Mahaver Cold Storage and Ice Factory vs Madhusudan Malya and Others

B.K. Narayana, J.—Heard Sri S.K. Mehrotra, learned counsel for the applicant, Sri V.C. Mishra, learned Senior counsel, assisted by Sri S.N. Tangri, for opposite party No.1 and Sri Lalit Shukla, learned Additional Chief Standing Counsel, appearing for the opposite parties No.2 to 6.

The instant contempt application has been filed by the applicant alleging violation of interim order dated 4.6.2004 passed in Writ Petition No.2352 (M/S) of 2001.

Learned counsel for the applicant submitted that the Writ Petition No.2352 (M/S) of 2004 was filed by the applicant against the order dated 29.8.2002 passed by the Aditional Commissioner (Judicial), Agra Division Agra rejecting the applicant''s objection filed under Rule 285I of the U.P. Zamindari Abolition & Land Reforms Rules challenging the validity of the auction sale of the petitioner''s property comprising of a Cold Storage and Ice Factory and the order dated 14.5.2004 passed by the Board of Revenue, U.P., Lucknow dismissing the revision preferred by the applicant against the order of Additional Commissioner (Judicial), Agra Division, Agra dated 29.8.2002.

Learned counsel for the applicant further submitted that the Writ Petition No.2351 (M/S) of 2004 was filed before this Court on 29.5.2004 and since an appearance had been put in by the counsel on behalf of the opposite party No.1 at the admission stage, the hearing of the matter was adjourned and was ultimately on 4.6.2004 an order was passed by this Court after exchange of counter and rejoinder affidavits directing the case be listed in the first week of July, 2004 and till then the possession of the petitioner was directed not be disturbed in pursuance of the impugned order.

Learned counsel for the applicant next submitted that despite the restrain order dated 4.6.2004 passed by this Court in favour of the applicant, the opposite party No.1 in connivance and collusion with the opposite parties No.2 to 5 took forcible possession of Cold Storage and Ice Factory in the night of 6/7.6.2004 although the opposite parties were fully aware of the interim order dated 4.6.2006 passed by this Court in favour of the applicant as the said order had been duly communicated to all the opposite parties by the evening of 6.6.2001.

Learned counsel for the applicant vehemently urged that neither during the course of arguments the possession of the applicant over the premises in question was disputed by the opposite party No.1 nor there is any averment in the counter affidavit filed on behalf of the opposite party No.1 in the Writ Petition No.2352 (M/S) of 2004 that the opposite party No.1 had taken possession of the disputed premises before passing of the interim order dated 4.6.2004 or that the opposite party No.1 was in possession of the premises in dispute.

Sri V.C. Mishra, learned senior counsel assisted by Sri S.N. Tangri contended that the allegation of the applicant that the possession of the disputed premises was taken in the night of 6/7.6.2004 is absolutely incorrect and the correct fact is that the possession of the disputed premises had been delivered to the opposite party No.1 by the opposite parties No.2 to 5 on 1.6.2004 itself and a possession memo was also prepared on the same date i.e. first of June, 2004, copy whereof had been filed as Annexure No.CA6 to the counter affidavit of opposite party No.1. Relying upon the possession memo, Sri Mishra submitted that since the petitioner had been dispossessed from the premises in dispute much before passing of the interim order in accordance with law, there was no question of the opposite parties committing any contempt of this Court''s order dated 4.6.2004 on 6/7.6.2004.

Similar pleadings have been taken by the opposite parties No.2 to 6 in their respective counter affidavits and Sri Lalit Shukla, learned Additional Chief Standing Counsel appearing for the opposite parties No.2 to 6 adopted the arguments advanced by Sri V.C. Mishra, learned senior counsel.

Sri S.K. Mehrotra, learned counsel for the applicant repelling the submissions made on behalf of the opposite parties submitted that the possession memo dated 1.6.2004 upon which the opposite parties are relying for establishing that they did not commit any contempt of this Court''s order dated 4.6.2004 for proving that the possession of the disputed premises had already been taken on 1.6.2004, is an ante dated document manufactured by the opposite party No.1 incollusion with the opposite parties No.2 to 6 subsequent to the passing of the interim order of this Court and after taking forcible possession of the premises in dispute on 6/7.6.2004 for the purpose of defending themselves from being prosecuted under the Contempt of Courts Act.

Sri Mehrotra next urged that in case the possession memo dated 1.6.2004 was in existence on the date of passing of the interim order, there was no reason for the opposite party No.1 to have not filed the same alongwith his counter affidavit and the very fact that neither the said possession memo was brought on record by the opposite party No.1 nor there is any mention of the same in the counter affidavit, clearly goes to show that neither the possession memo dated 1.6.2004 was in existence on the date of passing of the interim order nor the possession of the disputed premises had been delivered to the opposite party No.1 prior to passing of the interim order and the applicant was illegally dispossessed in the night of 6/7.6.2004 in gross contempt of this Court''s order dated 4.6.2004.

Sri V.C. Mishra, learned senior counsel tried to explain the circumstances under which the possession memo dated 1.6.204 could not be filed alongwith the counter affidavit by referring to paras 9, 10 and 11 of the second supplementary counter affidavit of the opposite party No.1, which do not sound very convincing.

I have carefully examined the submission made on behalf of the parties and gone through the record.

The interim order, violation whereof has been alleged in the instant contempt application, is unconditional. The said order was admittedly passed after exchange of the counter and rejoinder affidavits and hearing of learned counsel for the parties. I have also gone through the counter affidavit filed by the opposite party No.1 on 3.6.2004 in Writ Petition No.2352 (M/S) of 2004 and I am constrained to observe that the said counter affidavit neither contains any averment to the effect that the possession of the premises in dispute had been delivered to the opposite party No.1 by the opposite parties No.2 to 5 on 1.6.2004 nor the copy of the possession memo has been filed by the opposite party No.1 alongwith his counter affidavit. The counter affidavit of the opposite party No.1 also does not contain any recital that a possession memo was prepared on 1.6.2004 after the possession of the disputed premises was delivered by the opposite parties No.2 to 5 to the opposite party No.1. The aforesaid omissions give rise to a very strong presumption that the applicant was in possession over the premises in dispute on the date of passing of the interim order dated 4.6.2004 on 6/7.6.2004.

For the aforesaid reasons, I am of the view that the opposite parties No.1 to 6 are liable to be tried for having committed contempt of this Court''s order dated 1.6.2004 passed on Writ Petition No.2352 (M/S) of 2004.

List this case on 18.3.2009 for framing of charge. The opposite parties No.1 to 6 are directed to remain present in person before this Court on the date fixed for framing of charges.

(Ordered accordingly)