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Judgment
Dhrub Narayan Upadhyay, J.—I.A. No. 8978 of 2013 has been filed by the respondents to initiate proceedings under Sections 11 and 12 of the Contempt of Courts Act against General Manager, Kathara, CCL for wilfully and deliberately violating the order dated 12.11.2013, passed by this Court in the appeal.
It is contended that on 28.10.2013 report from Nazir, Civil Court, Bermo at Tenughat, Bokaro was called for in respect of Delivery of Possession in connection with Execution Case No. 13 of 2008 and at the same time it was also ordered:
"It is made clear that status quo as is existing today shall be maintained till submission of the report" The report so submitted indicate that process for delivery of possession in view of the decree passed, has been started and the decree holder has been handed over possession of certain plots as disclosed in the report. After receipt of report from the Nazir, Civil Court, Bermo at Tenughat, Bokaro, the order dated 12.11.2013 has been passed directing the parties to maintain status quo as it was on 28.10.2013.
It was revealed from the report of Nazir, Civil Court, Bermo at Tenughat, Bokaro that till 28.10.2013 delivery of possession with regard to 30 Plots have been given to decree holders and details of plots delivered found mentioned in the report. It was ordered.
"Rest plots mentioned in the writ of delivery of possession shall not be given to the decree holder till further order and the status quo shall be maintained as it was on 28.10.2013 and the judgment debtor shall not disturb the possession of decree holder with regard to the plots already delivered to them." The respondent has submitted that order dated 28.10.2013 passed by this Court was brought to the notice of the Officer Incharge and other administrative officers of the Sub Division, but the appellant did not honour the order and wilfully violated the same. Till 24.10.2013, the delivery of possession with regard to 30 Plots have been given but the respondents in utter violation of order dated 12.11.2013, have been forcibly using the land with the help of armed security guard. In support of his contention the respondents have also annexed photographs as Annexure-R/-V Series. It was submitted that the respondents and their family members are not being allowed to go to the plots which have already been delivered to them. The armed guards of the CCL used to openly say that they would be shot if they dare to come to the land in question.
The counsel appearing for the respondents has brought to the notice of this Court that the appellant filed I.A. No. 8810 of 2013 on 10.12.2013 under Order XXXIX Rules 1 and 2 read, Order XLI Rule 5 read with Section 151 of the Code of Civil Procedure for grant of injunction and that goes to show that the appellants are using the plots already delivered to the respondents and now they want injunction to legalise the illegal act committed by them.
The appellants being a Central Government Undertaking Company, are flouting the order of this Hon''ble Court and the poor persons like the respondents are being harassed and, therefore, appropriate action to maintain dignity of the Order of this Court is liable to be taken and proceeding under Contempt of Courts Act be initiated against General Manager, Kathara, CCL.
In reply to Interlocutory Application the General Manager, Kathara, CCL has filed show cause on 11.09.2014.
First of all it was pointed out that I.A. No. 8978 of 2013 was filed on 16.12.2013 but it was pressed after the argument on behalf of the appellant was concluded. The respondents instead of extending argument on the appeal have started taking adjournment and to scuttle the hearing of the appeal have started referring I.A. No. 8978 of 2013 filed on 16.12.2013. As a matter of fact the Nazir, Civil Court, Bermo at Tenughat is liable to be put under enquiry because he has submitted a wrong report. The Nazir Incharge has not complied with the provisions contained under Order XXI Rule 35 of C.P.C. The delivery of plots alleged to have been given have actually not given to the respondents and it was not within the knowledge of the appellants. No authority of CCL was informed by the Nazir Incharge, Civil Court, Bermo at Tenughat and the report submitted by him before this Court does not bear the signature of any of the authority/officer of CCL and that itself goes to prove that delivery of possession as indicated in report is nothing but a table work which has been done in connivance with the respondents. As a matter of fact, when the respondents had started obstructing transportation of coal, the appellants filed petition under Order XXXIX Rule 1 and 2 C.P.C. read with Order XLI Rule 5 and Section 151 C.P.C. When the obstruction made by the respondents came to an end the appellant did not move those Interlocutory Applications for appropriate order. The learned counsel appearing for the appellant had continued extending arguments before this Court and also concluded the same. When the respondents were supposed to extend their arguments on appeal, they have started taking adjournments after adjournments on one ground or the other and lastly submitted to dispose of I.A. No. 8978 of 2013 filed by them with a prayer to initiate contempt of court proceeding.
After granting hearing to the parties this Court has been pleased to call for further report vide Order dated 02.12.2014 from the executing court whether delivery of possession as indicated in the report of Nazir Incharge, Civil Court, Bermo at Tenughat, Bokaro is correct or not and for that executing Court who is in seisin of Execution Case No. 13 of 2007 has been given authority to appoint a Survey Knowing Pleader Commissioner, if possible, with consent of both the parties. The required report with the report of the Pleader Commissioner has been received vide Memo No. 11/15, dated 23.01.2015.
After considering report of survey knowing pleader commissioner, the learned Civil Judge, Senior Division -- 1st, Bermo at Tenughat has reported that the respondents/plaintiffs have been found in possession of few plots which are paddy fields situated near Nala side. The nature of land has been described by the survey knowing pleader commissioner in his report and that indicates railway track, underground bunker, railway siding for transportation of coal, roads, shed and quarters being used by the CCL.
The report submitted by the Nazir Incharge, Civil Court, Bermo at Tenughat is completely silent as to how and in what manner possession of roads, railway tracks, railway siding, platform, sheds, underground bunkers and quarters lying on those plots have been given to the respondents/decree holders.
It was further contended that by filing supplementary affidavit, the respondents have now pointed out fingers towards the integrity of survey knowing pleader commissioner though he was appointed with consent of both the parties. The conduct of the respondents goes to show that they want to linger the matter by one means or the other.
It was further pointed out that Nazir Incharge, Civil Court, Bermo at Tenughat, after alleged delivery of 30 plots and after passing of the order by this Court, has not submitted the report before the executing court and it was kept with him for about one year.
The appellant has further stated that the said land was duly acquired in the year 1922 by Bombay -- Baroda Central Indian Railway and the Madras and Southern Maratha Railway vide declaration No. 10126, dated 12.12.1922 in proceeding No. 146/1 and 147/2 of 1922 - 23 and 1/3, 2/4, 3/5, 4/6, 5/7 and 6/8 of 1923 - 24 and it was made over to Babu Moti Lal Roy, Special Land Acquisition Deputy Collector on 31.07.1923 and on behalf of the Deputy Collector of Hazaribagh District of the Manager, Jarandih Colliery. Since long CCL has been using the land for extracting coal for its transportation to different power plants, steel plants of the Government as well as private companies.
The appellant has filed objection before the execution court against report of the Nazir and by making reference to objection dated 23.12.2014 and objection dated 06.01.2015 it is pointed out that in paragraphs -- 3 and 4 of objection dated 06.01.2015 the report of the Nazir has been dealt with and the appellant has not accepted that actual physical possession of those 30 plots was given to the respondents/decree holders.
The learned counsel appearing for the appellant has referred so many Judgements and submitted that while exercising contempt jurisdiction, the Court should move forward with abandon precaution and punish the contemnor only if the alleged contumacious conduct is not explainable. In this context judgment rendered in the case of Debabrata Bandopadhyay and Others Vs. The State of West Bengal and Another, has been referred.
He has further relied on the Judgements rendered in the cases of Indian Airport Employees Union Vs. Ranjan Chatterjee and another, : Bihar State Govt. Section Scl. Teachers Assn. Vs. Ashok Kumar Sinha and Others, : State of M.P. Vs. Narmada Bachao Andolan [ (2011) 7 SCC (Para-141 and 147)] : A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, : Taylor and another Vs. Ribby Hall Leisure Ltd. And another [(1998) 1 WLR 800 (para-142, 145, 146 and 147)] : Vareed Jacob Vs. Sosamma Geevarghese and Others, .
I have gone through the case record of appeal and reply thereof filed from both sides. When hearing of this appeal was taken up, this fact came in light that writ of delivery of possession in Execution Case No. 13/2007 has already been issued and process to deliver possession of land in question has been initiated by the Nazir, Civil Court, Bermo at Tenughat. After the above fact came to the knowledge of this Court, a report was called for vide order dated 28.10.2013 and in compliance to that the Nazir Incharge, Civil Court, Bermo at Tenughat has submitted a report disclosing therein details of the plots of which delivery of possession have been given to the respondents/decree holder.
After receipt of said report, order dated 12.11.2013 was passed by which the delivery of possession for rest plots mentioned in the writ of delivery of possession has been directed to be stayed till further order and status quo shall be maintained as it was on 28.10.2013 and the judgment Debtor shall not disturb the possession of decree holder with regard to the plots already delivered to them. The respondents has come up by filing I.A. No. 8978 of 2013 with a prayer to initiate proceedings under Sections 11 and 12 of the Contempt of Courts Act against General Manager, Kathara, CCL for wilfully and deliberately violating the order dated 12.11.2013, passed by this Court in the appeal.
In course of the argument advanced on behalf of the appellant, the respondents did not move said I.A. No. 8978 of 2013 and therefore no order was passed. After the appellant has concluded his arguments, the respondents/decree holder has raised the issue of violation of order dated 12.11.2013 whereafter a detailed order was passed on 02.12.2014 by which the report from the executing court in seisin of Execution Case No. 13/2007 was called for. The report of Civil Judge, Senior Division, Bermo at Tenughat accompanied by the report of survey knowing pleader commissioner indicates that report of Nazir Incharge does not appear to be correct. It is indicated in the said report that railway line, railway siding, railway platform, roads, some quarters, railway siding offices are still in use of appellant/Judgement Debtor.
The nature of land under the plot alleged to have been delivered by the respondents have been described by the survey knowing pleader commissioner in his report. It is clear that transportation of coal, roads, underground bunker, railway platforms and railway sidings and some quarters are lying on those plots and the report submitted by Nazir Incharge is silent as to how possession of such plots having such nature have been given to the respondents/decree holder. It is not indicated in the report of Nazir Incharge as to whether any hindrance was caused in delivering those plots or not and, therefore, the report so submitted by Nazir Incharge is not free from cloud of doubt.
It is also apparent that presence of any of the officers of the CCL has not been indicated in the report. No officer or staff of CCL has signed the delivery of possession report and the Nazir has not written that so and so were present but they refused to sign. Needless to mention CCL is the Public Sector Undertaking of the Central government and it runs colliery at different parts of the State and also in some part of West Bengal and Orissa.
The transportation of coal to different power plant, steel plant etc. is also essential and that cannot be interrupted without valid reason and order of the appropriate court. It is true that a decree with regard to disputed plots has been passed by the trial court in favour of the respondents/decree holders but till execution of decree is not done, the decree holder cannot restrain the judgment Debtor from enjoying and utilising those lands and structures and that too when appeal against impugned judgment is sub judice before this Court.
Since the report submitted by Nazir Incharge does not appear to be complied with in accordance with provisions of Order XXI Rule 35, I feel inclined to give directions to both the parties that possession of land which relates to the paddy field, Tanr and abandon land, delivered to the decree holder in view of the D.P. so issued, shall be enjoyed by them till pendency of this appeal, but so far railway tracks, roads, railway siding, railway platform, structures at the railway siding, garage, staff quarters, offices running under shed lying on the disputed plots, etc. shall be used and utilised by the appellants for the purpose of excavation and transportation of coal till pendency of this appeal.
The judgment Debtor shall not disturb possession of decree holder on the land indicated above and likewise the decree holder shall not obstruct excavation and transportation of coal in any manner till pendency of this appeal.
I do not find that the General Manager, Kathara, CCL has wilfully and deliberately violated the order dated 12.11.2013, passed by this Court in the appeal and as such he is not liable to be prosecuted under Sections 11 and 12 of the Contempt of Courts Act.
It is made clear that the respondents shall commence their arguments from next date onwards.
I.A. No. 8978 of 2013 and I.A. No. 8810 of 2013 stands disposed of.