Nirmal Kumar vs R.S.E.B. Falna and Others

B.J. Shethna, J.—Petitioner Nirmal Kumar had initially filed this writ petition through his learned Counsel Shri R.S. Sharma, which was straightaway admitted by my learned brother V.G. Palshikar, J. on 14.7.1998 and notices were ordered to be issued. On stay petition No. 666/98 filed in this writ petition on the same day i.e. on 14.7.1998, notice was ordered to be issued and meanwhile all Further proceedings were stayed. Mr. K.C. Samdaria, learned Counsel has later on filed power on behalf of the petitioner in place of learned Counsel Shri R.S. Sharma. In spite of the aforesaid orders passed by this Court in his favour, the petitioner sent registered application dated 26.2.1999 addressed to the learned Chief Justice of this Court making serious allegations in it and praying for early hearing of the matter.

Today, name of Mr. R.S. Sharma was shown for the petitioner by the office instead of Mr. K.C. Samdaria, who had later on filed his power in this matter. However, Mr. Samdaria was present in the Court, therefore, he was requested to assist the Court in this matter as he already filed power in this matter for the petitioner. Learned Counsel Shri Samdaria was shown the application dated 26.2.1999 addressed by the petitioner to the learned Chief Justice of this Court and Mr. Samdaria also expressed his anguish on the attitude of the petitioner in writing such application without taking him into confidence. He expressed his feeling that he was also ignored by the petitioner in getting the matter heard early. The tone of the petitioner in that application prima facie constitute a case for contempt. However, this Court is not taking any action for it at present. As it was agreed by both the learned Counsel for the parties, Mr. Samdaria and Mr. Tatia, that matter can be heard and disposed of today right now.

By way of this petition, the petitioner has challenged the impugned ordered dated 19.3.1997 and the notice dated 28.3.1997 in execution case No. 2/97 and prayed that all the further proceeding initiated by the learned Addl. District and Sessions Judge, Nagaur be quashed and set aside. It is also prayed that the learned Additional District and Sessions Judge, Nagaur be directed to issue process for the execution of the award immediately. Detailed reply affidavit is filed by the respondent Board and in view of the reply affidavit itself this petition was required to be dismissed for more than one reasons.

Firstly, it is a revisable order passed by the Civil Court which could always be challenged by way of a revision u/s 115 CPC before this Court.

Secondly, the impugned order dated 29.3.1997 is merely an order of notice to show cause, Ordinarily, this Court would not interfere with notice in its writ jurisdiction.

Thirdly, the petitioner has not come before this Court with clean hands and tried to mis-led this Court by making false and incorrect statement in the writ petition. For instance, in para No. 2 of the writ petition, the petitioner stated that the work given on contract and a sum of Rs. 5,97,305 was due regarding the work of lining, labour charges and compensation.

Fourthly, the petition is based on an award dated 6.5.1996 passed by the so called Sole Arbirator which fact is denied by the respondent Board specifically in its reply. The case of the Board iS that it had never entered into any contract or agreement dated 6.5.1996 with the petitioner and such sole Arbitrator had no authority to pass the award. Not only that, the Board had to file an FIR against the petitioner for offences punishable under Sections 420, 467, 468 and 479 IPC on 7.6.1996 at Industrial Area, Police Station, Pali for concocting such false award from the fictitious person. Copy of FIR is produced at Annex. R-1 with the reply affidavit.

In view of the total non-cooperation extended to learned Counsel Shri Samdaria by his client-the petitioner, Mr. Samdaria has not even filed rejoinder and in absence of it he was not even in a position to convince the Court on merit. In absence of any rejoinder to the reply affidavit I am of the opinion that this petition deserves to be dismissed in view of the reply affidavit.

Accordingly, this petition is dismissed with a special cost of Rs. 10,000/- (Rs. ten thousand) which shall be deposited by the petitioner with the Registrar General of this Court within one month from today. On depositing the cost, the same shall be utilised for legal aid purpose. Stay granted earlier stands vacated forthwith.