Karnataka High Court
Sri.B.Srinivas Rao vs Sri.B.Krishna Bhat on 30 May, 2012
Bench: D.V.Shylendra Kumar, B.Sreenivase Gowda
1
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
Dated this the 30th day of May, 2012
PRESENT
THE HON'BLE MR JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR JUSTICE B SREENIVASE GOWDA
oft No 468 o2OO9
Between:
SRI. B. SRINIVAS RAO
S/O SRI S BHIMASENA RAO
AGED ABOUT 70 YEARS,
R/ATNO.94, "SAKETHA"
SECOND CROSS. 6ttt MAIN,
AVALAHALLI. B.D.A. LAYOUT
BANGALORE 560 085 ... COMPLAINANT
[By Sri M S Purushothama Rao, Adv.]
And:
SRI. B. KRISHNA BHAT
PRESIDENT,
VISHWA BHARATHI HOUSE BUILDING
COOPERATIVE SOCIETY LTD..
NO.35, RATHNA VILAS ROAD.
BASAVANAGUDI
BANGALORE 560 004.
2. SRI NARASIMHA SWAMY
SECRETARY,
VISHWA BHARATHI HOUSE BUILDING
COOPERATIVE SOCIETY LTD.
NO.35. RATHNAVILAS ROAD.
BASAVANAGUDI,
BANGALORE 560 004
-
2
. SRI SIL)I)AIAH. I .A.S..
COMMISSIONER.
BANGALORE DEVELOPMENT AUTI-IORI1Y
T CHOWDAIAH ROAD
BANGALORE 560 020
4. SRI .JAYARAM
PRESIDENT.
\ ISHWABHARATHI HOUSE BL ILDI\(
CO-OPERATIVE SOCIETY LTD.,
NO.891, 'ANUGRAHA".
SRI MANJUNATHASWAMY TEMPLE ROAD
2N1i MAIN ROAD. S B M COLONY
OPP. LALITHA SRINIVAS GOWDA'S HOUSE
(EX-CORPORATOR)
BANGALORE 560 050.
-
5. SRI VADIRAJ
SECRETARY,
VISHWABHAPATHI HOUSE BUILDING
CO-OPERATIVE SOCIETY LTD.
NO.35, RATHNA VILAS ROAD,
BASAVANAGUDI,
BANGALORE 560 004
- ... ACCUSED
[By Sri D Venugopal. Mv. for Al & A2:
Sri V B Shivakumar, Adv. for A3:
Sri Y A Sudhakar Babu. Ad'. for A4:
M/s Y A Sudhakar Bahu. B L Sanjeev. Advs. for A5:
Sri G Nagarajulu Naidu. Aclv. for
proposed impleading respondents]
THIS CCC IS FILED U/S II & 12 OF THE CONTEMPT OF
COURT ACT PRAYING TO INITIATE CONTEMPT PROCEEDINGS
AGAINST THE ACCUSED FOR DISOBEYING THE ORDER DATED
11.10.2007 AND 06.03.2008 AND PASS APPROPRIATE ORDERS ON
SUCH TERMS ANI) CONDITIONS THAT THIS F-IONBLE COURT
DEEMS FIT. IN THE FACTS AND CIRCUMSTANCES oF THE CASE,
IN THE INTEREST OF .JUSTICE AND EQUITY AND ETC..
THIS CCC COMING ON FOR HEARING, THIS DAY,
SBYLENDRA KUMAR J., MADE THE FOLLOWING:
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ORDER
Sixty-eighth writ petitioner in a batch of writ petitions in WP No 16615 of 2006, which was clubbed together in WP No 12236 of 2006 and connected with many other similar petitions, is the complainant in this contempt petition. While most of the writ petitioners were all members of a society by name Vishwa Bharathi House Building Cooperative Society [for short, the society], which society was a respondent in such petitions filed by its members, the society itself was petitioner in WP No 8773 of 2007, impleading state of Karnataka as first respondent and Bangalore Development Authority [BDA] as second respondent. In all other writ petitions, other than petition of the society itself, state of Karnataka and BDA were common respondents, apart from other respondents in some petitions.
2. Members of the society, who figure as writ petitioners, had approached the court seeking for relief 4 against the oppressive act, if any, on the part of the BDA to their detriment either by dispossession of their occupation of sites allotted by the society or for seeking protection from demolition of construction put up by the petitioners by a task force of the BDA in the name of the constructions being unauthorized etc.
3. Such writ petitioners like the complainant herein, had sought for the following relief:
PRAYER WHEREFORE, the petitioners above named most respectfully pray that this Hon'ble Court may be pleased to:
a) Issue a writ in the nature of certiorari or any other appropriate writ, order or direction, quashing the order dated 44.2OO6 passed by the 1s respondent in number NwA:E:267 Ben:A:Se/2004 vide AnnexureE.
b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent No.2 to regularize the occupation and possession qf the petitioners/ members of respondent No.3 over their respective sites bearing No, 971, 157.
1077/13/1 ...situated in 4fli Phase, Viswabharathi Housing Complex Layout,
4..
5Girinctcir. Bangalore 560 085. jbrmed in Survey Nos. 101. 103/1. 103/2. 104/1.
104/2, 105 and 106 of Ilosakerehalli Village qf Bartgalore South Taluk and Sy.Nos. 16, 17, 18 and 19 of Gerehalli Village of Bangalore South Taluk.
Or in the alternative
c) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent No.2 not to disturb the possession of the petitioners over their respective sites mentioned above till the consideration of their representation, which is pending consideration pursuant to a note dated 15/6/06 put up by the Hon'ble Chief Minister in that regard vide Annexure F. --
d) Grant such other and jiirther reliefs that this Hon'hle Court deems fit under the facts and circumstances of the case, in the interest of justice.
A copy of the writ petition is produced before the court by the accused person -- B Krishna Bhat.
4. These batches of writ petitions had elicited two orders, which are made subject matter of this contempt petition viz., order dated 11-10-2007 reading as under: 6
NKJ:
1 L-102007 w .
T P.Nos.
13917/2006, 14643, 15288, 15410, 15411. 15412, 15516. 15624, 15769. 15831, 16027, 16129, 16206, 16320. 16322, 16596, 16615, 07,8773 and 2007 The Government has passed an order directing the Bangaiore Development Authority to make bulk allotment in favour of the society, Vishwabarathi House Building Cooperative Society Limited, Bangalore, on 4.10.2007 subject to the conditions mentioned therein. As is clear from the order, the said decision is taken by the Government not looking into the society but looking into the petitioners who are before this Court who have been allotted sites by the society where the petitioners have put up constructions and are living with their family members, Thereftwe, it is treated as a special case. The petitioners apprehend in spite of the said direction from the Government, the BDA may not give effect to the order of the Government. Therefore, they request the Court to fix a time limit within which the Government order is implemented.
2. After hearing the learned counsel for all the parties in these proceedings, I find that f the Government order is implemented by the BDA there is no necessity to consider the case on merits as the writ petitions would become infructuous. Therefore, the BDA is directed to implement the Government Order dated 7 4.10.2007 within three months from today and report to this Court.
but, more importantly a subsequent order dated 6--3-2008 at the time of final disposal of the baich of writ petitions and considerable reliance is placed on para-6 of this order. reading as under:
6. The perusal of the Government order, dt. 04.10.2007 clearly shows what has weighed with the Government in agreeing with the recommendation of the respondent B.D.A. for making bulk allotment is public interest. The petitioner Society shall scrupulously observe all the conditions contained in the Government order both in their letter and spiril. Further, it is open to the petitioner allottees to (a) approach this Court. f the allotment made by the petitioner Society is not being honoured. (h) approach the Registrar of Co-operative Societies for enquiry invoking Section 64 of the Karnataka Co-operative Society's Act. 1959 and (c) bring to the notice 0/ the respondent B.D.A. any specUied breaches of the Government order. dt. 04.10.2007. Until such time that all the issues are sorted out pursuant to the issuance of the aJbre men tioried Government order and the Resolution passed by the B.D.A. the structures standing on the sites in question shall not he demolished. Such of the petitioner allottees. who have got their
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building plans sanctiàned by the competent authority may go on with the construction. to allege that the accused person Is In contempt of these orders, particularly by not furnishing the seniority list of members who had aspired for allotment of sites at 4th Phase, Girinagar Layout, Bangalore.
5. Dining the pendency of the contempt petition, particularly after Issue of notice to the accused person, this court had made several observations and had passed further orders, some of them In the nature of directions to the accused person and submission of Sri M S Purushothama Rao, learned counsel for the complainant, Is that In addition to the accused person having disobeyed or disregarded the earlier two orders of this court referred to above, there Is even as of today, disregard of further directions Issued by this court In this contempt proceedings, particularly, the orders dated 4-3-20 10 and 15-3-2010, readIng as under:
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NIWJANJ 4-3-10 The society is directed to produce before the court the list of its members and the List of members who have applied for sites giving the date of their membershIp, the date on which they made the initial deposit for allotment of site, my Monday, the 832O1O.
NiWIANJ 15-3-2010 Accused is not present before court. Accused has not produced list of particulars showing seniority as directed in the order dated 832O1O. The counsel jr the society submits that yesterday there was general body meeting. Accused did not participate in the general body meeting. They seek a week [sic] time to place on record the state of affairs.
Call next week.
Accused No 1 to be present in the court in all hearing dates untilfurther orders.
and submitted that non-comp1iance with such further directions is an aggravating circumstance and the accused person has with impunity violated and disregarded such court orders/directions and is liable for punishment for contempt.10
6. Notice had been issued to accused person and counter has been filed denying the allegations and pleading that the accused person has not disregarded any orders of the court or committed any contempt etc: that the accused person though was president of the society since its inception, he was removed from the president- ship by an order of the registrar of societies with effect from 17-8-2009 and that he has no say in the functioning of the society thereafter, but has, nevertheless, in obedience and respect to court orders and has strive to assist the court or giving effect to the court orders to the extent it was possible for him; that there was no deliberate or intentional disobedience of the court orders and therefore has prayed for dismissing the contempt petition.
7. However, this court being not satisfied with the explanation offered, proceeded to frame charges against 4"
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the accused person as per charge framed on 4-2-2O 1 1.
reading as under:
CHARGE We, Justice N,Kumar and Justice Ravi Malimath, Judges of the Bench of the High Court of Karnatuku, do hereby charge you.
Shri B.Krishna Bhat,President, Vishwa Bharathi House Building Cooperative Society Ltd.. No. 35. Rczthna Vilas Road, Bascwanagudt, Bangalore 560 004.
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as follows:
The Government by an order dated 4.10.2007 made bulk allotment of land to the Vishwabharathi House Building Cooperative Society Thr the purpose of allotting the sites to its members on the basis of genuineness of their membership as well as seniority and the BDA was directed to issue sanctioned plan of the layout after collecting the requisite fee as well as betterment charges. On the basis of the Government Order, on ii. 10.2007 in W.P.No. 12236/2006 the BDA was directed to implement the Government Order dated 4.10.2007 within three months from that day.
You, as the President of the society was expected to furnish the list of genuine members showing their seniority which you failed to do so and. thereJbre. the present contempt petition was initiated to take action against you. This 12 Court by an order dated 4.3.2010 passed the following order which you. did not obey.:
The society is directed to iroduce bejore the Court, the List of its members and the List of members who have applied JOr sites giving the date of their memberslup. the date on which they made the initial deposit jOr allotment of site by Monday, the
8.3 .201 0.
Subsequently. on 15.3.2010. the bUowing order came to be passed which you did. not ohey:
Accused is not present before Court. Accused has not produced List of particulars showing seniority as directed in the order dated 8.3 .2010. The counsel for the society submits that yesterday there was general body meeting.
Accused did not participate in the general body meeting. They seek a week time to place on record the state of affairs.
Call next week.
Accused No. 1 to be present in the Court on all the hearing dates until furt her orders.
On the contrary, you. filed an application fOr recalling the aforesaid orders which came to be rejected by this Court on 16.7.2010 holding as iinder :-
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'On behajf of the society. It was submitted that no records are handed over to them, much less the records evidencing the seniority list of the members and the date of initial deposit for site. It is obvious that the accused has no respect for the orders of this Court He was the President on the day, the said orders were passed. He was the person in possession of all the records. He is the person who is duty bound to produce before the Court the seniority list, the particulars of the amounts In deposit As per the aforesaid orders in Writ Petition No. 12326/2006. the allotment of sites have to be made purely on seniority basis and that was the situation on the day Government passed order and on the basis of which. the Court has issued directions. It is too late In the day for the accused to contend that he is no more the President he is not In possession of the books and therefore. he cannot be compeUed to produce the same. It is only yet another attempt on the part of the accused to over reach this Court Already he is facing contempt. He is frying to dis-obey the orders of this Court passed In the contempt proceedings. He is putting forth obstacles in getting at the truth and, deserving persons getting relief in pursuant to the 14 orders of this Court as well as the Government. There are no honafides. Hence, application is rejected"-
You challenged the matter hejbre I he Apex Court by jiling Special Leave to Appeal (Civil) No. 25641/2010 which came to be dismissed. Thereafter. the followinq order came to be passed on 1910.2010:
"Learned counsel Jr respondent No.1 having obtained instructions from respondent No. 1 who is present in Court in person states. that respondent No. 1 shall produce the seniority list in terms of the directions issued by this Court on 4.3.2010 in this Court on the next date of hearing.
Adjourned to 16.11.2010.
Respondent No.1 is directed to be present in Court in person on the next date of hearing."
You did not comply with the said order. Again on 16.11.2010 the frllowing order is passed which order is again not obeyed:-
"Learned counsel for respondent No.1 undertakes to fully comply with the order passed by this Court on 4.3.2010 within Jur weeks from today.
List again on 4.1 .201 1."
ThereThre, it is clear from the ajbresaid conduct of yours [sic]. ijou are willfully disobeying the orders and directions issued by this Court and 15 tjou hare williuliti disobeyed the undertaking given to this Court. Thus, you have committed civil contempt which is punishable under Section 12 of the Contempt of Courts Act. 1971.
We hereby direct that ijou be tried by this Court on the said charge.
Dated this the 4th day of February. 2011.
8. The accused person having pleaded not guilty, the matter was set down for trial. On behalf of the complainant., complainant is examined as PW1 and the documentary evidence comprised in ExP1 to 13. mainly consist of order of the court in question. On behalf of the accused person, he has entered witness box and deposed as DW1 and got marked ExR1 and 2 and he has also been cross-examined by the counsel for the complainant.
9. In a contempt proceeding, particularly for disobedience or disregard of court orders, the very court order constitutes the basis for taking action and the directions issued therein as to the manner in which the person who was required to implement the court orders 16 has conducted In the matter of implementation of the court order.
10. Sri Purushothania Rao, learned counsel for the complainant, with reference to these çrders and other material brought on record, has made a very vehement submission that this is a clear instance of the accused person having not only disregarded the court orders but having consistently breached his own undertaking and assurance given before the court; that it is a clear case of contempt on the face of the record and therefore action as is contemplated in law is warranted and urges for the same.
11. Sri Purushothama Rao has drawn our specific attention to the order dated 6-3-2008 to submit that it was the duty of the society to ensure that bulk allotment of sites made by BDA in favour of the society In terms of the Government Order dated 4-10-2007 was fully effectuated; that the society should have acted in a proper fr-v 17 and purposeful manner to ensure compliance with the government order; that there Is a clear direction contained In the order dated 6-3-2008 to this effect; that even assuming that the accused person had been removed from the president-ship of the society from August. 2009 onwards, the accused person was nevertheless at the helm of the affairs of the society being Its president ever since 6- 3-2008 up to the date when he was removed from the post, but has not made any effort to Implement or giving effect to the court order or for effectuating the government order dated 4-10-2007, which could have enabled persons like the complainant to get a site allotted In a proper manner; that non-furnishing of the list of members who had applied for sites In W Phase, Ghlnagar layout In the order of seniority was an intended act on the part of the accused person, particularly for non-effectuation of the government order as well as court orders and more Importantly, has drawn our attention to the admissions made by the accused person himself during the course of 18 cross-examination of the accused person as indicated In paras- 10 and 11 of the deposition of the accused person, to submit that there is a clear admission by the accused person that he not only had given an undertaking to furnish a list of members to the court also. but had not done so till date and therefore there is a very clear case of disregard and violation of court orders and directions.
12. AppearIng on behalf of the accused person, submission of Sri D Venugopal, learned counsel, with reference to the counter filed, is that there was never any deliberate attempt on the part of the accused person to disobey or disregard court orders; that there was no action which was required to be carried out or obeyed In terms of the two orders of the court dated 11-10-2007 and 6-3- 2008; that there was not even any direction to the society, much less to the accused person, but the accused person, nevertheless, has strived to give effect to the court orders by ensuring that the society cooperated with the 19 proceedings till the accused person was president of the society, but in respect of the developments after he was removed from the president-ship of the society, he is helpless and has, therefore, submitted that the accused person cannot be found guilty of committing contempt of court orders.
13. Sri Venugopal has also pointed out that the complainant is blowing hot and cold before this court even while invoking contempt jurisdiction seeking for the accused person being punished, by drawing out attention to the pleadings in the writ petition, in which the complainant figured as the 68th petitioner and in particular has drawn our attention to para- 18 of the petition pleadings, a copy of which has been produced and marked as ExRl. Para-l8 reads as under:
18. Thus it can be seen that all the petitioners are allotted their respective sites by the 3'' respondent society for valuable consideration and registered sale deeds are also executed in their favour with respect to their respective sites. They have been paying taxes to the V. 20 Bangalore Mahanagara Palike and they are registered as owners of their sites in the Mahanagara Palike records. F'urther, as pointed out above, they have started construction in their respective sites and they have already spent huge money for the same. It is at this juncture that the officials of the 2 respondent headed by the Superintendent of Police, Task Force and officials from the 2' respondent Engineering Department, are threatening the petitioners that the constructions would be demolished and not allow any further cons tructtons, as according to them they are unauthorized constructions.
14. With reference to this plea, Sri Veunugopal submits that the complainant is unnecessarily crying hoarse about not getting a site because of non-furnishing of the seniority list of the members by the society; that even as per the very pleading as contained in this paragraph of the writ petition, complainant had been allotted a site [site No 1076/21 by the society and the complainant had been put in possession thereof, but the grievance was that the structure that was put up by the complainant and persons like him may be razed down or they may be / 21 evicted from the site by the officials of BDA and therefore had approached the court for protection.
15. Based on this plea, submission is that such a person cannot turn around and complain that he is affected by the act of non-furnishing of the seniority list of members of the society and therefore submits that the alleged Inaction is neither true nor genuine, but a simulated one, just to harass the accused person and therefore the contempt petition deserves to be dismissed.
16. Even with regard to the so-called admissions, Sri Venugopal points out that the accused person has only showed due deference and respect to court orders and has been willing to obey court order and maldng conscious efforts to comply with court orders: that even when the accused person was not at the helm of affairs of the society after August, 2009, has, nevertheless, made efforts to obtain the list of members of the society and in fact has placed such a list before this court, but by oversight It has 22 not been recorded In the order sheet: that there is absolutely no disregard or non-compliance and more so as the accused person had no other interest in the matter etc.
17. Sri Purushothama Rao, learned counsel for the complainant, Joins issue and points out that, firstly the writ petitions had been ified at a stage before the government order dated 4-10-2007 had come to be passed and In fad it is because of this development, this court made obsenrations as per order dated 11-10-2007 and even subsequent order dated 6-3-2008 was mainly because of the government order and the position indicated therein.
18. With regard to the so-called production of seniority list. Sri Purushothama Rao points out that assuming that such a list of members has been placed by the accused person before this court. what was required to be furnished was a list of members who had applied for V 23 allotment of sites in the IV Phase, Girinagar layout and not a general list of members of the society etc.
19. We have perused the petition pleadings, looked into the charge and the materials placed before the court and have also bestowed our attention to the submissions made at the Bar.
20. Contempt proceedings are serious business and exercise of jurisdiction in contempt proceedings is essentially to ensure that dignity and efficacy of the judicial system is maintained; that majesty of justice is not either belittled or trivialized and ultimately court orders and directions are not disregarded or disobeyed to avoid the consequences of court orders. If court orders are not complied or not obeyed or not given effect to, there will not be any value for court orders and the judicial system and the justice delivery system will be rendered impotent and futile.
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21. In the scheme of this. particularly for a proper maintenance of law and order in the society, more so for an orderly living in the society, it is very essential that Judiciary, which is given the power of arbitrating over disputes between private citizens and even between citizens and the state, is effective and respected. Contempt proceedings are proceedings taken up in this background when any person complains there is violation of court order or deliberate disregard of the court orders.
22. A perusal of the orders dated 11-10-2007 and 6-3- 2008 does not necessarily reveal a clear or categorical direction Issued by this court either to the society or to the accused person. The accused person has ceased to be a director of the society on and after August. 2009. Therefore, it can only be the conduct of the accused person subsequent to the dates of these orders till the date up to which the accused person was functioning as president of the society, which is relevant for examination in the contempt petition.
jfr/' 25 petition are concerned, we are of the view that in terms of lhe judgment of the Supreme Court in the case of UNION OF INDIA vs SUBEDAR DEVASSY P V [(2006) 1 5CC 6131, a judgment on which reliance is placed by Sri Venugopal, learned counsel lbr the accused person. subsequent orders passed cannot be any consequence for taking action in contempt jurisdiction and contempt proceedings, if at all, should confine to the order of the court in respect of which disobedience or disregard is complained of and which had been made subject matter of contempt proceedings. It is, therefore, we are not looking into the subsequent development during the pendencv of the contempt proceedings, but are confining our examination in the wake of the earlier orders which were specifically made subject matter tbr taking action against the accused person as per the pleadings and relief in the contempt petition.
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23. As already noticed, in so far as the order dated II- 10-2007 is concerned, we find there is no clear or specific direction at all to the society and if at all a development during the pendency of the petition in the wake of government order dated 4-10-2007 was taken note of, it should be held that the petition virtually does not survive for further examination etc.
24. While there is an observation in terms of the order dated 6-3-2008 as per para-6 of the order that the society should strive to effectuate the government order etc., we do not find anything on record brought out against the accused person as to in what manner the accused person has acted for either aborting this order or positively disobeying this order. Action under contempt Jurisdiction Is only in respect of deliberate disregard or an intentional disobedience of the court orders and not otherwise.
25. This apart, Sri Venugopal, learned counsel for the accused person, has drawn our attention to the Judgment 27 of a Division Bench of this court rendered on 8-6-2009 in WA No 1454 of 2008 and connected matters. a copy of which Is produced and marked ExR2, to submit that if at all persons like the complainant if were aggrieved, were required to raise a dispute before the registrar of cooperative societies, as the dispute Is an inter se dispute between a member of the society and the society and therefore there could have been a more appropriate way even In terms of the Judgment of the DMslon Bench ot this court referred to above.
26. In fact, even the single Judge order dated 6-3-2008 also makes a reference that It Is open to the members of the society, If are not satisfied with the manner of implementation of the government order dated 4-10-2007, to raise a dispute before the registrar of cooperative societies seeking for an enquiry in terms of Section 64 of the Karnataka Cooperative Societies Act. 1959 and to 28 pursue the matter there and also to bring to the notice of BDA.
27. Be that as it may, we find that while the complainant has invoked contempt jurisdiction, as, perhaps, was advised that it should be an effective way to get relief etc., while examining the matter in contempt jurisdiction, we are not so much concerned for that, but as to the conduct of the accused person In obeying or disobeying court orders, if the accused person was required to do so.
28. On the present pleadings and the materials on record, we cannot hold the accused person guilty for having committed deliberate disobedience or disregard of any positive directions issued by this court In respect of the accused person.
29. It is for these reasons. we are exonerating the accused person of the charges levelled against him and 29 dismiss this contempt petition. It is always open to the complainant to pursue his remedies with the society in any other manner before any other statutory authority as per law and dismissal of this petition does not come in the way of seeking such relief before any other forum.
Sd! 3UDGE Sd/a JUDGE pjk