Allahabad High Court
Prem Shankar vs Rajeev Pandey Special Land Acquisition ... on 25 May, 2022
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 17.05.2022 Delivered on 25.05.2022 Court No. - 10 Case :- CONTEMPT APPLICATION (CIVIL) No. - 5344 of 2021 Applicant :- Prem Shankar Opposite Party :- Rajeev Pandey Special Land Acquisition Officer/City Magistrate, Bareilly And Another Counsel for Applicant :- Krishna Kant Mishra Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Shiva Kant Mishra, Advocate holding brief of Sri K.K. Mishra, learned counsel for the applicant and Sri Manish Goyal, learned Additional Advocate General assisted by Sri R.K. Mishra, learned Standing Counsel for the opposite parties.
2. This contempt proceeding under Section 12 of The Contempt of Courts Act, 1971 has been initiated against the opposite parties for deliberate and wilful disobedience of the order dated 30.07.2019 passed in Writ-C No.17534 of 2019 (Prem Shankar Vs. State of U.P. and others).
3. Case, in nutshell, is that the applicant who is the owner with transferable rights of Gata Nos. 275, 276, 277, 296 and 297, measuring 3519 Sq. Metre, his land was taken over for construction of mini by-pass without adverting to acquire the land under the provisions of Land Acquisition Act, 1894.
4. The applicant had approached for payment of compensation which was not paid as per the Government Order dated 19.03.2015 and 12.05.2016, the applicant was constrained to approach this Court and file writ petition.
5. The writ Court, on 30.07.2019, directed the applicant to file a comprehensive representation ventilating all his grievances which he had taken in the writ petition before the Special Land Acquisition Officer, Bareilly who was to decide the same by reasoned and speaking order within three months. When no action was taken by the opposite party no.1, the present contempt proceedings were initiated.
6. Initially, on 19th April, 2022, the opposite parties filed their affidavit of compliance stating therein that the District Magistrate, on 13.04.2020 had constituted a Committee to decide the claim of the applicant as per the Government Order dated 19.03.2015. The Committee enquired and determined the amount of compensation to the tune of Rs.27,44,82,000/- and submitted its report to the District Magistrate. The District Magistrate on 13.04.2022 had made an endorsement on the report of the Committee, and forwarded it for approval to the Commissioner, Bareilly Division. The approval was awaited.
7. The case was taken up on 19.04.2022 and the Court directed the matter to be placed on 10.05.2022 and by that time, the payment was to be released, in case of non-compliance, the opposite parties were to remain present in the Court. On 10.05.2022, the lawyers were on strike and the matter was deferred for 17.05.2022 and the officers were required to be present before the Court. On 17.05.2022, affidavit of compliance was filed by all the three officers who were present in the Court and are arrayed as opposite parties.
8. In the affidavit filed by the District Magistrate, Bareilly, in paragraph 11, it is stated that the Commissioner on 05.05.2022 made an objection to the report forwarded by the District Magistrate and directed that the matter should be re-visited in the light of the Government Order dated 19.03.2015. On the same day, the Public Works Department also submitted its report/objections, wherein it was stated that the acquisition proceedings started in 2001 and the possession was transferred in 2003. The land in question was recorded in the name of one Smt. Bhagola Devi W/o late Mishri Lal, Janki Prasad, Prem Shankar (applicant) and Sri Devi Das sons of late Mishri Lal. It was further stated that the names of the co-tenure holders were recorded in the revenue records over the agricultural land. The revenue records does indicate that the land was recorded as abadi. The objections and the reports of Commissioner, Bareilly and Public Works Department have been brought on record as Annexures 1 and 2 to the affidavit of compliance dated 10.05.2022. Thereafter, on 06.05.2022, the District Magistrate constituted a new Committee for determining the share of the applicant. The Committee submitted its report on 07.05.2022 mentioning therein that land in question was agricultural and not abadi at the time of notification/acquisition, and share of applicant was 1/3rd.
9. The Valuation Approval Committee which was convened on 09.05.2022, determined the value of compensation payable to the applicant (1/3rd share) to the tune of Rs.75,07,200/-. The said report was approved by the District Magistrate and the directions were issued to the Public Works Department for payment of compensation amount. Copy of the report of the approval of District Magistrate has been brought on record as Annexures 3 and 4 of the affidavit of compliance.
10. Sri Shiva Kant Mishra, learned counsel for the applicant submitted that the compensation payable to the applicant is to the tune of Rs.27,44,82,000/- which was recommended by the Committee constituted by District Magistrate on 13.04.2022 which was in accordance with the Government Order dated 19.03.2015. According to him, once the amount was quantified, no occasion arose for re-determining the compensation, as Commissioner was not the authority to have given any approval or disapproval to the amount already quantified, and the opposite parties are in contempt of not complying the order of the writ Court. He invited the attention of the Court to the Government Order dated 19.03.2015 which requires for the payment of the amount to the landholders whose land is taken as per agreement.
11. He then contended that the Committee had found that the rate payable as per the circle rate was Rs.39,000/- per Sq. Metre and pursuant to the Government Order dated 19.03.2015, the amount as per the circle rate was payable, which was rightly calculated by the Committee on 13.04.2022. According to him, once the amount was quantified and an admission has been made by the officers of the State Government by filing an affidavit, they cannot resile at a subsequent stage and deny the payment.
12. Reliance has been placed upon the judgments of the Apex Court in case of Reddy Veerana Vs. State of Uttar Pradesh and others, decided on 05.05.2022 arising out of Civil appeal No.3636 of 2022, Dr. U.N. Bora, Ex. Chief Executive Officer and others Vs. Assam Roller Flour Mills Association and another 2022 (1) SCC 101, Suman Chadha and others Vs. Central Bank of India, AIR 2021 SC 3709, and Bhopendra Singh and others Vs. Awas Vikas Parishad and others, First Appeal No.33 of 2004, decided on 04.08.2005 by the High Court of Uttaranchal at Nainital.
13. Sri Manish Goyal, learned Additional Advocate General appearing for the opposite parties submitted that the direction of the writ Court was only to the extent of deciding the representation by the Special Land Acquisition Officer, Bareilly. The writ Court had not adjudicated the matter on merits and order dated 30.07.2019 categorically takes note of the fact that without any opinion on the merits of the case, applicant was granted opportunity to file a comprehensive representation before the Special Land Acquisition Officer, Bareilly.
14. As the earlier Committee constituted by the District Magistrate on 13.04.2022 calculated the compensation on the basis of the land situated in the Abadi area, but when approval was sought from the Commissioner, it came into the light that the land which was taken over, was agricultural land and not abadi.
15. Moreover, the objections of the Public Works Department brought into the light that the applicant was only one of the co-sharers of the land taken over for construction of mini by-pass, and there were two other co-sharers who were also entitled for compensation. As the matter was referred back to the District Magistrate to enquire again, Committee was re-constituted and on enquiry, it was found that entry in revenue records reflected that land was recorded as agricultural land. Further, the applicant was only entitled to 1/3rd share in the land taken over and compensation to the tune of Rs.75 lakhs and odd was directed to be paid.
16. According to Sri Goyal, the applicant is not entitled to the amount quantified on 13.04.2022 as no approval was accorded by the Commissioner, and the State cannot be compelled to pay the amount for which the applicant is not entitled for. He next contended that in case, the applicant is aggrieved by the order passed by the District Magistrate that the applicant is entitled to only 1/3rd amount of compensation of the land taken over, he may approach the reference Court or any other judicial forum as the order of the writ Court has been duly complied with which was to the extent of deciding the representation of the applicant.
17. Having heard rival submissions and after perusing the material on record, I find that the proceedings initiated at the behest of applicant against the State Officials under Section 12 of the Contempt of Courts Act are for punishing them for wilful disobedience of the order of the writ Court. According to the applicant, the officers are in contempt as they have filed an affidavit on the earlier occasion stating that the applicant was entitled to the payment of Rs.27,44,82,000/- and now resiling back from the said affidavit and coming with a case that the applicant is only entitled for Rs.75 laksh and odd would attract the wrath of Section 12 of the Contempt of Courts Act, 1971.
18. Before proceeding to decide the issue as to whether any deliberate or wilful disobedience of the order has been made by the opposite party, a glance of Section 2(b) of Contempt of Courts Act, 1971 is necessary for better appreciation of the case, which is extracted hereasunder:-
"2. (b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;"
19. From the reading of the said provisions, it is clear that to attract provision of civil contempt, the party approaching the Court has to show that there is any wilful disobedience of any judgment or order of the Court.
20. In order to punish a contemnor, it has to establish that disobedience of the order is "wilful". The Supreme Court in its celebrated judgment rendered in the case of Ram Kishan Vs. Tarun Bajaj and others 2014 (16) SCC 204, held that the word "wilful" introduces a mental element and hence, requires looking into the mind of a person/contemnor by gauging his actions, which is an indication of one's state of mind. According to Court, the word "wilful" means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bona fide or unintentional acts or genuine inability. Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. The relevant paras 11 and 12 of the judgment are extracted hereasunder:-
"11. Contempt jurisdiction conferred onto the law courts power to punish an offender for his wilful disobedience/contumacious conduct or obstruction to the majesty of law, for the reason that respect and authority commanded by the courts of law are the greatest guarantee to an ordinary citizens that his rights shall be protected and the entire democratic fabric of the society will crumble down if the respect of the judiciary is undermined. Undoubtedly, the contempt jurisdiction is a powerful weapon in the hands of the courts of law but that by itself operates as a string of caution and unless, thus, otherwise satisfied beyond reasonable doubt, it would neither fair nor reasonable for the law courts to exercise jurisdiction under the Act. The proceedings are quasi- criminal in nature, and therefore, standard of proof required in these proceedings is beyond all reasonable doubt. It would rather be hazardous to impose sentence for contempt on the authorities in exercise of contempt jurisdiction on mere probabilities.
12. Thus, in order to punish a contemnor, it has to be established that disobedience of the order is ''wilful'. The word ''wilful' introduces a mental element and hence, requires looking into the mind of person/contemnor by gauging his actions, which is an indication of one's state of mind. ''Wilful' means knowingly intentional, conscious, calculated and deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, bonafide or unintentional acts or genuine inability. Wilful acts does not encompass involuntarily or negligent actions. The act has to be done with a "bad purpose or without justifiable excuse or stubbornly, obstinately or perversely". Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part. Even if there is a disobedience of an order, but such disobedience is the result of some compelling circumstances under which it was not possible for the contemnor to comply with the order, the contemnor cannot be punished. "Committal or sequestration will not be ordered unless contempt involves a degree of default or misconduct"
21. In Dr. U.N. Bora (Supra), the Hon'ble Apex Court held that wilful disobedience will be in case where the action is deliberate, conscious and intentional. The Court further held that while dealing with the contempt petition, the Court was not expected to conduct a roving enquiry and go beyond the very judgment which has allegedly been violated. Relevant para 8 is extracted hereasunder:-
"8. We are dealing with a civil contempt. The Contempt of Courts Act, 1971 explains a civil contempt to mean a willful disobedience of a decision of the Court. Therefore, what is relevant is the "willful" disobedience. Knowledge acquires substantial importance qua a contempt order. Merely because a subordinate official acted in disregard of an order passed by the Court, a liability cannot be fastened on a higher official in the absence of knowledge. When two views are possible, the element of willfulness vanishes as it involves a mental element. It is a deliberate, conscious and intentional act. What is required is a proof beyond reasonable doubt since the proceedings are quasi-criminal in nature. Similarly, when a distinct mechanism is provided and that too, in the same judgment alleged to have been violated, a party has to exhaust the same before approaching the court in exercise of its jurisdiction under the Contempt of Courts Act, 1971. It is well open to the said party to contend that the benefit of the order passed has not been actually given, through separate proceedings while seeking appropriate relief but certainly not by way of a contempt proceeding. While dealing with a contempt petition, the Court is not expected to conduct a roving inquiry and go beyond the very judgment which was allegedly violated. The said principle has to be applied with more vigor when disputed questions of facts are involved and they were raised earlier but consciously not dealt with by creating a specific forum to decide the original proceedings."
22. It is made clear that in the present case, the writ Court on 30.07.2019 had required the Special Land Acquisition Officer, Bareilly to decide the representation of the applicant by a reasoned and speaking order. There was no adjudication of claim by the writ Court. The writ Court had specifically observed that the petition was disposed of without going into the merits of the case. Once, the writ Court did not adjudicate the matter on merit leaving it open to the authorities to decide the claim, the contempt Court cannot go behind the order passed by the writ Court and conduct a roving and fishing enquiry as has been held in the judgment of the Apex Court.
23. The argument raised at the behest of the applicant falls flat in view of the judgment cited above as there is no wilful disobedience by the officers concerned, as no claim was adjudicated by the writ Court leaving it open for the authorities to decide the claim in accordance with law.
24. Moreover, the report of the Committee endorsed by the District Magistrate on 13.04.2022 cannot be said to be a final order which was subject to approval of the Commissioner, Bareilly Division who had taken a decision on 05.05.2022 remitting back the file to the District Magistrate to re-constitute the Committee and submit a fresh report. It was when the Committee was re-constituted, it was found on enquiry that the land which was taken in the year 2003 was in fact, agricultural land recorded in the name of three persons and the applicant was one of co-tenureholder, and was entitled to only 1/3rd share of compensation.
25. The argument on behalf of the applicant that he was entitled to the entire share cannot be accepted as authorities have found him entitled to only 1/3rd share and the calculation having been made on the basis of the land recorded in the revenue records as agricultural land. The compensation earlier determined on 13.04.2022 was on the basis of the land situated in abadi whose value was more than the agricultural land.
26. In Sushila Raje Holkar Vs. Anil Kak (Retd.) 2008 (14) SCC 392, the Apex Court held that the proceeding under Contempt of Courts Act has a serious consequence. The Court held that where there is a allegation against a contemnor that he has wilfully committed breach of the order passed by a competent Court of law, then for the said purpose, it may be permissible to read the order of the Court in its entirety. Para 23 of the judgment is extracted hereasunder:-
"A proceeding under the Contempt of Courts Act has a serious consequence. Whether the alleged contemnor has willfully committed breach of the order passed by a competent court of law or not having regard to the civil/evil consequences ensuing therefor require strict scrutiny. For the said purpose, it may be permissible to read the order of the court in its entirety. The effect and purport of the order should be taken into consideration. Whereas the court shall always zealously enforce its order but a mere technicality should not be a ground to punish the contemnor. A proceeding for contempt should be initiated with utmost reservation. It should be exercised with due care and caution. The power of the court in imposing punishment for contempt of the court is not an uncontrolled or unlimited power. It is a controlled power and restrictive in nature (See Re: P.C. Sen [(1969) 2 SCR 649] and Jhareswar Prasad Paul and Another v. Tarak Nath Ganguly & Ors. [(2002) 5 SCC 352]. A contemnor, thus, may be punished only when a clear case for contumacious conduct has been made out."
27. In the case in hand, the alleged breach is of the order of the writ Court dated 30.07.2019 which nowhere quantifies the amount or decide the lis between the parties. It only relegates the matter to the authorities and directs the applicant to approach through a representation which has to be decided. Thus, according to judgment of the Apex Court rendered above, no contempt is made out against the opposite part.
28. It is well settled that Court dealing with application for Contempt of Courts cannot traverse beyond the order. It cannot test correctness, or otherwise of the order or give additional direction or delete any direction, as it would amount to be exercising review jurisdiction with an application for initiation of contempt proceedings. It is impermissible. The Apex Court had occasion to hold such view in case of Prithawi Nath Ram Vs. State of Jharkhand and others, AIR 2004 SC 4277.
29. The contempt Court while exercising jurisdiction under Section 10 read with Section 12 of Contempt of Courts Act, 1971 is only to see that the order of the writ Court is complied with. It acts like an Executing Court and cannot go behind the order passed, which is to be complied with by the authorities. It is not a Court of adjudication, rather it is an Executing Court.
30. In case, the Contempt Court starts lifting the wheel and adjudicates upon a matter, the entire purpose and the scheme envisaged under the Act, 1971 would fail. The Contempt Court has been given limited jurisdiction, to the extent that in case, a contemnor violates and does not comply the order of the adjudicating Court and there is a wilful disobedience on his part, he is liable to be punished for civil contempt.
31. The Executing Court cannot, in the garb of getting an order of adjudicating Court complied with, enter into an area which is prohibited and adjudicate and record its own finding.
32. In the present case, the writ Court did not decide the lis between the parties, rather it remitted the matter to the competent authority for adjudication. Interference by the Contempt Court into the action of the competent authority would amount to adjudicating the claim, which is not in the domain of the Contempt Court.
33. The Contempt Court has its limitation, it cannot enter the arena which is forbided. The adjudication of a claim cannot be done by the Executing Court, as the role assigned is to the adjudicating authority/Court.
34. Once, the authorities had decided the claim of the applicant, order of the writ Court stood complied with and in case of applicant being dissatisfied, has an efficacious remedy to approach the Court or any forum provided under law, and the same cannot be decided under the contempt jurisdiction. In Dr. U.N. Bora (Supra), the Apex Court had clearly held that no roving enquiry can be conducted by a Contempt Court.
35. Similarly, in Three Cheers Entertainment Private Limited and others Vs. Cesc Limited, 2008 (16) SCC 592, the Hon'ble Apex Court had the occasion to consider whether a contempt proceedings can be drawn by a roving enquiry. The Court held a roving enquiry is not permissible. Relevant paras 25, 29, 30 are extracted hereasunder:-
"25. Indisputably, the majesty of the Court is required to be upheld. The Court must see that its orders are complied with. But for the said purpose, a roving enquiry is not permissible. Several proceedings which seek to achieve the same purpose are unknown to the process of law. If the trial was to be held on the issues framed by the learned Single Judge, it should have been allowed to be brought to its logical conclusion. When the trial was incomplete, we fail to see any reason why the contempt proceeding was heard on affidavits. Even if that was done, reliance was sought to be placed on the depositions of the witnesses in the said enquiry, which was admittedly incomplete. Witnesses affirming affidavits before the learned Single Judge were not being cross- examined so as to enable the counsel for the parties to draw their attention to the earlier statement made by them in terms of Section 145 of the Evidence Act.
29. Contempt of court is a matter which deserves to be dealt with all seriousness. In Mrityunjoy Das & Anr. v. Sayed Hasibur Rahman & Ors. [(2001) 3 SCC 739], this Court held :
"13. Before however, proceeding with the matter any further, be it noted that exercise of powers under the Contempt of Courts Act shall have to be rather cautious and use of it rather sparingly after addressing itself to the true effect of the contemptuous conduct. The court must otherwise come to a conclusion that the conduct complained of tantamounts to obstruction of justice which if allowed, would even permeate in our society (vide Murray & Co. v. Ashok Kr. Newatia). This is a special jurisdiction conferred on to the law courts to punish an offender for his contemptuous conduct or obstruction the majesty of law."
30. In Chhotu Ram v. Urvashi Gulati & Anr. [(2001) 7 SCC 530], this Court held that a contempt of court proceeding being quasi criminal in nature, the burden to prove would be upon the person who made such an allegation. A person cannot be sentenced on mere probability. Willful disobedience and contumacious conduct is the basis on which a contemnor can be punished. Such a finding cannot be arrived at on ipse dixit of the court. It must be arrived at on the materials brought on record by the parties.
Yet again in Anil Ratan Sarkar & Ors. v. Hirak Ghosh & Ors. [(2002) (4) SCC 21], it was opined :
"15. It may also be noticed at this juncture that mere disobedience of an order may not be sufficient to amount to a ''civil contempt' within the meaning of Section 2(b) of the Act of 1971 - the element of willingness is an indispensable requirement to bring home the charge within the meaning of the Act and lastly, in the event two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation - the act or acts cannot be ascribed to be otherwise contumacious in nature. A doubt in the matter as regards the willful nature of the conduct if raised, question of success in a contempt petition would not arise." "
36. After considering the facts and circumstances of the case, this Court finds that as the order of the writ Court dated 30.07.2019 was specific to the extent that the representation of the applicant was to be decided by the Special Land Acquisition Officer, the Committee constituted by District Magistrate has finally adjudicated the claim and found the applicant entitled for the compensation to his 1/3rd share amounting to Rs.75,07,200/-.
37. Thus, if the applicant is aggrieved by the compensation so awarded by the State authorities, he may approach the forum available under the law challenging the said order, but no contempt proceedings are maintainable as there is no wilful disobedience of the order of the writ Court. Once, the claim has been adjudicated, the applicant has a remedy of challenging the same if he is not satisfied by the claim decided by the State officials.
38. The contempt application is devoid of merits and is hereby dismissed.
39. Contempt notice stands discharged.
Order Date:- 25th May, 2022 SK Goswami [Rohit Ranjan Agarwal, J.]