into breach of the order of status-quo passed by the Division Bench. This inaction on the part of the secured creditors has contributed in creating ultimate situation which has resulted into defiance of the order of the Division Bench of this Court. Therefore, the parties who are directly or indirectly responsible can be made liable to pay penalty irrespective of the pendency of the contempt proceedings initiated by the owner of the property, while ratifying the act of the Collector, as Chairman of the Sale Committee, of handing over possession and execution of sale deed, because, ultimately, Chairman of the Sale Committee can be said to have acted on behalf of the Committee. It would not be either legal or logical to accept that any wrong or to say that some wrong has been committed by the District Collector only.
32. Here, it is necessary to observe that the wrong pointed out by Shalin Hotel is a civil wrong and not a criminal wrong and this civil wrong pointed out by the applicant Shalin Hotel is not found to be of very grave nature as none of the parties can be said to have suffered on account of non-compliance of the order passed by the Division Bench. When no restitution is warranted in the present case, gravity of wrong gets reduced and therefore, the decision, relied upon by Mr.Soparkar for Shalin Hotel, would not help the applicant in securing relief prayed for in the application preferred by it.
33. It has emerged that the Collector, at the time of executing sale deed on the strength of the opinion expressed by the learned AGP may not be aware about the order of status-quo granted by the Division Bench and the learned AGP, who expressed the opinion also may not be aware on account of the communication gap between the two AGPs who had appeared in two different proceedings on two different occasions before the same Bench as there is some gap of time in between.
34. Say of Mr. Maulik Nanavati, learned Counsel for the applicant Collector is also found transparent. He has fairly accepted that the action on the part of the City Deputy Collector and the Collector, is seemingly contrary to the directions given by the Division Bench and if these officers are censured, then, he shall convey the feeling of the Court. The Court is of the view that the City Deputy Collector was one of the officers who had initiated action to recover govt. dues and if the govt. officer is found to have done something wrong contrary to the order of the Court, then, he also can be fastened with the liability to pay penalty. Ultimately, the Court is supposed to see that dignity of the Court is restored and no defier can boast that he can take the order of the Court casually.
35. The Court is of the view that it is not necessary for the auction purchaser to approach this Court for ratifying the action taken by the Collector and other secured creditors under the Chairmanship of the Collector, of handing over possession of the property to him. It is also not necessary for him to seek a relief that the sale deed executed in favour of the auction purchaser may be held legal and valid deed of sale. Merely because this Court could have ordered that the deed is voidable and the possession of the property, at least, once may be restored back to the Collector or City Deputy Collector, would not make him party under obligation to approach this Court for seeking appropriate relief.
36. The application of Shalin Hotel, is not accepted as it is as prayed and submissions made by Mr. Nanavati and Mr.Chhaya on behalf of the Collector and the City Deputy Collector respectively, and the submissions made by Mr.Thakor are found acceptable, and the Court can ratify the sale deed executed in favour of auction purchaser and no status-quo ante is required to be ordered.
37. In view of the above, prayer made by the applicant Shalin Hotel in para 16[D] in Civil Application No. 1585 of 2008 is required to be quoted here. The same reads as under:
[D] Your Lordships may be pleased to hold the present opponent No. 8 M/s. A.P.Inc in contempt of the order dated 20.2.2007 passed by the Division Bench of this Hon'ble Court in Civil Application No. 2426/2007 in Letters Patent Appeal No. 1420/06.
38. The applicant Shalin Hotel is permitted to continue with the above relief[D] as application in this regard has been preferred. Prayers 16[A] and [B] made in the Civil Application No. 1585 of 2008 are hereby rejected and say of Mr. Nanavati, appearing for the applicant-Collector, is partly accepted.
39. The Collector, as Chairman of the Sale Committee has prayed for issuance of appropriate orders or direction to the applicant, which prayer requires to be accepted. The acts of handing over of possession of the property to the auction purchaser and the execution of sale in his favour are hereby ratified on condition that the then Collector within 30 days from today, shall express her regrets in writing as Chairman of the Sale Committee that her office and subordinates ought to have acted with due care and diligence and the office of the Collector shall take more care and act with more diligence in future in such or similar cases.
40. Rule 2A of Order 39 of the Code of Civil Procedure provides for consequences of disobedience of breach of injunction, meaning thereby, any order having effect of prohibition or mandamus, and the Court is authorized to award compensation as it thinks fit to the injured party. Here, no party can be said to have sustained injury or loss. Only dignity of the Court is required to be established and therefore, appropriate orders, if passed, can serve the purpose.
41. All Secured creditors including the City Deputy Collector, being responsible of not putting true fact situation before the Collector, are asked to pay Rs. 1.00 lakh each, meaning thereby, while passing the order of disbursement, all of them should be paid Rs. 1.00 lakh less and this amount should be credited to the State coffers as amount recovered as cost imposed against them. The auction purchaser and all the secured creditors shall file written undertaking before the Court that they shall comply with this order in letter and spirit.
42. Auction purchaser, being the person responsible for not intimating the Collector about the existence of the order of status-quo granted in the application preferred by him shall pay Rs. 10.00 lakhs as cost/penalty, because, it is more responsible for suppression of existence of the order of the Court, whereby the parties were directed to maintain status-quo and it shall deposit this amount with the Registry of this Court. Unless this amount is deposited by the auction purchaser, he is prevented from proceeding further qua construction activity including the activity of strengthening of the structure. The City Deputy Collector shall see that no activity takes place till the amount of Rs. 10.00 lakhs is deposited with the Registry of this Court and the auction purchaser shall maintain status quo of condition of the property as on today till the amount of Rs. 10.00 lakhs is paid. It is clarified that the moment the amount of Rs. 10.00 lakhs is paid by the auction purchaser, the auction purchaser can proceed further with the activities if the auction purchaser is otherwise authorized to carry out such activities in accordance with the relevant laws as to the permission etc. If any of the secured creditors, including the City Deputy Collector fails in filing written undertaking as ordered, then, at the time of disbursement of amount, amount of Rs. 1.00 lakh each, may be deducted from the amount payable to such creditors and this amount thereafter shall be credited with the Registry of this Court by the Collector as Chairman of the Sale Committee.
43. Failure to comply with the present order and directions by any of the parties, mainly, auction purchaser, shall give rise to a cause to the owner of the property, i.e. Shalin Hotel and/or to the Court to suo motu take appropriate steps to see that the dignity of the Court is established and at that relevant point of time, appropriate further orders, if need be, shall be passed.
44. Civil Application No. 12417 of 2007 is partly allowed. Civil Application No. 1585 of 2008 is rejected in terms as recorded hereinabove.
45. Both these applications are ordered to be disposed of in the above terms. Rule is partly made absolute in Civil Application No. 12417 of 2007. Rule is discharged in Civil Application No. 1585 of 2008 in above terms. Order and direction accordingly.