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CASE NO.: Appeal (civil)  687 of 2008

PETITIONER: SHANTI DEVI

RESPONDENT: STATE OF SIKKIM & ANR.

DATE OF JUDGMENT: 25/01/2008

BENCH: ASHOK BHAN & ALTAMAS KABIR

JUDGMENT: J U D G M E N T (Arising out of SLP(C) No. 10774 of 2006)

ALTAMAS KABIR, J.

1.      Leave granted.

2.      This is one of those rare cases in which the decision impugned  in the appeal not only merits intervention but also calls for certain  observations to be made in respect of the order itself.

3.      The appellant and her husband, Ram Nath Prasad, were running  a grocery-cum-stationery shop in a rented premises owned by the  respondent No.2 herein, at Ranipool in East Sikkim.  The Trade  Licence for running the aforesaid business was in the name of M/s  Ram Nath Prasad.

4.      Ram Nath Prasad died on 17.3.2004 leaving his widow, Shanti  Devi, the appellant herein, to run the  business from the said rented  premises.  The appellant continued  to run the business in the name of  M/s Shanti Enterprises  and on 1.7.2004 she applied  to the concerned  authorities for issuance of a fresh Trade Licence in the name of her  firm M/s Shanti Enterprises. For the sake of abundant caution, on  9.7.2004 she also filed an application with an alternative prayer for  changing the subsisting Trade Licence from the name of M/s Ram  Nath Prasad to M/s Shanti Enterprises.

5.      It may be mentioned that prior to her said application the  respondent No.2-landlord had on 19.5.2004 written to the respondent  No.1 indicating that Ram Nath Prasad  had expired  and that the  existing  Trade Licence  for the aforesaid business  should not be  renewed  and no fresh Trade Licence should be issued in the name of  the sons of Ram Nath Prasad without a \021No Objection Certificate\022  from him, in his capacity as the owner of the said premises.

6.      On 23.8.2004, the concerned authorities informed the appellant  that the Trade Licence issued in the name of M/s Ram Nath Prasad  was to be treated as cancelled  under Rule 12(m) of the Sikkim Trade  Licence and Misc. Provisions  Rules, 1985, with immediate effect.   The said direction was given despite the fact that the appellant\022s  application for transferring the Trade Licence from the name of M/s  Ram Nath Prasad to M/s Shanti Enterprises, was pending decision  along with the appellant\022s  application for issuance of a fresh licence  in the name of  M/s Shanti Enterprises.

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7.      Aggrieved by the said order dated 23.8.2004 cancelling the  Trade Licence issued in the name of M/s Ram Nath Prasad,  the  appellant filed a writ petition, being Writ Petition (C) No.32 of 2004,  in the Sikkim High Court    on the ground that the impugned order  was illegal, having been passed in violation of Articles 21, 14, 19 and  300 (A) of the Constitution of India.  Besides praying for the quashing  of the said order dated 23.8.2004 the appellant  also prayed for certain  other reliefs,  including a declaration that the provisions of Rule 12(m)  of the Sikkim Trade Licence and Misc. Provisions Rules, 1985, were  arbitrary and in violation of Articles 14 and 21 of the Constitution and  were liable to be struck down.

8.      The said writ petition was disposed of at the very initial stage  on 15.9.2004 with liberty to the appellant or any of her representatives  to meet the Joint Secretary, Licence Section, Urban Development and  Housing Department of the State Government, for guidance in the  matter of  compliance with whatever requirements that were required  to be complied with. The concerned authority was directed to dispose  of the representation of the appellant within one month from the date  of intimation of the order passed by the High Court.

9.      Pursuant to the above observations made by the High Court, the  appellant applied to the concerned authority on 1.7.2004 and by its  letter dated 17.9.2004 the said authority directed the appellant to  submit necessary  documents for grant of a separate Trade Licence.   One of the documents which was required  to be submitted  was a \021No  Objection Certificate\022 from the landlord/respondent No.2. Since,  according to the appellant the respondent No.2 was bent upon evicting  her from the said premises, she informed the respondent-authority,  that the respondent No.2 was not willing to provide the appellant with  such \021No Objection Certificate\022 and accordingly prayed that she be  exempted from submitting the same. Despite the fact that the  appellant had complied with all the other requirements and had prayed  for exemption from submitting the \021No Objection Certificate\022, the  respondent authority by its letter dated 14.10.2004 informed the  appellant that her request for grant of a Trade Licence could not be  considered in the absence of a \021No Objection Certificate\022 from the  house owner.  Instead, she was directed to close down her business  with effect from 15.10.2004.

10.     Since it was  impossible to obtain a \021No Objection Certificate\022  from the respondent No.2/landlord who was bent upon evicting her  from the premises in question, the appellant filed a fresh writ petition,   being  Writ Petition No.24/2006, before the Sikkim High Court, inter  alia, renewing her prayer for transfer of the Trade Licence issued in  favour of M/s Ram Nath Prasad  to the appellant and also for striking  down the requirements of obtaining a \021No Objection Certificate\022 from  the house-owner together with the provisions of Rule 12(m) of the  Sikkim Trade Licence and Misc. Provisions  Rules, 1985, as being  arbitrary and illegal.

11.     It is the decision in the said writ petition which has given rise to  this appeal and calls not only for intervention  by this Court   but also  for certain observations to be made regarding the manner in which the  powers of the High Court under Article 226 of the Constitution have  been misapplied.  

12.     The appellant, who had filed the writ petition, inter alia, for a  direction to the concerned authorities either to transfer the Trade  Licence in the name of M/s Ram Nath Prasad  to M/s Shanti  Enterprises  or in the alternative  for issuance of a fresh Trade Licence  in her favour was not only made to suffer an order of dismissal of her  writ petition with costs assessed at Rupees one lakh, but was also  handed   a mandatory order of eviction directing her to vacate the  premises in question within a week from the date of the order.

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13.     We cannot help but observe that not only was the said order  passed without jurisdiction, but the same was also arbitrary and  injudicious to say the least.  If the learned Judges were of the view  that the writ petitioner was not entitled to any of the reliefs  prayed for  in the writ petition they should have simply dismissed the same with  reasonable costs, if  at all thought necessary.  We are unable to fathom  the thought - process of the learned Judges  which caused them to  impose a cost of Rs. One lakh while dismissing the writ petition. No  special circumstances have been indicated by the learned Judges in  their impugned order to indicate why such a heavy cost was required  to be imposed on the writ petitioner.

14.     What is even more surprising and of some concern is the  alacrity and despatch with which orders were passed on the contempt  petition filed by the respondent No.2 on the very next day after the  expiry of the stipulated period indicated in the mandatory directions  given by the learned Judges  directing the appellant to vacate the  premises in question within one week from the date of the order.  The  facts, as revealed in I.A.No.1 of 2006, filed by the appellant in the  Special Leave Petition, reveals a sordid tale of how the judicial  process was used to perpetrate an illegality which had its origin in the  order of the learned Judges disposing of the writ petition filed by the  appellant. 15.     It may be noted that the order disposing of the writ petition  filed by the appellant was passed on 26.6.2006 and the period of one  week given by the learned Judges to the appellant to vacate the  tenanted premises lapsed on 3.7.2006.  The contempt petition was  filed by the respondent No.2 on 4.7.2006 and was immediately taken  up for hearing on the same day on which it was filed and the appellant  was directed to appear before the Court on the very next day to reply  to the allegations made by the respondent No.2 in the contempt  petition.  In addition  to the above direction to the appellant, a further  direction was given to the Officer in-Charge of Ranipool Police  Station, to produce the appellant before the Court on 5.7.2006.  The  Registry was also directed to furnish a copy of the order along with  the contempt petition to the Officer in-Charge, Ranipool Police  Station, to enable him to hand over the same to the appellant with  liberty to her to file her reply to the  contempt application on 5.7.2006  itself.  It will, therefore, be evident from the above that while the  appellant was given time till 3.7.2006 to vacate the tenanted premises,  on the next day orders were passed for the appellant to appear before  the Court and also to file her reply to the allegations made in the  contempt petition. The dates speak of the haste with which the orders  were passed in the contempt petition  which had the effect of ensuring  that the respondent No.2 obtained possession of the shop-room before  the appellant could take any steps before the higher forum against the  said orders. 16.     To make matters even worse, on 5.7.2006 itself the learned  Judges, throwing all restraint to the winds, passed an order which  merits reproduction and is reproduced hereinbelow: \023Despite directions and orders of this Court in terms  of the order dated 04.07.2006, it appears to us that  Smt. Shanti Devi is avoiding to receive the notice  served upon her by the Registry of this Court  and   rather absconding  herself thus defying not only the  order dated 04.07.2006 passed  in this Contempt  Case (C) No.03 of 2006 but also the Order dated  26.06.2006 passed in the Writ Petition (C) No.24 of  2006.

None appears on behalf of Smt. Shanti Devi. On  perusal of  the notice it reveals that  notice was  received by one  Kameshwar Prasad, son of Smt.  Shanti Devi who is living with the said Smt. Shanti

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Devi in the same house.  At this stage, we are of the  view that it is a clear case of Contempt of Court as  Smt. Shanti Devi willfully defied the related Order  and Judgment of this Court passed on 26.06.2006 in  Writ Petition (C) No.24 of 2006.   It may be  mentioned that she are defined the Order dated   04.07.2006 passed by this Court in Contempt Case  (C) No.03 of 2006.

After application of our mind in this matter and  strictly interpreting the Law of Contempt, we opine  that Smt. Shanti Devi obstructed and interfered with  the due course of judicial proceedings of this Court.  In view of the above position, this Court at this  stage pass the following orders and directions:

Non-Bailable Warrant of Arrest be  issued against  Smt. Shanti Devi. The Chief Judicial Magistrate  (East  & North) shall comply with this direction  immediately and Smt. Shanti Devi shall be  produced before this Court on 07.07.2006 at 10.30  AM. It is also made clear that the Police  Department shall make their best endeavor to  comply and execute the order of this Court to meet  the ends of Justice for which a copy of this order, be  sent to the Director General of Police as well as to  the Superintendent of Police, East District and O.C.  concerned.  The Registry is directed to take  immediate action in this matter.

It is also further made clear that if the petitioner is  outside the State, the police authority shall contact  their counterpart  of any other State or States for  production of Smt. Shanti Devi before this Court on  the date and time mentioned above.

In view of the existing facts and circumstances of  the case, the  District Collector/District Magistrate,  East District is hereby appointed as the Receiver of  the articles now lying at the premises of the  applicant/petitioner Shri Subhash Kumar Pradan of  Ranipool and, the District Collector/Magistrate,  East is authorized to break-open the lock(s), if any  found in the said premises and to dispose of all the  articles by public auction and the sale proceeds of it  shall be deposited in the Registry of this Court or he  is at liberty to hand over the same to Smt. Shanti  Devo or her authorized agent or agents and hand  over the possession of the said premises to the  owner concerned (Shri Subash Kumar Pradhan)  with immediate effect for which the Police  Department shall cooperate and shall make their  best endeavor to execute the Order of this Court.  The  District Collector/Magistrate, East is directed  to dispose of all those articles within 3 (three) days  and submit a report to the Registry of this Court.

The District Collector/Magistrate, East is to prepare  an inventory of the articles in the presence of two   local residents  and put the articles  on public  auction as the said Smt. Shanti Devi claims that  some goods are perishable and some are not  perishable in the  related application submitted by  her in the connected main Writ Petition. At the very  outset this Court took the assistance of the learned

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Advocate General who submitted that the conduct  of Smt. Shanti Devi virtually amounts to insult to  the Court not only defiance of the related Court\022s  orders.

The matter be listed on 07.07.2006 for necessary  orders.

Let a copy of this Order be also sent to all  concerned.

Sd/- (N.S.Singh) Acting Chief Justice

Sd/- (A.P. Subba) Judge\024

17.     Losing sight of the fact that the notice on the appellant had been  issued on a contempt application and was required to be personally  served on the alleged contemnor, the learned Judges before passing  the draconian order did not even verify whether the notice of the  contempt proceedings had been served personally on the contemnor   and that despite such service the alleged contemnor had failed to act in  terms of the notice.  As  will be apparent from the order of 5.7.2006  the learned Judges recorded the fact that no one had appeared on  behalf of the appellant and that on perusal of the notice it was seen  that the same had been received by the son of the appellant. Further  more, without waiting for any response from the appellant the learned  Judges came to a finding that it was a clear case of contempt of court  as the appellant had willfully defied the order and judgment of the  High Court passed on 26.06.2006 in the appellant\022s writ petition.   What follows thereafter is nothing short of authoritarianism and  complete disregard of the principles of fair play in judicial  proceedings.  A non-bailable warrant of arrest was issued against the  appellant on 5.7.2006 with a direction on the Chief Judicial Magistrate  (East and North) to ensure production of the appellant before the  Court on 07.07.2006 at 10.30 a.m.  Directions  were also given to the  Police Department to execute the order of the Court and a copy  thereof was sent to the Director General of Police as well as to the  Superintendent of Police, East District, together with the Officer in- Charge concerned.  The District Collector/ District Magistrate (East  District), was appointed as Receiver of the articles lying in the  appellant\022s tenanted premises  with authority not only to the District  Magistrate  but also to the respondent No.2 to break-open the lock(s),  if any found in the said premises and to dispose of all the articles by  public auction. The District Magistrate was also directed, after   breaking open the locks to hand over the possession of the premises in  question to the respondent No.2.

18.     The possession of the appellant\022s tenanted premises was made  over to the respondent No.2 pursuant to the aforesaid orders in the  manner aforesaid.

19.     At this juncture it may be noted that the appellant in her  application for stay of operation of the orders passed by the Sikkim  High Court on 05.07.2006 in the Contempt proceedings, has quite  lucidly  explained   as to why the contempt notice could not be served  on her on 04.07.2006 as a result  whereof she could not present herself  before the High Court on 5.7.2006 as directed. The appellant has  explained that having regard to the short time frame within which she  had been directed to vacate the tenanted premises, she had to come to  Delhi immediately in order to file the Special Leave Petition giving

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rise to this appeal.  She has categorically indicated that on 04.07.2006  she was in Delhi and the question of avoidance of the contempt notice  or any deliberate intention on her part to disobey the same did not  arise.  In her said application the appellant has also mentioned the fact  that her son had received the contempt notice and had thereafter  telephoned her in Delhi informing her of the same.

20.     Having regard to the aforesaid facts, the order passed on the  contempt application directing possession to be taken by the Police  authorities and to make over the same to the respondent No.2, appears  to be in gross abuse of the due process of law which cannot at all be  sustained.

21.     What is of grave concern is the fact that the learned Judges  completely disregarded the civil law relating to eviction  and  directed  the writ petitioner on her writ petition for different reliefs to hand over  possession of the tenanted premises to the respondent No.2.  The case  in hand is an example of how the writ courts have in recent times  either  forgotten or ignored the line  between the reliefs which could  be given  by the Civil Courts and the Constitutional Courts.  The  learned Judges appear to have lost sight of the fact that they were  deciding a writ petition for reliefs prayed for by the writ petitioner and  not a civil suit for eviction against her and that in such a proceeding  no mandatory order of eviction could be passed and certainly not   against the writ petitioner herself.  In fact, after imposing the cost of  Rupees one lakh while dismissing the writ petition, the learned Judges  added insult to injury by directing the writ petitioner to also vacate the  premises, where she was running her business for about thirty years,  within a week from the date of the order.

22.     While deciding the writ petition, the learned Judges appear to  have shifted their focus from the reliefs prayed for in the writ petition  to what relief could be given to the respondents therein. This appears  to be the reason for the learned Judges to have passed a mandatory  order of eviction on the appellant\022s writ petition, wherein she had,  inter alia, prayed for a direction on the authorities to issue a fresh  Trade Licence to her on her husband\022s death.  The learned Judges  referred to the order passed in the earlier writ petition filed by the  appellant for similar reliefs which had been disposed of with a  direction to the appellant to approach the Joint Secretary of the  concerned department for guidance as to how the requirements for the  grant of a Trade Licence could be complied with. The learned Judges  do not appear to have considered the fact that the appellant had  complied with all the requirements except the requirement of  obtaining a \023No Objection Certificate \023 from the respondent No. 2  who was bent upon evicting her from the tenanted premises from  where she was running her business.   The learned Judges generally  observed that the appellant had totally failed to comply with the  directions and the terms and conditions contained in the State\022s letter  dated 17.9.2004.   The order imposing cost of Rupees One Lakh and  directing the appellant to vacate her tenanted premises and to deliver  possession thereof to the respondent No. 2 follows such observation.   The constitutional issues raised by the appellant regarding the  provisions of the Sikkim Trade Licence and Miscellaneous Provisions  Rules, 1985, were neither considered nor addressed by the learned  Judges while disposing of the writ petition.  The learned Judges have,  in fact, observed that it was not necessary for the Court to go into the  matter in depth as the writ petition deserved to be dismissed with  heavy costs.                23.     In the aforesaid circumstances, we have no hesitation in setting  aside the order of the High Court dated 26.6.2006 and to direct the  High Court to reconsider the matter afresh. Having regard to the  arbitrary and unlawful manner in which possession of the premises in  question was made over to the respondent No.2 the said respondent is  directed to restore possession of the premises in question to the

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appellant within a fortnight from date. The cost imposed by the  impugned judgment  and the contempt proceedings are also quashed.

24.     This  order will not preclude either of the parties from pursuing  their reliefs, if any, further before the appropriate forum .

25.     The appeal is accordingly allowed with cost of Rs.25,000/- to  the appellant.