Chandrika Prasad Nishad vs State of U.P.and Others

Devi Prasad Singh, J.—A controversy arisen before this Court relates to a revisional order passed by the State of U.P. Mining lease was granted to private respondent by an order dated 8.2.2005. Lease was granted to one of the respondents on the recommendation of a former MLA and President of the political party. The other lease was granted to associate of alleged mining mafia. Against the grant of mining lease statutory revision was preferred before the State of U.P. which was dismissed by order dated 15.7.2005. The revisional order passed by the State Government in pursuance to power conferred by U.P. Minor Mineral Rules was a subject matter of dispute before this Bench.

During the course of hearing on 14.11.2005 question was arisen as to who may be termed as Mafia. It was argued before this Bench that Mafia corelated with the organized crime and various departments of the State and Central Government are suffering from the undue pressure exerted by mafia to avail Government contract and affecting public life at large.

Relevant portion from the order dated 14.11.2005 is reproduced as under:

�The decision taken by the State Government by issuing a Government Order to check the affects or involvement of Mafias in Government contracts is a welcome event. However, since the Government is silent and it does not define the word �Mafia� and �Modus Operandi� or the manner of functioning of the �Mafia�, it shall be appropriate that Director General of Police may convene a meeting and discuss the matter with other wings including the Addl. Director General of Intelligence to finde out which are the government departments, local bodies or corporations seems to be influenced by the Mafias activities.

Petitioner''s counsel argued that Mafia are organized groups of anti social elements affecting the elections by booth capturing grant of government contracts, lease or permits in various departments of the State and Central Government including the Excise Department, Forest Department, Lok Nirman Vibhag, Irrigation Department, Railways, Defence, Food Corporation of State, Food Corporation of India, Rural Engineering Services, National High Ways and other limbs of the State and Central Governments in a monopolized and planned manner. The genuine and law abiding contractors are being prohibited to obtain government contracts.�

Let the Director General of Police consider all these aspects of the matter by convening a meeting of the concerned officers or Addl. Director Generals to find out the suspected limbs/departments of the State Government and Central Government which are influenced by the Mafias activities for financial dominance and monopolization affecting the society at large. While filing the affidavit through an officer of the rank of Addl. Director General of Police, it shall also be indicated that as to in what manner, Mafias are affecting the government contracts as well as law and order problem in the State of U.P. and some particulars/datas may also be provided.�

Since no report was submitted to this Court within time relating to functioning of mafia, again on 28.11.2005 State was further granted time to submit a report.

Relevant portion from the order dated 28.11.2005 is reproduced as under:

�By the order dated 14.11.2005, the Director General of Police was directed to submit a report relating to the functioning of the Mafias.

Sri Ashok Verma, learned Addl. Chief Standing Counsel submits that on account of Assembly Session and paucity of time, the Director General of Police could not prepare a report.

On the other hand, respondent''s counsel submits that on account of interim order, he is suffering from financial loss.

Sri Ashok Verma, learned Addl. Chief Standing Counsel further submits that the information required by this Court falls within the domain of the Director General of Police (Law & Order). Accordingly, the Director General of Police (Law & Order) is directed to submit a report keeping in view the letter and spirit of the order dated 14.11.2005 passed by this Court. While doing so, he shall also obtain the report from the Director General of Police (Intelligence) who is supposed to possess the material information relating to functioning of Mafias in the State of U.P. It shall be open to the Director General of Police (Intelligence) to constitute a committee under the chairmanship of one of the Addl. Director of Police or under his own supervision.

Let a report be submitted by the next date of listing to avoid the further delay in the matter.

List on 15th of December, 2005.�

Thereafter, Additional Director General of Police, Crime had filed an affidavit and brought on record the circular dated 11.1.1993 issued by the then Director General of Police, Shri Prakash Singh to curb the activities of mafia in State of U.P. The affidavit filed by the Additional Director General of Police (Crime) indicates that influence of mafia is not affecting only the mining department but also the other departments of the Government. It was also brought on record that police department of the State does not possess any data relating to the organized crime hence, Principal Secretary of State Government Shri G.B. Pattanaik was summoned by this Court so that in his presence appropriate order may be passed.

In compliance of order passed by this Bench Shri G.B. Pattanaik, Principal Secretary, Programme and Implementation, appeared on 16.12.2005. After hearing learned counsel for the parties as well as learned standing counsel it was found by this Court that though a circular dated 11.1.1993 was issued by the then Director General of Police Shri Prakash Singh to curb the activities of mafia/organized crime in the State of U.P. but no effective step was taken by the State Government to implement the circular. Mere issuance of circular was found to be not sufficient to check the organized crime in the State of U.P., hence by order dated 16.12.2005 Shri G.B. Pattanaik, Principal Secretary, Government of U.P. was appointed as one man committee to submit a report on organized crime/activities of mafia in the State of U.P. and State and Central authorities were directed to provide necessary assistance to one man committee. Again time was granted by an order dated 17.2.2006 to the one man committee to submit a report. On 5.4.2006 learned Advocate General of the State of U.P. appeared and opposed the one man committee of Shri G.B. Pattanaik with a statement that matter should be referred to the Law Commission of the State of U.P. The submission of learned Advocate General was turned down by this Court and one man committee headed by Shri G.B. Pattanaik was directed to submit his report by order dated 5.4.2006.

It is settled law that even in private litigation this Court has got ample power to appoint commission and secure public interest after holding necessary enquiries. It is also settled law that in case during the course of trial something brought in the notice of Court affecting fundamental right of the citizens this Court may issue appropriate direction to secure the public interest. It is not necessary that only in a case filed by a person under the garb of �public interest litigation�, this Court may exercise extraordinary jurisdiction to secure the public interest. This principle of law is evident from Apex Court judgment reported in 2003 (7) SCC 546, Guruvayoor Devaswom Managing Committee and another v. C.K. Rajan and Others. Relevant portion from the judgment of Guruvayoor Devasworn Managing Committee (supra) is reproduced as under:

�50. The principles evolved by this Court in this behalf may be suitably summarized as under:

(i) The Court in exercise of powers under Article 32 and Article 226 of the Constitution of India can entertain a petition filed by any interested person in the welfare of the people who is in a disadvantaged position and, thus, not in a position to knock the doors of the Court.

The Court is constitutionally bound to protect the fundamental rights of such disadvantaged people is as to direct the State to fulfill its constitutional promises. (See S.P. Gupta v. Union of India, People''s Union for Democratic Rights v. Union of India, Gandhua Mukti Morcha v. Union of India and Janata Dal v. H.S. Chowdhary)

(ii) Issues of public importance, enforcement of fundamental rights of a large number of the public vis�vis. The constitutional duties and functions of the State, if raised, the Court treats a letter or a telegram as a public interest litigation upon relaxing procedural laws as also the law relating to pleadings. (See Charles Sobraj v. Supdt., Central Jail and Hussainara Khatoon (1) v. Home Secretary, State of Bihar)

(iii) Whenever injustice is meted out to a large number of people, the Court will not hesitate in stepping in. Articles 14 and 21 of the Constitution of India as well as the international conventions on Human Rights provide for reasonable and fair trial����..

(iv) The common rule of locus standi is relaxed so as to enable the Court to look into the grievances complained on behalf of the poor, the depraved (sic), the illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them for any violation of any constitutional or legal right. [See Fertilizer Corpn., Kamgar Union (Regd.) v. Union of India, S.P. Gupta, People''s Union for Democratic Right, D.C. Wadhwa (Dr.) v. State of Bihar and BALCO Employees'' Union (Regd.) v. Union of India]

(v) �����.

(vi) �����

(vii) The dispute between two warring groups purely in the realm of private law would not be allowed to be agitated as a public interest litigation. (see Ramsharan autyanuprasi v. Union of India)

(viii) However, in an appropriate case, although the petitioner might have moved a Court in his private interest and for Redressal of personal grievances, the Court in furtherance of the public interest may treat it necessary to enquire into the State of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil v. Dr. Mahest Madhav Gosavi)

(xi) The Court in special situations may appoint a commission, or other bodies for the purpose of investigating into the allegations and finding out facts. It may also direct management of a public institution taken over by such committee. (See Bandhua Mukti Morcha, Rakesh Chandra Narayan v. State of Bihar and A.P. Pollution Control Board v. Prof. M.V. Nayudu)���..

Para 90: The curtain of this litigation must be drawn here and now. The State, admittedly, implemented many of the suggestions of the High Court. They would not be reopened. Some suggestions of the High Court are pending consideration at the hands of the State. They may be considered. The State shall, however, as regards the directions of the High Court which according to it can not be complied with, pass appropriate orders recording sufficient and cogent reasons therefore as expeditiously as possible and not beyond a period of three months from the date of communication of this order. The High Court, if any proceeding is initiated in relation thereto, may deal therewith in accordance with law.�

In view of settled proposition of law referred hereinabove, though in the present case dispute was between two private bodies but in view of report of Pattanaik Committee since it was brought into notice of this Court relating to the existence of organized crime in the State of U.P. this bench was very well within the power to exercise extraordinary to appoint one man committee and issuing appropriate guideline keeping in view the condition No.8 and 9 of the Guruvayoor Devasworm Managing Committee''s (supra) case. Condition No.8 and 9 are exception of condition No.7.

The orders dated 16.12.2005, 17.2.2006 and 20.3.2006 passed by this Court was impugned in the Hon''ble Supreme Court of India in Special Leave to appeal (Civil)���/2006 (CC 2929/2006). Special Leave to Appeal filed in the Hon''ble Supreme Court by the State of U.P. was dismissed on 13.4.2006.

The order dated 13.4.2006 has been brought on record by my office from the internet.

Since Hon''ble Supreme Court had dismissed the special appeal filed by the State of U.P. by order dated 13.4.2006, the decision taken by this Bench to appoint Pattanaik Committee and issue appropriate guidelines for compliance by the State of U.P. can not be flouted by the State of U.P.

The one man committee headed by Shri G.B. Pattanaik submitted his report on 26th April, 2006. Since, report submitted by Shri G.B. Pattanaik shows the existence of unruly and deep rooted organized crime in the State of U.P. hence, time was provided to learned counsel for the State of U.P. as well as Additional Solicitor General of India to submit its response by order dated 26.4.2006. State of U.P. had submitted his response with the assesertion that the State Government has taken steps to curb the organized crime. However, the existence of organized crime in various forms in the State of U.P. was not denied while filing counter affidavit. Learned Additional Solicitor General of India had chosen not to file any response after receipt of report of the G.B. Pattanaik as evident from order dated 26.5.2006.

Accordingly, on 26.5.2006 judgment was reserved. This Bench had delivered the judgment in the present case on 12th July, 2006. Writ petition was allowed in public interest. Certain directions were issued and State was directed to enforce those directions within three months.

On 3.11.2006 learned Advocate General had made statement before this Bench that State Government is agreed to implement the judgment and necessary steps have been taken for compliance of the judgment.

This Bench had directed the State Government to inform what action has been taken relating to contractual assignment keeping in view the report of Pattanaik Committee referred in Para 30 of the judgment. On 8.11.2006 after hearing learned Additional Chief Standing counsel order was reserved.

Thereafter, on 9.11.2006 since this Bench found that inspite of statement made before this Court, Government has failed to comply with the judgments in its letter and spirit. Chief Secretary and other principal secretaries of the various departments were directed to enforce the judgment in its letter and spirit and chief Secretary was directed of file an affidavit fixing 7.12.2006. It was provided by the order dated 9.11.2006 that Principal Secretary, Finance may not release fund to those departments who do not enforce the judgment before awarding contracts through tender or other means.

On 7.12.2006 when the case was taken up, learned Standing counsel prayed that case may be taken up at 2.00 P.M. At 2.00 P.M. Shri A.K. Verma, learned Additional Chief Standing Counsel had informed this Bench that against the order dated 9.11.2006, Special Appeal No.847 of 2006 was filed in which a Division Bench of this Court had passed an interim order and order of this Bench dated 9.11.2006 has been stayed in Special Appeal. He further submitted that inspite of all efforts he could not get certified copy of the order passed in Special Appeal. Hence, registry was directed to furnish the original record of the Special Appeal so that this Bench may proceed keeping in view the order passed in Special Appeal. Section Officer had informed the Bench Secretary of this Court that one of the member of the Division Bench had not signed the order, hence he is not in a position to produce the record of Special Appeal.

Since, learned counsel for the private parties are not providing any assistance to this Court, hence, Shri H.S. Jain, learned counsel practicing in this Court was appointed as amicus curie to provide necessary assistance by the order dated 7.12.2006. His name shall be printed in the cause list. Shri A.K. Verma had further admitted that only the order dated 9.11.2006 has been impugned in Special Appeal and the original judgment dated 12.7.2006 has not been challenged.

It has been settled by catena of judgments while interpreting provisions contained in Chapter VIII Rule 5 of the Rules of the Court that Special Appeal shall not be maintainable against the order passed by the Hon''ble Single Judge of this Court where the impugned order is an appellate or revisional order passed by the competent authority vide; 1995 (13) LCD 670, Lakhan Singh v. State Bank of India, 1995 (13) LCD 7, Lucknow University v. Ashwani Kumar Walia, 2001 (19) LCD 468, Committee of Management, Adarsh Vidyalaya Samiti, Sirodhan, Bulandshahr v. Prescribed Authority/Up Zila Magistrate, Sikandrabad, Bulandshahr, 1994 (1) UPLBEC 24, Sita Ram Lal v. District Inspector of Schools, Azamgarh and Others, 1998 (16) LCD 240, Shyam Singh v. Meerut Mandal Vikas Nigam, Meerut, 1999 (17) LCD 603, Ram Kripal Singh v. U.P. State Road Transport Corporation, Lucknow, 1998 (16) LCD 893, Rajni Kant Sahai v. State of U.P., 1999 (1) UPLBEC 697, J.P. Agarwal v. P.A. (Sub.D.M.), Sadar, Deoria and Others, 1998 (1) UPLBEC 711, Vijay Kumar Mahendra v. Registrar, Hon''ble High Court of Judicature at Allahabad and Others, 1995 (3) UPLBEC 1786, Kaushal Kishore Singh v. Shubh Karan Misra and Others, 1999 (2) UPLBEC 1617 (Alld.), R.K. Singh v. U.P.S.R.T.C., Lucknow and Others.

Thus no Special Appeal lies under Chapter VIII Rule 5 of the Rules of the Court before Division Bench of this Court against the order dated 12.7.2006 passed by this Bench. Only remedy available to State of U.P. against the judgment dated 12.7.2006 is to prefer Special Leave Petition in the Hon''ble Supreme Court.

This fact is evident from the States'' own action where the State Government against the order dated 6.12.2005, 17.2.2006 and 20.3.2006 had filed a special leave to appeal in the Hon''ble Supreme Court which was dismissed on 13.4.2006.

For convenience Chapter VIII Rule 5 is reproduced as under:

�Special Appeal An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction [or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.]�

A plain reading of Chapter VIII Rule 5 of the High Court Rules shows that special appeal lies against the judgment, or an order which may amount to judgment. It has been settled by this Court that all orders which may amount to final disposal of a case may be treated as judgment. Since the judgment was pronounced on 12.7.2006 and it has been not impugned, no Special Appeal shall lie. Order dated 9.11.2006 is an order passed during the course of monitoring. It is neither a judgment nor an order amount to final disposal of a case hence, it appears that Special Appeal does not lie against the order dated 9.11.2006.

It is settled law that in case the basic order is not challenged the consequential order can not be challenged. Once no special appeal lies against the original judgment dated 12.7.2006, Special Appeal filed against the consequential order is not sustainable under law. In P. Chithranja Menon & ors. v. A. Balakrishnan & ors., AIR 1977 SC 1720, the Hon''ble Supreme Court held that in the absence of challenge to the basic order, subsequent consequential order can not be challenged.

Similar view has been reiterated in Roshan Lal & ors. v. International Airport authority of India & ors., AIR 1981 SC 597, wherein the petitions were primarily confined to the seniority list and the Apex Court held that challenge to appointment orders could not be entertained because of inordinate delay and in absence of the same, validity of consequential seniority cannot be examined. In such a case, a party is under a legal obligation to challenge the basic order and if and only if the same is found to be wrong, consequential orders may be examined.

In H.V. Pardasani & ors. v. Union of India & ors., AIR 1985 SC 781, the Apex Court observed that if �petitioners are not able to establish that the determination of their seniority is wrong and they have been prejudiced by such adverse determination, their ultimate claim to promotion would, in deed, not succeed.

It is also settled law that appeal, review and revisions are the statutory remedies and unless Act or statute does not empower a body or authority or even this Court to exercise appellate power in certain matter, then such jurisdiction can not be exercised for any reason whatsoever. The jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means. It can be conferred only by legislature or by body empower to do so to exercise appellate jurisdiction by a Court or authority.

In Union of India v. Devkinandan Agrawal, AIR 1992 SC 96, the Hon''ble Apex Court has observed that �the Court cannot usurp legislative functions. The Court cannot rewrite the legislation for the reason that it had no power to legislate. The power of legislation has not been conferred on the Courts.�

In Karnal Improvement Trust v. Prakashwanti, (1995) 5 SCC 159, the Hon''ble Supreme Court has observed that acquiescence does not confer jurisdiction and an erroneous interpretation equally should not be perpetuated and perpetrated defeating of legislative animation. A similar view has been taken in U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd., AIR 1996 SC 1373.

In Sardar Hasan Siddique v. State Transport Appellate Tribunal, AIR 1986 All. 132, the Division Bench of Allahabad High Court has observed that a Court or a Tribunal cannot derive jurisdiction apart from the statute. No amount of acquiescence, waiver or the like can confer jurisdiction if a Tribunal is lacking, the doctrine of nullity will come into operation and any decision taken or given by such a tribunal will be a nullity.

Similarly in A.R. Antuley (supra), the Hon''ble Supreme Court has observed as under:

�A decision touching the jurisdiction���has to be not only consistent with the fundamental rights quaranteed by the constitution, the same cannot even be inconsistent with substantive provisions of the statutory law��..the criteria of a right to an appeal is an act which requires legislative Authority neither an inferior Court nor the superior Court nor both combined, can create such a right, it being one of the limitations and exception of jurisdiction.�

In view of above, any concession made by any lawyer which is contrary to the provisions of law or even a consent decree which is in violation of the statutory provisions, remains unenforcible and inconsequential. (Vide Smt. Nai Bahu v. Lala Ram Narain and Others, AIR 1978 SC 22; and Natraj Studio Pvt. Ltd. v. Navrang Studio and another, AIR 1981 SC 531).

In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & ors., AIR 1999 SC 2213, the Hon''ble Supreme Court held as under:

�It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigant being a substantive statutory right it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before an appeal can be maintained and no Court has the power to add to or enlarge those grounds. The appeal cannot be decided on merit on merely equitable jurisdiction.�

In view of the above, it is evident that the appeal is a statutory right which can be created only by the legislature and it does not lie by acquiescence/consent of the parties or even this Court is not competent to create the appellate forum if not provided under the statute.

There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised even at a belated stage in execution. The finding of a Court or Tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart form the statute. (Vide: United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230, Smt. Nai Bahu v. Lal Ramnarayan & ors., AIR 1978 SC 22; Natraj Studios Pvt. Ltd. v. Navrang Studio & anr., AIR 1981 SC 537; Sardar Hasan Siddiqui v. State Transport Appellate Tribunal, AIR 1986 All. 132; A.R. Antuley v. R.S. Nayak, AIR 1988 SC 1531; Union of India v. Deoki Nandan Aggarwal, AIR 1992 SC 96; Karnal Improvement Trust v. Prakash Wanti & anr., (1995) 5 SCC 159; U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd., AIR 1996 SC 1373; State of Gujarat v. Rajesh Kumar Chimanlal Barot & anr., AIR 1996 SC 2664; Kesar Singh & ors. v. Sadhu & ors., AIR 1999 SC 2213; and Collector of Central Excise, Kanpur v. Flock (India) (P) Ltd., Kanpur, AIR 2000 SC 2484.

In Sushil Kumar Mehta v. Gobind Ram Bohra (1990) 1 SCC 193, the Supreme Court, after placing reliance on large number of its earlier judgments and of the English Courts, particularly in Premeir Automobiles Ltd. v. K.S. Wadke, (1976) 5 SCC 496; Kiran Singh v. Chaman Paswan, AIR 1954 SC 340; Barraclough v. Brown, 1897 Authorised Controller 615; Deo D. Rochaster (P) v. Bridges, 109 ER 1001; Ledgard v. Bull, (1886) 11 App. Cases 648; Borton v. Finchan, (1921) 2 KB 291 and Chandrika Misir v. Bhiya Lal, (1973) 2 SCC 474; held, that a decree without jurisdiction is a nullity; when a special statute gave a right and also provides for a fourm for adjudication of rights, remedy has to be sought only under the provisions of that Act and the Common Law Court has no jurisdiction; where an Act creates an obligation and enforces the performance in specified manner, �performance cannot been forced in any other manner.�

A Division Bench of this Court in a case reported in 2001(19) LCD 1316, Prof. Y.C. Simhadri and Others v. Deen Bandhu Pathak, after considering the High Court Rules and power of Hon''ble the Chief Justice proceeded to held as under:

�17. Thus, the following principles emerge form the foregoing discussions:

The administrative control of the High Court vests in the Chief Justice alone and it is his prerogative to distribute business of the High Court both judicial and administrative.

The Chief Justice alone has the right and power to decide how the Benches of the High Court are to be constituted; which Judge is to sit alone and which cases he can and is required to hear as also which Judges shall constitute a Division Bench and what work those Benches shall do.

The puisne Judges can only do what work which is allotted to them by the Chief Justice or under his directions. No Judge or a Bench of Judges can assume jurisdiction in a case pending in the High Court unless the case is allotted to him or them by the Chief Justice.

Any order which a Bench or a Single Judge may choose to make a case that is not placed before them or him by the Chief Justice or in accordance with his direction is an order without jurisdiction and void.

Contempt jurisdiction is an independent jurisdiction of original nature whether emanating from the Contempt of Courts Act or under Article 215 of the Constitution of India.

For exercising the jurisdiction under Article 215 of the Constitution of India the procedure prescribed by law has to be followed.�

So far as power to monitor the implementation of its order or judgment while exercising extraordinary, jurisdiction. Is concerned is also a well recognized principle of law which may be exercised by this Court. In a case reported in 1999(2) SCC 718, A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Others, the Apex Court held that not only High Court or the Apex Court can monitor a case but to save time it can refer its judgment and order to appropriate authority for continuous monitoring and implementation. (Para 54)

In one another case reported in 1996 (5) SCC 281, Indian Council for EnviroLegal Action v. Union of India and Others, their Lordships of Apex Court held that High Courts have to shoulder greater responsibilities in tackling issues of fundamental rights of the citizens. Relevant portion from the judgment of Indian Council for EnviroLegal Action (supra) is reproduced as under:

�Even though, it is not the function of the Court to see the daytoday enforcement of the law, that being the function of the Executive, but because of the nonfunctioning of the enforcement agencies, the Courts as of necessity have had to pass orders directing the enforcement agencies to implement the law.�

Thus, in view of settled proposition of law, this Bench was very well within the jurisdiction directing the Chief Secretary as well as Principal Secretaries of various departments to implement the judgment of this Court in its letter and spirit. The orders passed during the course of monitoring by this Bench is neither a judgment nor an order amounting to judgment hence not amenable to special appeal under Chapter VIII Rule 5 of the Rules of the Court. This Bench was fully within the jurisdiction directing the authorities to implement its judgment.

Needless to say that enforcement of judgment relating to contractual matter or direction to allocate works relating to organized crime to an officer possessing rank of Additional Director General of Police (organized crime/mafia) is a thing which could have been done within a day by the State Government and its various departments, local bodies and corporations.

Order passed by the Division Bench seems to be perincuriam to the law laid down by the Apex Court and this Court referred hereinabove. Per incuriam means in ignorance of or without taking note of some statutory provisions or the judgment of Hon''ble Supreme Court or the larger Bench, vide; 2003 (5) SCC 446, State of Bihar v. Kalika Singh and Others, (1991) 4 SCC 139, State of U.P. and Another v. Synthetics and Chemicals Ltd. and another, AIR 1975 SC 907, Mamleshwar Prasad and Others v. Kanhaiya Lal, 2005 (1) SCC 608, Sunita Devi v. State of Bihar, 1999(3) SCC 112, Ram Gopal Baheti v. Giridharilal Soni and Others, AIR 1988 SC 1531; Municipal Corporation of Delhi v. Gurnam Kaur, 1999 (50 SCC 638; Sarnam Singh v. Dy. Director of Consolidation and Others, 2004 (4) SCC 590, State v. Ratan Lal Arora.

Recently while deciding the bunch of Writ Petition No.6403 (MB) of 2006 (M/s Ambay Enterprises and another) decided on 3.11.2006 relating to large scale of misappropriate of fund in contract matter the Division Bench of this Court had shown its displeasure and deprecated the conduct of State Government not taking necessary steps to check the assignment of work to Mafia and person having doubtful integrity.

Relevant portions from the judgment of M/s Ambay Enterprises and another (supra) is reproduced as under:

���..After all, it is a public money entrusted to the engineers and contractors for utilization in a proper way and manner with a view to provide good surface of road but with the intention of profiteering or say minting money by way of using substandard material in the construction/repair of roads, the concerned persons decive the public, cheat the Government and commit misappropriation of funds. It was said during arguments from the side of the State that the quality of roads is kept bad/substandard of that the nexus of engineers and contractors keep on flourishing by getting budgetary grants time and again for construction and repair of the same roads again and again���..Obviously such deceitful acts of the concerned authorities and persons would come within the ambit of criminal liability stretching to the respective offences as disclosed earlier. Indeed, it is the time for reminding those who are the custodians of the Government''s money, interest and reputation that they should not take the Government and public for ride and misappropriate the Government funds merely by executing superficial works of construction/repairs. We hope and believe that the Government will proceed further to other areas of the State and identify the persons involved in such scams���.

��The budgetary grants sanctioned by the Government for any work are not for being defalcated in this way. It seems to be the callousness of the concerned Engineers that they failed to protect the public interest and Government money and proceeded to take the two works simultaneously��

���..Who knows the nexus of the engineercontractor duo will again indulge in the same culpable acts and this process of estimates, grants and substandard construction/repair of roads would be an unending process��..

���The supervisory control check and administration of the Government over the executants/functionaries must be commensurate to the computerized technology in the sphere of constructiondivisions so as to plug the loopholes.�

From the observation made by the Division Bench of this Court referred hereinabove it is obvious that State Government since last 60 years have been failed to check the symphonizing of public money in the hads of unscrupulous elements and there is nexus between the Contractors and Engineers in the State of U.P. Contracts are awarded for extraneous reasons and considerations. The judgment of Division Bench has been upheld by the Apex Court. It was necessary for the State Government to comply with the judgment of this Corut.

Whenever, in history the barrel of pen had betrayed, the barrel of gun has replaced with mighty sound. In case, all the three wings of the Government do not take lesson from the history, things shall become more worst.

It appears that the dismissal of Special Leave to Appeal by Apex Court at interim stage on 13.4.2006 had not been brought into the notice of the Division Bench of this Court. In view of settled propostion of law discussed hereinabove, whether order passed by the Division Bench, in case suffers from want of jurisdiction, may be ignored? Whether this Court may proceed in accordance to law? Any order obtained without disclosing material fact like non disclosure of the dismissal of Special Leave to Appeal filed in the Hon''ble Supreme Court decided on 13.4.2006 may be taken by this Bench as a contemptuous act on the part of State Government? Since, learned Advocate General had made a statement before this Court that State of U.P. is ready to comply with the judgment and affidavit was filed by the Chief Secretary State of U.P., disowning of undertaking given before this Court may be taken as ground to proceed under Article 215 of the Constitution of India? Whether on account of noncompliance of original judgment and order dated 12.7.2006 which has not been stayed by the Division Bench, this Bench may proceed to exercise power conferred by Article 215 of the Constitution of India. Whether in view of law settled by the Apex Court referred hereinabove this Bench may proceed ahead to monitor the enforcement of its judgment. All these question and certain other question requires consideration and involves constitutional issue. Though the interim order passed in Special Appeal has not been produced by this Court and registry had also shown its inability to send the record in view of fact discussed hereinabove but in view of statement made by Additional Chief Standing Counsel Shri Ashok Kumar Verma I hereby suspended the order dated 9.11.2006 till next date of listing or till disposal of Special Appeal whichever is earlier.

However, since original judgment still survive, this Bench has got all power to monitor for its compliance as discussed hereinabove and to take suitable action, hence, in case by the next date of listing the original judgment is not complied with there will be no option except to proceed under Article 215 of the Constitution of India against the Chief Secretary and other concerned officers of the State of U.P.

Under the peculiar facts and circumstances of the case discussed hereinabove, the issue require assistance from the Advocate General of the State and he may be informed to provide necessary assistance on the next date of listing. On the next date of listing this Court may consider for appropriate action in accordance to Article 215 of the Constitution of India as well as constitution of monitoring committee to give effect the judgment of this Court.

List on 11.1.2007. This Bench expects that by next date of listing Chief Secretary, and Director General of Police as well as other authorities shall comply with the original judgment and order dated 12.7.2006 in its letter and spirit and shall ensure that all the departments'' local bodies and corporations comply with the judgment. Let an affidavit be filed by the Chief Secretary accordingly by the next date of listing.

Let a certified copy of this order be provided to parties'' counsel as well as Shri H.S. Jain, appointed as amicus curie by this Court, within a period of three days.

Office shall also send the copy of this order to the Chief Secretary as well as Director General of Police within the said period.