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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.