Full Judgment Text
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CASE NO.:
Review Petition (civil) 44 of 2005
PETITIONER:
Bihar Finance Service H.C. Coop. Soc. Ltd
RESPONDENT:
Gautam Goswami & Ors
DATE OF JUDGMENT: 05/03/2008
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
CONTEMPT PETITION (C) NO. 44 OF 2005
IN
CIVIL APPEAL NO. 1357 OF 2003
S.B. SINHA, J :
1. This contempt proceeding has a chequered history. Petitioner is a
cooperative society. It intended to have a plot for construction of houses for
its members.
A requisition was made for acquisition of land for the said purpose on
their own behalf before the State on or about 3.07.1973.
2. Land acquisition proceedings were initiated pursuant thereto. A
notification under Section 4 of the Land Acquisition Act, 1894 was issued.
The owners of the land filed objections under Section 5A of the Act.
Overruling the said objection, the proceedings were continued. A
declaration under Section 6 of the Act was issued followed by an award. In
the said proceedings, 59.94 acres of land was acquired. Petitioner \026 Society
deposited the entire amount of compensation.
Several writ applications came to be filed before the Patna High Court
questioning the said proceedings.
3. The said writ petitions were allowed by the High Court stating:
"40. For the reasons aforementioned in considered
opinion, all the writ applications are fit to be
allowed and the impugned declaration under
Section 6 of the Act vide notification dated
16/18.03.1983 as contained in Annexure \026 2 in
C.W.J.C. No. 2755 of 1988 is fit to be quashed.
The case, however, has to be remitted to the
respondents State Government for further
proceeding in the matter of inquiry under Section
40 of the Act and Rule 4 of the aforementioned
Rules and under the Act for inquiry under Section
5A of the Act until objections filed by the
petitioners in accordance with law."
4. However, on an appeal preferred thereagainst, this Court in Shyam
Nandan Prasad and Others v. State of Bihar and others (since reported in
(1993) 4 SCC 255), while clarifying the law operating in the field stated that
where such a requisition is made on the part of a Company which a
cooperative society is, Part VII of the Land Acquisition Act, 1894 shall
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apply. This Court in its judgment invoked the principle of ’individualized
justice’ directing:
"22. Having thus clarified the law governing the
field, we would open doors for streams of equities
and discretions to enter in the exercise of power by
the High Court under Article 226 of the
Constitution. As observed earlier, we are of the
view that the High Court should not have upset the
notification under Section 6 of the Act as a whole
and should have individualised justice vis-a-vis
each writ petitioner before it, having regard to the
equities interplaying in each case and to the
regulation of its discretion keeping in view host of
other factors which weigh with the High Court to
deny, grant or mould relief even when illegalities
in procedure keep staring. Thus for the view afore-
expressed, we allow these appeals, set aside the
impugned orders of the High Court and remit all
these matters back to it with the request that
though it may take them up as a batch, it may give
individual attention to each case, view the
illegalities pointed out by the writ petitioner in
their right perspective having regard to the time
factor and confine the relief, if due, to him
separately. We shall not be taken to have
controlled the discretion of the High Court in
administering individualised justice and amongst
others it may, with the cooperation of the Society
and of the State Government, as also the writ
petitioners examine the possibility of an equitable
solution so that the fist of law and the discretion of
the court do not hurt unbearably. We thus remit the
matters to the High Court without any order as to
costs."
The High Court pursuant to the said direction had passed an order
dated 20.06.2001 directing release of 12.9603 acres of land. Claims in
respect of the rest of the lands were rejected and the District Magistrate
Patna was directed to identify the lands and deliver possession thereof to the
petitioner \026 society, if necessary, after the demolition of the constructions
made thereon.
In the meanwhile, several transactions were made. Several
constructions, some of which were totally illegal, came up in some portions
of the acquired lands.
One Ashish Sahkari Grih Nirman Samiti preferred an appeal
thereagainst before this Court upon obtaining special leave being Civil
Appeal No. 1357 of 2003. By a judgment and order dated 18.08.2004, this
Court further released 17.68 acres of land in favour of various contenders
directing:
"The remaining available land, shall be allotted to
the Bihar State Finance Service House
Construction Cooperative Society for whose
benefit the acquisition of land was made.
This Society is liable to pay compensation amount
as may be determined by competent authorities/
courts in respect of the land to be allotted to them
as stated above.
The Collector or the authorized officer shall
complete the acquisition proceedings in all
respects and hand over possession to the parties in
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terms afore-stated within a period of four months
from today.
The impugned order of the High Court shall stand
modified to the extent indicated above. In all ther
respects, the impugned order shall remain
undisturbed.
This order does not preclude the competent
authority (Patna Regional Development Authority)
to proceed in accordance with law with regard to
the constructions already made, if they are not in
accordance with law. Further, the construction to
be made in the area to be allotted, as stated above,
by the parties shall be in accordance with the
planned development after obtaining necessary
permissions from the competent authorities. The
appeals are disposed of in the above terms."
5. Allegedly, the said order was not complied with.
6. Although the Patna Regional Development Authority (PRDA) was not
a party to the appeal, it was called upon to proceed in accordance with law
as regards constructions already made in violation of the extant statute. It
was furthermore directed that the constructions in the areas be allowed to be
made only in terms of the development plan and upon obtaining necessary
permission from the competent authorities. PRDA or other authorities of the
State of Bihar allegedly did not comply with the said directions. Several
new constructions were made in total disregard of the statutory provisions.
7. When the time granted by this Court in the aforementioned order
expired, a notice was issued. An affidavit was affirmed by one Shri Sudhir
Kumar, the then Collector of Patna, stating:
"The field survey work was completed in the
presence of Secretary and Chairman of applicant’s
society.
It is relevant to mention here that the
delivery of possession was given (u/s 16 of L.A.
Act) on 49.4525 Acres, the Hon’ble Apex Court
exempted 12.68 Acres in favour of appellants for
road and house sites and 5.00 acres in favour of
appellants cum Land Owners. The possession is to
be restored in favour of applicant Society on
(49.4545-17.68) i.e. 31.7725 Acres.
20. On the spot, the Hon. Secretary, Bihar
Finance Services Housing Cooperative Societies
Mr. Arun Kumar Sinha and Chairman, Mr. S.P.
Tiwari were asked to receive re-possession of
22.12 acres vacant land. They refused to take
possession and asked to hand over the entire land
in a single block at a time, after demolishing the
entire building existing on it."
8. A direction was issued on 7.04.2006 by this Court issuing notice to
the PRDA.
9. The total area of the lands acquired for the petitioner \026 society, as
noticed hereinbefore, was 59.94 acres of land. According to the petitioner,
although it was entitled to be given possession of about 31.7725 acres of
land, possession of, however, only 9.99 acres was delivered to it.
10. An affidavit was also filed by PRDA on 10.07.2006 assuring this
Court that it would carry out each and every direction of this Court.
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However, when the matter came up before this Court on 28.08.2006,
this Court recorded:
"Mr. Rakesh Dwivedi, learned senior counsel for
the State made statement at the bar that responsible
officer of the concerned department would be
writing a letter to the petitioner offering certain
lands to him which are lying vacant. Let it be so
done within two weeks from today.
It may be mentioned that in the letter, area
of land which will be offered, shall also be
enumerated."
However, the said assurance allegedly was also not acted upon.
On 2/3.02.2007, possession of an area of 5.91775 acres of land was
handed over to the petitioner \026 society.
A controversy, however, was raised that the petitioner \026 society was
only entitled to 18.8124 acres of land.
11. We may notice that keeping in view the controversy between the
parties, a survey was directed to be conducted by an order dated 30.08.2007
stating:
"Mr. Ashok Dubey, Executive Engineer,
Patna Municipal Corporation together with
Mr.Rajesh Kumar, ADLAO shall visit the lands
in question and, if necessary, appoint a
competent surveyor to find out the extent of the
lands in respect of which possession had not been
handed over to the Petitioner-Society together
with other requisite details.
For the aforementioned purpose, Mr.
Rakesh Dwivedi, learned senior counsel
appearing on behalf of the State of Bihar has
handed over a compilation of the documents,
inter alia, consisting of the Notification under
Section (4) of the Land Acquisition Act and
declaration under Section (6) thereof as also the
judgment passed by the Patna High Court from
time to time and also the judgment passed by this
Court so as to ascertain the area which is required
to be handed over in favour of the petitioner-
Society.
Mr.Srivastava, learned senior counsel
appearing on behalf of the petitioner-Society
states that Mr. S.P.Tewary, President, Bihar
Finance Housing Cooperative Society shall
render all cooperation to the aforementioned
officers.
Mr.Ashok Kumar Dubey and Mr. Rajesh
Kumar together with Mr.S.P.Tewary may visit
the lands in question within ten days from date.
After identification of the lands, the
aforementioned two officers shall also hear Mr.
Tewary, who may produce all the requisite
documents for the purpose of finding out as to
the exact extent of the lands which was required
to be handed over by the alleged contemnor in
favour of the petitioner-Society.
Patna Municipal Corporation, which is the
successor of the Patna Regional Development
Authority, shall initiate proceedings, if not
already initiated as against the persons who had
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made encroachment or who had not constructed
the building in terms of the Patna Development
Authority Act and/or the Rules framed
thereunder.
Mr.Ashok Kumar Dubey and Mr.Rajesh
Kumar shall file a report to this Court within six
weeks."
12. Pursuant to the said order, a survey was conducted wherein it was
recorded:
"9. After taking into consideration the areas
released by the Hon’ble Patna High Court in
CWJC No. 2755/1988 etc. etc. dated 20.06.2001
(as contained in paragraph 34) and this Hon’ble
Court in Civil Appeal No. 1357/2003 dated
18.08.2004, the petitioner Society is entitled to
possession of 18.26695 acres. The balance area of
7.22019 acres is required to be given to it."
It was further stated:
"12. Pursuant to the Survey and review of the
plots released by the Hon’ble Patna High Court
and this Hon’ble Court and appraisal of the plots
which were handed over to the petitioner society,
26 plots can be considered for carving out the
land which could be handed over the petitioner
society. These are plot nos. 108, 173, 185, 186,
187, 188, 189, 201, 204, 205, 206, 209, 216, 217,
221, 224, 226, 227, 228, 229, 231, 234, 237, 238,
240 and 246. Out of these plots, an area of
7.22019 acres can be carved out and handed over
to the petitioner society, in full compliance of the
directions of this Hon’ble Court."
13. From a perusal of the said survey report, it is evident that 25.4871
acres of land were to be handed over to the petitioner. Such lands were to be
handed over upon demolition of the structures of the plot numbers
mentioned in paragraph 12 thereof. Tidy nature of the development of the
area is also accepted.
14. Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of
the State of Bihar submitted that the aforementioned survey report would
solve the entire dispute and if the same is acted upon, no dis-satisfaction
would be caused to any of the parties.
15. Mr. A.K. Srivastava, learned senior counsel appearing on behalf of the
petitioner, however, would draw our attention to Sr. No. 4 of the Chart
contained in the report which reads as under:
Case
No.
Name of Party
Plot
No.
Area
Area
Date of
purchase
Remarks
*
*
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*
*
*
4.
CWJC
93/84
Pharmaceutical
Co. Op. House
Consl.
220
part
2.82
Acres
22K,4D
2.82.000
0.69374
1/5/78
&
2/8/78
Purchased
by
Society
22K &
4D by
members
directly"
16. The learned counsel contends that plot No. 220 belonging to the
Pharmaceutical Cooperative Housing Construction which was the writ
petitioner before the Patna High Court in Writ Petition no. 93 of 1984 was
the owner of 24 acres of land. However, by mistake, apart from the land to
which it was found entitled to, viz., 22 K, 4 D, it had wrongly been
mentioned that it was further entitled to an area of 2.82 acres, which is
evidently a mistake.
17. Mr. Nagendra Rai, learned senior counsel appearing on behalf of the
impleaded parties, on the other hand, would raise a contention that having
regard to the fact that the declaration issued under Section 6 of the Act was
set aside by the Patna High Court as far back as in the year 1990 and the
applicants having raised constructions over small areas, they would suffer
irreparable injuries if the judgment of this Court is directed to be
implemented. It was contended that the members of the petitioner \026 Society
are owners of houses and some of them have moved out of Patna and in
particular, Jharkhand after its creation.
18. The judgment and order of the Patna High Court setting aside the
declaration under Section 6 of the Act was set aside by this Court. It issued
certain directions. Such directions were issued not only in presence of the
State of Bihar but also in presence of those who had objected to the
acquisition proceedings and filed writ applications before the Patna High
Court. The claim made by each one of them had been taken into
consideration. If the applicants are purchasers of lands pendent lite which
was subject matter of different proceedings before the Patna High Court as
also this Court, they are also bound thereby.
It is difficult to accept the contention of the learned counsel that, in
view of the change in the situation, viz., creation of the State of Jharkhand,
some of the members ceased to be the members of the society itself.
Bifurcation of the State of Bihar has nothing to do with continuation of the
membership of the society which is an independent juristic person.
19. Lands have been acquired in terms of the proceedings. Validity of the
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said proceedings has been upheld by this Court. The amount of
compensation has been deposited. Awards have been made. The court can
at this stage neither go behind the awards nor various orders passed by this
Court.
20. PRDA is a statutory authority. It has been created by a statute. It was
responsible for planned development of the city. For the said purpose, it was
under a statutory obligation to grant sanction of plans for construction of
buildings. If somebody has made constructions without obtaining any
sanction, he must face the consequences therefor.
It is, having regard to the purport and object for which such Acts are
enacted, idle to contend that no action should be taken against them only
because they have constructed their houses long back. Such statutes also
subserve promotion and protection of ecology which is one of the foremost
needs of the society.
In Bombay Dyeing & Mfg. Co. Ltd. vs. Bombay Environmental
Action Group & Ors. (2006) 3 SCC 434, this Court observed:
"\005The development of the doctrine of sustainable
development indeed is a welcome feature but
while emphasizing the need of ecological impact, a
delicate balance between it and the necessity for
development must be struck. Whereas it is not
possible to ignore inter-generational interest, it is
also not possible to ignore the dire need which the
society urgently requires."
Almost a similar question came up for consideration before this Court
in M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Others [(1999) 6 SCC
464] wherein this Court upon considering the question from various angles
directed:
"82. We direct as under:
1 . Blocks 1, 2 and 4 of the underground shopping
complex shall be dismantled and demolished and
on these places the park shall be restored to its
original shape.
2 . In Block 3 partition walls and if necessary
columns in the upper basement shall be removed
and this upper basement shall be converted into a
parking lot. Flooring should be laid at the lower
basement level built to be used as a parking lot.
Ramp shall be constructed adjacent to Block 3 to
go to upper and lower basement levels for the
purpose of parking of vehicles. Further to make
Block 3 functional as a separate unit walls shall be
constructed between Block 2 and Block 3 and also
Block 3 and Block 4.
3 . Dismantling and demolishing of these
structures in Blocks 1, 2 and 4 and putting Block 3
into operation for parking shall be done by the
Mahapalika at its own cost. Necessary services like
sanitation, electricity etc. in Block 3 shall be
provided by the Mahapalika.
4 . The Mahapalika shall be responsible for
maintaining the park and Block 3 for parking
purposes in a proper and efficient manner.
5 . M.I. Builders Pvt. Ltd., the appellant, is
divested of any right, title or interest in the
structure built by it under or over the park. It shall
have no claim whatsoever against the Mahapalika
or against any other person or authority.
6 . Block 3 shall vest in the Mahapalika free from
all encumbrances. Licence of M.I. Builders to
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enter into the park and the structure built therein is
cancelled of which possession is restored to the
Mahapalika with immediate effect. No obstruction
or hindrance shall be caused to the Mahapalika by
anyone in discharge of its functions as directed by
this order.
7 . Restoration of the park and operation of Block
3 for parking purposes shall be completed by the
Mahapalika within a period of 12 months from
today and the report filed in the Registry of this
Court."
21. Parameters of the jurisdiction of this Court under the Contempt of
Courts Act, 1970 are well-settled. { See Maruti Udyog Limited v. Mahinder
C. Mehta and Ors. [2007 (11) SCALE 750] }
While dealing with such an application, the court is concerned
primarily with :
(i) whether the order passed by it has attained finality or not;
(ii) whether the same is complied with or not.
22. While exercising the said jurisdiction this court does not intend to
reopen the issues which could have been raised in the original proceeding
nor shall it embark upon other questions including the plea of equities which
could fall for consideration only in the original proceedings. The court is
not concerned with as to whether the original order was right or wrong. The
court must not take a different view or traverse beyond the same. It cannot
ordinarily give an additional direction or delete a direction issued. In short,
it will not do anything which would amount to exercise of its review
jurisdiction. [See Director of Education, Uttaranchal and others v. Ved
Prakash Joshi and others AIR 2005 SC 3200 and K.G. Derasari and Another
v. Union of India and Others (2001) 10 SCC 496].
23. This Court while exercising its jurisdiction under the Contempt of
Courts Act or Article 129 of the Constitution of India must strive to give
effect to the directions issued by this Court. When the claim of the parties
had been adjudicated upon and has attained finality, it is not open for any
party to go behind the said orders and seek to take away and/ or truncate the
effect thereof. [See T.R. Dhananjaya v. J. Vasudevan (1995) 5 SCC 619]
24. In Prithawi Nath Ram v. State of Jharkhand and Others (2004) 7 SCC
261], this Court held:
"5. While dealing with an application for
contempt, the court is really concerned with the
question whether the earlier decision which has
received its finality had been complied with or not.
It would not be permissible for a court to examine
the correctness of the earlier decision which had
not been assailed and to take a view different than
what was taken in the earlier decision.
It was furthermore observed:
"6. On the question of impossibility to carry out
the direction, the views expressed in T.R.
Dhananjaya v. J. Vasudevan need to be noted. It
was held that when the claim inter se had been
adjudicated and had attained finality, it is not open
to the respondent to go behind the orders and
truncate the effect thereof by hovering over the
rules to get around the result, to legitimise legal
alibi to circumvent the order passed by a court."
Moreover undertakings had been given by the respondents before this
Court from time to time. What they have done or intend to do is only the
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compliance thereof. The petitioner had to wait for a long time to get the
fruits of requisition made by it for acquisition of land. The lands were
acquired in 1983 on the basis of the requisition made by it in 1973.
We, therefore, are not in a position to accede to the contention of Mr.
Rai.
25. So far as submission of Mr. Srivastava that a clerical or typographical
error has crept in the judgment of the Patna High Court is concerned, we are
of the opinion that it is not for this court to direct any correction therein.
For the aforementioned purpose, an appropriate application may be
filed before the Patna High Court. The High Court alone would be entitled
to rectify the mistake committed by it, if any. Either the State of Bihar or
the applicants who are the beneficiaries of this order may file an appropriate
application therefor. If and when such an application is filed, the High
Court, we are sure, would pass an appropriate order in terms of the well
known principle actus curiae neminem gravabit.
In the event, the High Court thinks it fit and proper to rectify the
mistake, if any, indisputably the said area shall also be allotted to the
petitioner.
26. The functions of the PRDA are now being carried out by Patna
Municipal Corporation. The statutory authority, thus, keeping in view the
purport and object for which it has been created, in our opinion, must take
appropriate action in accordance with law. As indicated hereinbefore,
PRDA, the predecessor of Patna Municipal Corporation has given assurance
before this Court. We hope it shall implement the same as expeditiously as
possible.
27. The petition is disposed of accordingly with the aforementioned
directions and observations.