Himachal Pradesh High Court
Rulda Ram vs State Of Himachal Pradesh And Another on 12 July, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No.4158 of 2009.
Judgment reserved on : 21.06.2016.
Date of decision: July 12, 2016.
Rulda Ram .....Petitioner.
of
Versus
State of Himachal Pradesh and another .....Respondents.
rt
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes For the Petitioner : Mr.Ajay Sharma, Advocate.
For the Respondents : Mr.Shrawan Dogra, Advocate
General with Mr.Anup Rattan,
Mr.Romesh Verma, Additional
Advocate Generals and
Mr.J.K.Verma, Deputy Advocate
General.
Tarlok Singh Chauhan, Judge.
By medium of this petition, the following reliefs have been prayed for:-
"i) That a writ of Certiorari may very kindly be issued and impugned in action on the part of the respondents as is conveyed to the petitioner vide letter dt.25.3.2009 under Right to Information Act, 2005, may very kindly be quashed and set aside.
ii) That a writ of Mandamus may very kindly be issued thereby directing the respondents to adhere to the mandate of this Hon'ble Court as given in Civil Writ Petition No.563/2002 and correct the revenue records accordingly and further to handover the possession of the school ground to the school authorities, in the interest of law and justice."
Whether the reporters of the local papers may be allowed to see the Judgment? ::: Downloaded on - 15/04/2017 20:47:45 :::HCHP 2
2. The subject-matter of the petition is property commonly known as 'potato ground' situate at Manali and the grievance of the .
petitioner is that despite having given an undertaking before this Court that no building/mini secretariat shall be built on this piece of land and the same shall be allowed to be used as a playground by the Government Senior Secondary School, Manali, (for short 'School'), the respondents of have not adhered to the said undertaking constraining him to file the instant petition.rt
3. The petitioner alongwith three other persons had earlier approached this Court by medium of writ petition No.563 of 2002 wherein they had prayed for confining the use of the property as a playground or other educational related activities of the school and restraining the respondents from changing the use and nature of the land in any manner whatsoever which were not related to the school curriculum.
4. On 14.10.2003, the then learned Advocate General placed on record a communication received by him from the Principal Secretary (Education) and on the basis of the said communication, the petition being CWP No.563 of 2002 was disposed of in the following terms:-
"When this case was taken up today, Shri M.S. Chandel, learned Advocate General placed on record original communication received by him from the Principal Secretary (Education), to the Government of Himachal Pradesh, Shimla. Its contents are extracted hereinbelow:-
"Subject: CWP No.563/2002-Rulda Ram Vs. State of H.P. and Ors.
Sir, I am directed to refer to the above mentioned Civil Writ Petition which is pending disposal in the Hon'ble High Court of Himachal Pradesh.
In this regard, it has been decided that no Government Building/Mini Secretariat shall be built on the ::: Downloaded on - 15/04/2017 20:47:45 :::HCHP 3 piece of land which is in the possession of Education Department and the same has been allowed to be used as .
a playground by the Government Senior Secondary School at Manali, District Kullu, Himachal Pradesh.
You are, therefore, requested kindly to apprise the Hon'ble High Court of the same accordingly.
Yours faithfully, Sd/-
of
Deputy Secretary (Edu.)
to the Govt. of Himachal
rt Pradesh.
In view of what has been extracted hereinabove, nothing survives in this writ petition, which is accordingly disposed of.
Interim order, if any, shall stand vacated and pending application, if any, shall also stand disposed of."
5. However, on the same subject-matter another petition being CWP No.528 of 2003 was preferred by one Raj Chauhan and during the course of proceedings various orders came to be passed from time to time by this Court and the same were also complied with and given effect to by the respondents. The petitioner on coming to know about the aforesaid petition himself filed an application for being impleaded as a party and the same was allowed and the petitioner was permitted to intervene in the matter. This petition, however, came to be withdrawn by the petitioner therein on 08.05.2008.
6. Now the grievance of the petitioner is that once the writ petition being CWP No.528 of 2003 had been withdrawn, then all that was done in compliance to the directions (termed to be interim directions by the petitioner) was required to be undone as the interim orders were no longer in operation and had been ordered to be discharged.
7. The respondents have filed their joint reply wherein it has been averred that no doubt an order on the basis of the instructions imparted by the respondents on 14.10.2003 came to be passed by this ::: Downloaded on - 15/04/2017 20:47:45 :::HCHP 4 Court in CWP No.563 of 2002, but it was in compliance to the subsequent orders passed by this Court in CWP No.528 of 2003 that the .
property has been put to an entirely different use than the one recorded in the aforesaid order i.e 14.10.2003.
8. It is further averred that on 06.05.2005 this Court had specifically directed the respondents "to use the land in the best public of interest", pursuant to which the space near the Civil Hospital and Judicial Complex was rtimmediately made under the control of Deputy Commissioner, Kullu, and thereafter the State Government had proposed to construct a Cultural Centre in addition to multi level parking over this land. It is lastly averred that though the writ petition being CWP No.528 of 2003 was dismissed as not pressed, however, as the earlier orders passed by this Court had already been complied with, the same cannot now be undone.
We have heard the learned counsel for the parties and also gone through the records of the case.
9. At the outset, we may note that the petitioner alongwith the instant writ petition had also filed a COPC No.415 of 2014 complaining violation of the judgment dated 14.10.2003 in CWP No.563 of 2002 on the ground that entry rapat No.179/5-12-06 had been made whereby the land in question had been mutated in the name of the HRTC.
10. The Deputy Commissioner, Kullu, was arrayed as respondent, who in his defence has stated that the entire exercise undertaken by him was in compliance to the directions passed from time to time in CWP No.528 of 2003 and this action had otherwise been questioned by the petitioner by filing CWP No.4158 of 2009 and, ::: Downloaded on - 15/04/2017 20:47:45 :::HCHP 5 therefore, the contempt petition was misconceived and consequently not maintainable.
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11. The question which arose for consideration in those contempt proceedings was that as to whether the Deputy Commissioner could be held guilty of the contempt of Court when admittedly he had acted in compliance and in furtherance of the orders passed by this of Court. This question was answered by observing thus:-
"11. rtTested on the touchstone of the guidelines and parameters as laid down by the Hon'ble Supreme Court in Ram Kishan's case (supra), we are unable to agree with the submissions of the petitioner that the respondent has deliberately and willfully disobeyed the orders passed by this Court. The proposal to raise a multi level parking or transferring the land in the name of the Transport Department has been done only because there was a direction passed to this effect by this Court in CWP No.528 of 2003. The respondent of his own has not done any act which can be said to be amounting to willful or deliberate violation of the orders passed by this Court. Once the action of the respondent cannot be construed to be intentional, conscious, calculated or deliberate and done intentionally so as to disobey the orders passed by this Court, he cannot be prosecuted or punished under the Contempt of Courts Act. Surprisingly, even till the year 2009 when the petitioner filed CWP No.4158 of 2009, he did not find the action of the then Collector-cum-Deputy Commissioner to be contemptuous, then why the petitioner has now chosen to target the present incumbent is not forthcoming."
12. Further, it is not even disputed by the petitioner that whatever has been done at the site and whatever decisions have been taken from time to time were infact in compliance to the directions passed by this Court in CWP No.528 of 2003. His only grievance, as observed earlier, is that once the petition was withdrawn, then all the interim orders had lost their efficacy and now whatever had been done in pursuance to those interim orders was required to be undone by the respondents. ::: Downloaded on - 15/04/2017 20:47:45 :::HCHP 6
13. To say the least, we find this submission to be rather strange and unfounded. Once, the petitioner was permitted to intervene in CWP .
No.528 of 2003 and even otherwise when the State was respondent in both the cases, then obviously this Court was already aware and alive to the earlier orders passed in CWP No.563 of 2002 and being fully conscious still chose to pass various orders from time to time which were of otherwise required to be complied with by the respondents.
14. In addition to the aforesaid, it would also be noticed that rt CWP No.528 of 2003 had not been dismissed on merits, but had simply been dismissed as withdrawn. Moreover, even the interim orders were not ordered to be vacated, but were only ordered to be discharged as is evident from the orders passed on 08.05.2008 which read thus:-
"Counsel for the petitioner does not press this petition.
Accordingly, the Writ Petition is dismissed as not pressed, so also the pending applications. Interim order is discharged.
Consequence to follow."
15. In Black's Law Dictionary, Tenth Edition, "discharge" mean "Any method by which legal duty is extinguished". The necessary consequences of the interim orders being only discharged and not vacated, in such peculiar circumstances, would only mean extinguishing the respondents' further legal duty to further comply with the orders passed in CWP No.528 of 2003, but that in no manner can be construed as having the effect of nullifying the judicial orders already made.
16. Needless to add that the approach of the Court in such like matters has to be both practical as also pragmatic. It is more than settled that no one can be penalized for no fault of his and, therefore, no fault can be found with the action of the respondents in their having complied ::: Downloaded on - 15/04/2017 20:47:45 :::HCHP 7 with the orders subsequently passed by this Court in CWP No. 528 of 2003.
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17. In such like situation, the Court has further to bear in mind that it is the respondents whose position is extremely vulnerable and precarious and in case the arguments raised by the petitioner are taken to its logical end then the respondents without any fault on their part will of be obliged to choose between the devil and deep sea i.e. either to comply with the earlier orders passed in CWP No. 563 of 2002 and rt thereby disobey the orders subsequently passed in CWP No.528 of 2003 and vice-versa. This cannot be and was never the intent of the orders that were subsequently passed in CWP No.528 of 2003.
18. It is entirely a different matter that the petitioner in CWP No.528 of 2003, all of a sudden, chose to withdraw the petition but that cannot be a ground for hauling up the respondents or finding fault in their actions that too only because they complied with the orders passed by this Court which they otherwise were obliged and mandated to do so. Even otherwise, the petitioner after having actively participated in the proceedings in CWP No.528 of 2003 cannot indirectly question the orders that were not only passed but had also been implemented in his presence.
19. It is too late in the day and the clock cannot be reversed. That apart, it is not a case where the respondents themselves have retracted or violated their undertaking and commitment as reflected in the order dated 14.10.2003 passed in CWP No.563 of 2002 (supra). But, it is only on account of the subsequent orders passed by this Court from time to time that has compelled the respondents to change their position to the one which was earlier committed by them. It is, therefore, preposterous to ::: Downloaded on - 15/04/2017 20:47:45 :::HCHP 8 contend that the respondents should now undo all that has been done in compliance to the lawful orders of the Court.
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20. In view of what has been discussed above, we find that the petitioner's stand is only litigious and cantankerous and the petition has been filed only to harass the respondents whose only fault is to have complied with the lawful orders passed by this Court from time to time of that too in a petition wherein the petitioner himself was permitted to intervene. rt
21. Having said so, the petition is sans merit and the same is accordingly dismissed. Pending application, if any, also stands disposed of.
(Mansoor Ahmad Mir), Chief Justice.
( Tarlok Singh Chauhan), July 12, 2016. Judge.
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