Allahabad High Court
Gulshan Kumar vs State Of U.P. Thru Secy. And Others on 24 May, 2013
Bench: Sudhir Agarwal, Pradeep Kumar Singh Baghel
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Civil Misc. Modification Application No. 321945 of 2012 In Case :- WRIT - C No. - 30348 of 2012 Petitioner :- Gulshan Kumar Respondent :- State of U.P. Thru Secy. And Others Petitioner Counsel :- Varun Dev Sharma, Sanjiv Singh Respondent Counsel :- C.S.C., Shivam Yadav Hon'ble Sudhir Agarwal, J.
Hon'ble Pradeep Kumar Singh Baghel, J.
1. Pursuant to this Court's order dated 3.5.2013. Sri R.K. Singh, Secretary, Ghaziabad Development Authority, Ghaziabad (hereinafter referred to as "GDA") and Sri Gyanendra Verma, Joint Secretary, GDA are present and have filed their affidavits.
2. This application has been treated to be a modification application as well as an application under Article 215, read with Article 226 of the Constitution of India.
3. Sri S.P. Gupta, learned Advocate General, Assisted by Sri Shivam Yadav, Advocate, has put in appearance on behalf of above authorities. It is stated at the outset that the demand of Rs. 54,50,265/- vide order dated 18.8.2012 was obviously not justified and consistent with the order of this Court dated 15.6.2012, which was passed with the consent of the learned counsels for parties. A separate document has been placed before this Court stating that the balance due as on 30.6.2013, which includes the outstanding dues as well as penal interest calculated at the rate of 21 per cent per annum, payable by petitioner would be Rs. 14,86,526/- after deducting Rs. 6 lacs which he deposited on 13.7.2012, pursuant to this Court's order dated 15.6.2012. However, learned Advocate General explained that authorities were swayed for calculating dues against the petitioner to the tune of Rs. 54,50,265/- in view of the Government Order dated 20.11.1999 issued by Sri Atul Kumar Gupta, Secretary, U.P. Government, addressed to all Development Authorities as well as U.P Awas Evam Vikas Parishad. In para 14 thereof it is provided that in the case of restoration of allotment after its cancellation due to fault of allottee, he shall have to pay 75 per cent of the market value or the present value under the scheme, whichever is higher and applying the aforesaid directions, order dated 18.8.2012 was issued demanding Rs. 54,50,265/-.
4. Having gone through the aforesaid Government Order, we do not find as to how it will apply to the present case. Firstly, the aforesaid Government Order provides only model guidelines to all the Development Authorities as well as U.P. Awas Evam Vikas Parishad and in the last paragraph of the Government Order dated 20.11.1999, Development Authorities as well as Awas Evam Vikas Parishad have been directed that these guidelines should be placed before the Board of respective bodies by 30.11.1999 and after consideration thereof, the decision be taken for their implementation and requisite compliance be communicated to State Government by 15.12.1999. It has not been stated anywhere in the entire affidavit as to when the Government Order dated 20.11.1999 was considered by Board of GDA and whether it was made an enforceable provision vis-a-vis GDA and its allottees.
5. Moreover, we have also not been explained as to what is the legal status of the aforesaid document, and, in what manner it shall be binding on the allottees, affecting relationship of allottees and GDA, other than that governed by U.P. Urban Planning and Development Act, 1973, Rules and Regulations, framed thereunder and also the terms of the agreement under the allotment letter etc. Reference to the aforesaid Government Order is patently erroneous, imaginary and a pretext only. This explanation appears to have been issued by GDA indiscreetly. It gives a licence to GDA, without giving it a legal status, to apply in selected cases and thereby to harass and discriminate between different allottees, as has been done in the present case where the correct amount up to 30.6.2013, would have been only Rs. 14,86,526/-, but by order dated 18.8.2012, a demand was made for Rupees 54,50,265/-. We also find that, had the correct demand been made pursuant to this Court's order dated 15.6.2012 in July or August, 2012, instead of impugned demand, petitioner would have been liable to pay only Rs. 11 lacs 70 thousand and odd, but due to fault and mischief played by respondents and its authorities, now he is saddled with the undue liability of penal interest for a further period of almost one year which comes to about three lacs and odd, for which, admittedly, he is/was not responsible. For this laxity, the officials present in the Court are clearly responsible.
6. In the affidavits, since no valid justification has come, we are satisfied that respondents have deliberately violated and disobeyed order dated 15.6.2012, passed by this Court and they are guilty of committing contempt of this Court, punishable under the provisions of Contempt of Courts Act, 1971.
7. Both the Officers are present in the Court, have not asked for any further opportunity except the affidavits, which they have already filed. Learned Advocate General, however, said that demand now having been rectified, this Court may take a lenient view in the matter, and these officers be pardoned.
8. We have no manner of doubt that power of contempt, and, that too of punishment, should be exercised sparingly and only when it is extremely necessary. This is what has been observed and said by the Courts, including the Apex Court, time and again, but those were the days when the cases reflecting adamant attitude on the part of officials of the State and its instrumentalities to defy Courts' orders was not a routine course but rare and exceptional. In most of the Courts, including Allahabad High Court, contempt matters used to be taken up by a Judge once in a week since it was not an every day affair. The cases of defiance, deliberate disobedience and flouting of Court orders were a very few. Unfortunately, in the last, a decade and more, tendency of keeping Court's orders in cold storage, going on for non compliance thereof for whatever period, the authorities have shown scant regard and virtually no care or fear of punitive action for contempt exists. The attitude of deliberate breach, non compliance or disobedience or acting in the teeth of Court's orders, has shown consistent rise day by day, so much so, now-a-days regular contempt Courts are sitting at Lucknow and Allahabad, yet not able to cope up with the number of such cases. Probably the authorities, somehow or other, have got an impression that come what way, nothing will happen if a Court's order is not complied with within the time prescribed or even if they act contrary, and if on a contempt notice issued by the Court, Officer informs that now the order has been complied with then nothing shall happen. Similarly, they think, as it appear to us, where the orders, directions and decisions given by Courts are breached with immunity and are tried to be defied till matter is complained in contempt proceedings, if authorities concerned come and say that now they have rectified, it would be sufficient to prevent any coercive action against them. We can not ignore, in this process, the plight, harassment and torture of ordinary poor litigant who is compelled to come to the Court repeatedly against the illegal acts or inaction on the part of State and its instrumentalities. The helpless litigant has to face multiplicity of litigation. The executive officers simply thrive on this plight of poor litigants, either by compelling them to get the things compromised for extraneous reasons and consideration or to face the torture of continuous litigation. The Court's lenient approach in not exercising its power of contempt to set the things right is being greatly misused by such scrupulous officials of state and its instrumentalities. The power of punishment may not be invoked as a retaliatory tool but to save the wronged common man and to prevent persistent injustice to him, the Court must rise to the occasion at right point of time. This attitude of "let it go" is leading in eroding confidence of common people in the system of justice. Many a times, such litigants finds themselves handicapped in enjoying fruit of justice without satisfying illegal demand of authorities or face continued litigation, in one or other way. We have reminded time and again that Court's order whenever passed by adjudicating rights of the parties or consented orders etc., either they must be complied with in words and spirit, or, if there is any grievance, it is always open to avail remedy of appeal etc. in higher forum and get a stay order therefrom but without any such order of stay etc. from superior court, executive authorities have no business or authority either to sit over Courts order or implement the same in a distorted, and misconstrued manner.
9. In the present case the gravity of illegality on the part of respondents and the way in which they have virtually caused a high volt shock to petitioner is writ large from the fact that actually he was to pay a sum of just about eleven or twelve lacs, but a demand of more than Rs. 54 lacs was raised. An ordinary person may have suffered a heart stroke but the petitioner, fortunately, could well absorb the shock and intelligently approached this Court, instead of being lured to get the matter settled in an unauthorized manner with respondent-authorities. The conduct of respondents, we are sorry to comment, is highly objectionable and derogatory. We have no hesitation in holding that concerned authorities have deliberately defied and breached this Court's judgment and order dated 15.6.2012.
10. Considering all the facts and circumstances and the audacity on the part of Officers concerned as also harassment and torture met by petitioner, we dispose of this application with following directions:
(A) Sri R.K. Singh, Secretary, GDA and Sri GyanendraVerma, Joint Secretary, GDA are held guilty of deliberately disobeying and violating this Court's order dated 15.6.2012 and thereby committing contempt of this Court. However, in the matter of punishment, taking a lenient view, they are imposed punishment of fine of Rs 100/- on each of aforesaid Officers.
(B) The petitioner shall be liable to pay outstanding dues along with interest, as payable, on the date, letter dated 18.8.2012 was issued, and, the interest for subsequent period, delay whereof is attributable to respondents, the Development Authority shall realize from the Officers concerned, since they are the persons responsible for such loss caused to Development Authority.
(C) Petitioner shall deposit the dues, as per chart, which has been made part of the record, wherein total dues up to 13.7.2012 has been shown as 11,48,053/- and lease rent Rs. 22.576/- within 15 days from today.
(D) GDA shall calculate the difference of interest after adjusting the amount paid as directed in clause (C) above so as to make it payable up to 18.8.2012 and communicate the same to petitioner, which the petitioner shall deposit within 15 days from the date of receipt of such communication.
(D) On such payment, our order dated 15.6.2012 shall hold valid for all other purposes.
Dt. 24.5.2013 PS