Allahabad High Court
Mayur Farm Pvt. Ltd. vs Alok Tandon,Chairman N.O.I.D.A. And ... on 17 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 50, (2020) 139 ALL LR 158 (2020) 2 ADJ 732 (ALL), (2020) 2 ADJ 732 (ALL)
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Reserved Court No. - 2 Case :- CONTEMPT APPLICATION (CIVIL) No. - 5162 of 2019 Applicant :- Mayur Farm Pvt. Ltd. Opposite Party :- Alok Tandon,Chairman N.O.I.D.A. And Others Counsel for Applicant :- Arvind Srivastava,Sarveshwari Prasad Counsel for Opposite Party :- Kaushalendra Nath Singh Hon'ble Suneet Kumar,J.
1. Heard Shri K.N. Tripathi, learned Senior Advocate, assisted by Shri Arvind Srivastava and Shri Rishabh Kumar, learned counsels for the applicant and Shri M.C. Chaturvedi, learned Senior Advocate, assisted by Shri Kaushalendra Nath Singh, learned counsels for the opposite party.
2. The instant contempt petition has been filed under the Contempt of Courts Act, 1971, for punishing the opposite parties, including, the Chairman/Chief Executive Officer, New Okhala Industrial Development Authority (Noida), for flouting the order dated 14 December 2007, passed in First Appeal: Jagdish Chandra and others vs. New Okhala Industrial Development Authority, Noida1 (First Appeal No. 412 of 2007).
3. The Stamp Reporter has reported that the judgment and decree of the Appellate Court was brought to the notice of the opposite parties on 7 February 2014, accordingly, the contempt petition has been filed after a lapse of 6 years 65 days. The opposite party no. 1 has put in appearance and filed affidavit, inter alia, stating that the petition apart from being barred by laches and delay, the judgment and decree of the Appellate Court is not executable under the Contempt of Courts Act, 19712. The contempt petition is not maintainable, remedy available to the applicant/appellant is before the civil court by resorting to execution proceedings.
4. The facts, briefly stated, for the purposes of the instant petition, is that the plot of the applicant came to be acquired in proceedings under the Land Acquisition Act, 18943, pursuant to a notification issued on 30 October 1987. The award came to be passed by the Special Land Acquisition Officer determining the compensation at Rs. 46.64 per sq. yard. The award/compensation was subjected to challenge in reference, the learned District Judge enhanced the compensation to Rs. 148.75 paise per sq. yard vide judgment dated 28 August 2000. The Reference Court, however, directed deduction of 50% of the development charge from the compensation amount. Aggrieved, appellant/applicant herein, along with other aggrieved persons, filed separate First Appeals which came to be decided by a common judgment and order by this Court. The Appellate Court vide judgment and order dated 14 December 2007, enhanced the compensation to Rs. 297.50 paise per sq. yard and set aside the order of the Reference Court to the extent directing deduction of 50% of development charge. The operative portion of the order reads thus:
"Accordingly, the impugned reference and the award to the extent of deduction made from the correct market value for arriving at the amount of compensation to be paid to the petitioners is concerned is hereby quashed and the respondents are directed to recalculate the amount of compensation without deducting any amount towards development charges and pay the same to the petitioners within three months from today alongwith interest @ 10% per annum to be calculated on the same from the date the amount of compensation was to be paid till the date of payment.
With these observations the first appeals and/or cross-objections of the respective parties are disposed of. No order is passed as to costs."
5. The judgment was subjected to challenge by NOIDA in Special Leave Petition No. 5276 of 2009, which came to be dismissed on 29 October 2014. NOIDA paid the compensation determined by the Appellate Court on 29 October 2014, immediately after the dismissal of the appeal.
6. The learned Senior Counsel appearing for the applicant submits that the Appellate Court had directed payment of interest @ 10% per annum, which according to him, is interest over and above the compensation and the statutory interest contemplated under Section 34 of the Land Acquisition Act. It is further urged that NOIDA by not paying the interest over and above the compensation amount, which includes the statutory interest, the opposite parties have willfully and deliberately flouted the order of this Court. It is further contended that by not paying the interest as directed by this Court, it is a continuing cause of action, therefore, the petition is not barred by delay and latches. However, by abundant caution an application under Section 5 of the Limitation Act, 1963, for condoning the delay has been filed.
7. In rebuttal, the learned counsel appearing for the NOIDA would urge that the judgment and decree has been duly satisfied, the amount towards compensation along with statutory interest payable @ 9%/15% was paid forthwith. The applicants are not entitled to any further interest. It is further urged that the Appellate Court had merely directed 10% interest, whereas, NOIDA has paid interest @ 15% which is in excess and is liable to be recovered from the applicants. It is further contended that almost fifty First Appeals came to be decided by a common order, but none of the appellants, have approached this Court or initiated execution proceedings claiming 10% interest, over and above the statutory interest already paid by NOIDA. The applicant is the only appellant that has approached this Court after lapse of more than 6 years. NOIDA is not required to pay any further amount towards interest.
8. The learned counsel would further submit that there is no wilful and deliberate disobedience of the order and decree. The decree stands satisfied. In any case the decree cannot be executed in contempt jurisdiction bypassing the civil remedy.
9. Rival submissions fall for consideration.
10. The question that primarily arises is, as to whether, a decree of a civil court can be executed in contempt proceedings or in the alternative whether there is wilful disobedience of the order of the Appellate Court to invoke the jurisdiction under the Contempt Act.
11. The facts, inter-se parties, are not in dispute. It would be apposite to briefly scan the authorities on the proposition of law and the meaning of the expression ''wilful disobedience'.
12. Section 2(b) of the Contempt Act, is relevant for adjudication, which reads thus:
"2. Definitions. - In this Act, unless the context otherwise requires,-
(a). ......
(b). "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;
(c). .......
(i). xxxxx
(ii). xxxxx
(iii). xxxxx
(d). ......."
13. The contempt jurisdiction is limited to punish the contemnor, not for disobedience of the order, but upon returning a finding that the disobedience is wilful. Mere disobedience is not sufficient unless it is shown and proved that the disobedience is wilful, deliberate and intentional.
14. In Ashok Paper Kamgar Union vs. Dharam Dhoda and others4, Supreme Court while explaining the expression ''wilful' and Section 2 of the Contempt Act, held, that it means an act or omission done voluntarily and intentionally with the specific intent not to do something that the law requires to be done. In order to constitute contempt, the order of the court must be of such nature which is capable of execution in normal circumstances.
"17. ...... "Wilful" means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose. Therefore, in order to constitute contempt the order of the court must be of such a nature which is capable of execution by the person charged in normal circumstances. It should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. This has to be judged having regard to the facts and circumstances of each case....."
15. The Court must not only be satisfied about the disobedience, but should also be satisfied that such disobedience was wilful and intentional. If from the circumstances of a particular case, the Court is satisfied that although there has been a disobedience but the disobedience is the result of some compelling circumstances under which it is not possible for the contemnor to comply the order, the court would not punish the alleged contemnor.
16. Supreme Court in Dinesh Kumar Gupta vs. United India Insurance Company Ltd.5, while analysing the scope of Section 2(b) of the Contempt Act observed as under:
"17. This now leads us to the next question and a more relevant one, as to whether a proceeding for contempt initiated against the appellant can be held to be sustainable merely on speculation, assumption and inference drawn from facts and circumstances of the instant case. In our considered opinion, the answer clearly has to be in the negative in view of the well- settled legal position reflected in a catena of decisions of this Court that contempt of a civil nature can be held to have been made out only if there has been a wilful disobedience of the order and even though there may be disobedience, yet if the same does not reflect that it has been a conscious and wilful disobedience, a case for contempt cannot be held to have been made out. In fact, if an order is capable of more than one interpretation giving rise to variety of consequences, non-compliance with the same cannot be held to be wilful disobedience of the order so as to make out a case of contempt entailing the serious consequence including imposition of punishment. However, when the courts are confronted with a question as to whether a given situation could be treated to be a case of wilful disobedience, or a case of alame excuse, in order to subvert its compliance, howsoever articulate it may be, will obviously depend on the facts and circumstances of a particular case; but while deciding so, it would not be legally correct to be too speculative based on assumption as the Contempt of Courts Act, 1971 clearly postulates and emphasises that the ingredient of wilful disobedience must be there before anyone can be hauled up for the charge of contempt of a civil nature."
17. It thus follows that the Court would not overlook or ignore the statutory ingredients of contempt of a civil nature under Section 2(b), that the disobedience to the order alleging contempt has to satisfy the test that it is a wilful disobedience. In other words Section 2(b) could be invoked only when there is wilful disobedience and the Section provides scope for reasonable or rational interpretation of an order or the facts and circumstances arising therein. Mere unintentional disobedience is not enough to hold anyone guilty of contempt although disobedience might have been established. Absence of wilful disobedience on part of the contemnor will not hold guilty unless contempt involves a degree of fault or misconduct. Thus, the unintentional disobedience is not sufficient to justify for holding one guilty of contempt.
18. It is settled law that casual, accidental or unintentional acts of disobedience under the circumstances which negate any suggestions of contumacy, may amount to a contempt in theory only but that does not render the contemnor liable to punishment. To hold somebody guilty of contempt of Court, the concerned person must have wilfully disobeyed judgment, decree etc. or should have wilfully committed breach of an undertaking given to a Court. (Refer: B.K. Kar vs. High Court of Orissa6; State of Bihar vs. Rani Sonabati Kumari7 and N. Baksi vs. O.K. Ghosh8, the principle was reiterated in Jiwani Kumari Parikh vs. Satyabrata Chakravorty9 and Gyani Chandra vs. State of Andhra Pradesh10).
19. In Niaz Mohammad and others vs. State of Haryana and others11, wherein, the contemnors had not obeyed the judgment and released the salary, disobedience was held, in the given facts not wilful so as to tantamount to civil contempt. The Supreme Court drew a distinction between a court executing an order and punishing for contempt. Reliance was placed on Dushyant Somal vs. Sushma Somal12, to hold that where the contemnor is able to place before the court sufficient material to conclude that it is impossible to obey the order, the court will not be justified in punishing the alleged contemnor.
20. In Kanwar Singh Saini vs. High Court of Delhi13, the question posed before the Supreme Court was as to whether, the statement/undertaking given by a party culminating into a decree of a civil court, an application under Order 39 Rule 2A C.P.C. or under the Contempt Act could be entertained by the civil court and/or whether the matter could be referred by the civil court to the High Court at all. The Court held that in case grievance of non-compliance with the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order 21 Rule 32 CPC.
"10. In case there is a grievance of non-compliance of the terms of the decree passed in the civil suit, the remedy available to the aggrieved person is to approach the execution court under Order XXI Rule 32 CPC which provides for elaborate proceedings in which the parties can adduce their evidence and can examine and cross-examine the witnesses as opposed to the proceedings in contempt which are summary in nature. Application under Order XXXIX Rule 2A CPC is not maintainable once the suit stood decreed. Law does not permit to skip the remedies available under Order XXI Rule 32 CPC and resort to the contempt proceedings for the reason that the court has to exercise its discretion under the Act 1971 when an effective and alternative remedy is not available to the person concerned. Thus, when the matter relates to the infringement of a decree or decretal order embodies rights, as between the parties, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode of executing the decree or merely because other remedies may take time or are more circumlocutory in character. Thus, the violation of permanent injunction can be set right in executing the proceedings and not the contempt proceedings."
21. The violation or breach of the undertaking which became part of the decree of the Court, amounts to contempt of Court, irrespective of the fact that it is open to the decree-holder to execute the decree. In other words, for breach of an undertaking the person can be punished for contempt, but the decree has to be got executed in accordance with the prescribed procedure before the contempt civil court. The Supreme Court in Bank of Baroda vs. Sadruddin Hassan Daya14 held as follows:
"14. The respondents had filed consent terms in this Court but the same contained an undertaking that they would not alienate, encumber or charge the properties to anyone until the decree was satisfied. Acting upon this undertaking and the consent terms, this Court passed the decree....., This Court, therefore, put its imprimatur upon the consent terms and made it a decree of the Court. The violation or breach of the undertaking which became part of the decree of the Court certainly amounts to contempt of Court, irrespective of the fact that it is open to the decree holder to execute the decree. Contempt is a matter between the Court and the alleged contemner and is not affected in any manner by the rights or obligations of the parties to the litigation inter se......
15........ In the present proceedings we are basically concerned with the violation or breach of the undertaking given by the respondents. Shri C.A. Sundaram, learned senior counsel, has submitted that the Respondent No. 2 was not personally present and the undertaking was given by him through a power of attorney. In our opinion, the mere fact that the respondent No. 2 was personally not present and the undertaking and the consent terms were given through a power of attorney will make no difference as he also got benefit under the consent decree passed by this Court."
22. In a given case if the court grants time to a tenant to vacate the tenanted premises and the tenant files an undertaking to vacate the same after expiry of the said time, but does not vacate the same, the breach of the undertaking would amount to contempt. (See: Sakharan Ganesh Aaravandekar & Anr. v. Mahadeo Vinayak Mathkar & Ors.15 and Mahender Kumar Gandhi v. Mohammad Tajer Ali & Ors.16.
23. In an appropriate case where exceptional circumstances exist, the Court may also resort to the provisions applicable in case of civil contempt, for violation/breach of undertaking/judgment/order or decree. However, before passing any final order on such application, the Court must satisfy itself that there is violation of such judgment, decree, direction or order and such disobedience is wilful and intentional. Though in a case of execution of a decree, the executing Court may not be bothered whether the disobedience of the decree is wilful or not and the Court is bound to execute a decree whatever may be the consequence thereof. In a contempt proceeding, the alleged contemnor may satisfy the Court that disobedience has been under some compelling circumstances, and in that situation, no punishment can be awarded to him. (See: Niaz Mohammad and others vs. State of Haryana and others17, Bank of Baroda (supra); and Rama Narang vs. Ramesh Narang and anothers18.
24. The contempt proceedings being quasi-criminal in nature, the standard of proof required is the same as in other criminal cases. The alleged contemnor is entitled to the protection of all safeguards/rights which are provided in Criminal Jurisprudence, including, the benefit of doubt. There must be a clear-cut case of obstruction of administration of justice by a party intentionally to bring the matter within the ambit of the said provision. The case should not rest only on surmises and conjectures. In Debabrata Bandopadhyay and others vs. The State of West Bengal and another19, Supreme Court observed as under:
"A question whether there is contempt of court or not is a serious one. The court is both the accuser as well as the judge of the accusation. It behoves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished......... Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged."
25. In the facts of the instant case, it is not being disputed by the applicants that the compensation at the rate determined by the Court and the interest, thereon, has been paid by NOIDA. The issue between the parties is whether applicant is entitled to interest @ 10% over and above the statutory interest provided under the Land Acquisition Act. The categorical stand of NOIDA authority is that they have satisfied the decree and no further amount is required to be paid. Rather, it is urged that they have paid excess amount towards interest.
26. In the given facts the question that arises is as to whether the alleged disobedience by NOIDA is wilful and deliberate inviting punishment. Having regard to the fact that NOIDA satisfied the decree, though not to the satisfaction of the applicant, NOIDA authorities cannot be punished. The disobedience, if any, is not intentional and wilful. The matter relates to infringement of a decree or decretal order, it is not expedient to invoke and exercise contempt jurisdiction, in essence, as a mode for executing the decree. The remedy available to the applicant is to take recourse in execution proceedings and not in contempt proceedings. Punishment for disobedience/infringement of a decree is not akin to execution of the decree. The jurisdiction of a Contempt Court is distinct and different than that of the executing Court.
27. For the reasons and law stated herein above, the petition fails, accordingly dismissed.
28. This order and the observations made therein would not prejudice the cause of the applicant in the event the applicant takes remedy of execution of the decree.
Order Date :- 17.1.2020 S.Prakash