# Dinesh Kumar v. Alok Kumar Rai & Anr

- **Citation:** (2022) 4 ILRA 508
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-10
- **Case number:** Contempt Application (Civil) No. 26 of 2022
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-v-alok-kumar-rai-anr-48345
- **Pages:** 7

## Headnote

A. Civil Law - Contempt of Courts Act,
1971: Section 10/12 - Determination
of the lis between the parties is
necessary
prior
to
initiation
of
proceedings for contempt under the
Contempt of Courts Act. Any attempt in
taking cognizance of contempt relying upon
the judgment passed in some other case
would amount to stifling the respondents
from distinguishing the applicability of the
judgment from the facts of the case. (Para
15)
Contempt Application Dismissed. (E-10)

List of Cases cited:-

## Text

508 INDIAN LAW REPORTS ALLAHABAD SERIES
instrument. The complete reading of the
aforesaid rule clearly indicates that while
deciding the proceedings under Section 47A of the Stamp Act the Collector or its
authority
are
required
to
make
an
inspection after due notice to the parties to
the instrument. The proceeding under
Section 47-A of the Stamp Act shall not be
decided merely placing reliance on the ex
parte report of the Tehsildar or any
authority for that purpose. In the present
case
the
Tehsildar's
report
dated
03.05.2001 does not disclose as to whether
any notice was given to the petitioner
before inspection of the land in question by
the Tehsildar. Rather it clearly shows that it
was an ex parte report. Hence the order
dated 26.07.2001 was passed in violation
of Rule 7(2) (c) of the U.P. Stamp Valuation
of Property Rule, 1997."

11. In view of the law settled by this
Court, it is incumbent upon the Collector
while conducting the inquiry on initiation
of a stamp case under Section 47A, to
inspect the property in question in the
presence of the parties and to consider their
representation, if any, and then pass
appropriate, reasoned and speaking order.

12. In the case at hand, this Court has
perused the orders impugned and finds that
both the Collector and the Additional
Commissioner had placed reliance upon ex
parte reports, which ex parte reports also
do not mention in detail anything about the
property, they only said that the house was
found locked and from looking at it from
the outside, it seemed that it was fully
constructed.

13. The orders impugned are set
aside. If any amount has been deposited
by the petitioner in pursuance of the
orders impugned, the same shall be
refunded to her within a period of four
months from the date a copy of this order
is produced before the opposite party
no.3.

14. Accordingly, the petition stands
allowed.
----------
(2022)04ILR A508
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.03.2022

BEFORE

THE HON'BLE ALOK MATHUR, J.

Contempt Application (Civil) No. 26 of 2022

Dinesh Kumar ...Applicant
Versus
Alok Kumar Rai & Anr. ...Respondents

Counsel for the Petitioners:
Kaushlendra Tewari, Santosh Kumar Yadav

Counsel for the Respondents:
Shashank Bhasin, Anurag Kumar Singh,
Lalta Prasad Misra

A. Civil Law - Contempt of Courts Act,
1971: Section 10/12 - Determination
of the lis between the parties is
necessary
prior
to
initiation
of
proceedings for contempt under the
Contempt of Courts Act. Any attempt in
taking cognizance of contempt relying upon
the judgment passed in some other case
would amount to stifling the respondents
from distinguishing the applicability of the
judgment from the facts of the case. (Para
15)
Contempt Application Dismissed. (E-10)

List of Cases cited:-

1. Sudhir Vasudeva, Chairman & MD Vs M.
George Ravishekaran & ors. Civil Appeal No.
1816 of 2014
4 All. Dinesh Kumar Vs. Alok Kumar Rai & Anr.
509
2. Niyaj Mohammad Vs St.of Har.1994 (6) SCC
332

3. Priya Gupta Vs Ministry of Health & Family
Welfare (2013) 11 SCC 40
(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Kaushlendra Tewari,
learned counsel for applicant as well as Sri
Anurag Kumar Singh and Sri Shashank
Bhasin, learned counsel for respondents.

2. Learned counsel for applicant
submits that by means of judgment dated
12.07.2021 passed in Writ Petition No.
1432 (SB) of 2015, this Court had decided
the controversy pertaining to the Lucknow
University taking into consideration the
various statutes and rules applicable therein
and thereafter came to a conclusion that the
Executive Council does not have any
power of review of their earlier decisions
and on the basis of the said pronouncement
of law proceeded to allow the said writ
petition and granted benefits to the
petitioners therein directing them to be
treated as being substantially appointed on
the post of Assistant Professor/Lecturer.

3. Learned counsel for respondents
have raised a preliminary objection with
regard to maintainability of the present
contempt petition stating that the applicant
was neither a party to the writ petitions
decided by this Court vide judgment dated
12.07.2021 passed in Writ Petition No.
1432 (SB) of 2015 nor is he aggrieved or
concerned or even remotely connected with
the lis decided by this Court by the said
judgment. Opposing the petition, it has
been submitted that there is no averment or
assertions by the applicant that the
judgment dated 12.07.2021 passed in Writ
Petition No. 1432 (SB) of 2015 was ever
brought to the knowledge of the Executive
Council so as to allege willful disobedience
of the said order.

4. It has been stated that the petitioner
is a stranger to the said writ proceedings
and hence he has no locus to maintain the
present
contempt
alleging
noncompliance/disobedience of the judgment
dated 12.07.2021.

5. Learned counsel for applicant on
the other hand has submitted that once a
question of law has been settled by the writ
court then the University is bound by the
said pronouncements and submits that the
Executive Council in their meeting dated
31.07.2021 had in fact reviewed its earlier
decision dated 20.08.2007 which was
impermissible as per the pronouncement of
this Court in writ petition No. 1432 (SB) of
2015 and hence has committed contempt of
courts. He further submits
that the
judgment dated 12.07.2021 passed in Writ
Petition No. 1432 (SB) of 2015 was a
judgment in rem and was applicable to all
persons and even to the non-participants or
petitioners in the said case and hence the
respondents have committed contempt
while reviewing their earlier decisions.

6. He further submits that there is no
necessity of the applicant for approaching
this Court in exercise of Article 226 of the
Constitution of India to assail the order of
the Executive Council dated 31.07.2021
which ex-facie amounts to contempt and
hence proceeding under the Contempt of
Courts Act, 1971 would be maintainable.

7. I have heard learned counsel for
parties and perused the judgment dated
12.07.2021 passed in Writ Petition No.
1432 (SB) of 2015. A perusal of the said
judgment discloses that the same was
specifically with regard to the petitioners
510 INDIAN LAW REPORTS ALLAHABAD SERIES
therein who had assailed the orders of
Executive Council specifically on the
ground that Executive council does not
have any power of reviewing its order. The
Court after considering the provisions of
U.P. State Universities Act, 1973 as well as
statues of the University came to a
conclusion that the Executive Council does
not have any powers to review its decision
and hence proceeded to quash the orders
impeached therein and specific directions
were issued to the petitioners therein
granting benefits of the relief sought for in
the petition. Before quashing the order of
the executive council, the court had delved
to the factual matrix of the case before the
recording of finding that the executive
council had in fact reviewed its earlier
order.

8. The perusal of the judgment dated
12.07.2021 passed in Writ Petition No.
1432 (SB) of 2015 is very clear in terms
and it is applicable to the persons who had
invoked the writ jurisdiction of this Court.
After reading entire judgment, it cannot be
said that it was a judgment in rem
considering that it was only the case of the
petitioners which was considered in depth
by the writ court while coming to the said
conclusion. The applicant has urged that in
the instant case ,subsequent decision taken
by the Executive Council amounts to
reviewing its earlier decisions which exfacie amount to contempt.

9. The scope and ambit of the
jurisdiction of this Court under the
contempt of Court act can be culled from
the judgment of the Hon'ble Supreme Court
in
the
case
of
Sudhir
Vasudeva,
Chairman & MD Vs. M. George
Ravishekaran & others, delivered on 4th
February, 2014 in Civil Appeal No. 1816 of
2014 the Supreme Court held as follows:

"The power vested in the High
Courts as well as this Court to punish for
contempt is a special and rare power
available both under the Constitution as
well as the Contempt of Courts Act, 1971.
It is a drastic power which, if misdirected,
could even curb the liberty of the individual
charged with commission of contempt. The
very nature of the power casts a sacred
duty in the Courts to exercise the same with
the greatest of care and caution. This is
also necessary as, more often than not,
adjudication of a contempt plea involves a
process of self determination of the sweep,
meaning and effect of the order in respect
of which disobedience is alleged. Courts
must not, therefore, travel beyond the four
corners of the order which is alleged to
have been flouted or enter into questions
that have not been dealt with or decided in
the judgment or the order violation of
which is alleged. Only such directions
which are explicit in a judgment or order
or are plainly self evident ought to be taken
into
account
for
the
purpose
of
consideration as to whether there has been
any disobedience or willful violation of the
same. Decided issues cannot be reopened;
nor the plea of equities can be considered.
Courts must also ensure that while
considering a contempt plea the power
available to the Court in other corrective
jurisdictions like review or appeal is not
trenched upon. No order or direction
supplemental to what has been already
expressed should be issued by the Court
while exercising jurisdiction in the domain
of the contempt law; such an exercise is
more appropriate in other jurisdictions
vested in the Court, as noticed above. The
above principles would appear to be the
cumulative outcome of the precedents cited
at the bar, namely, Jhareswar prasad Paul
and Another Vs. Tarak nath Ganguly and
Others, V.M.Manohar Prasad vs. N.
4 All. Dinesh Kumar Vs. Alok Kumar Rai & Anr.
511
Ratnam
Raju
and
Another,
Bihar
Finance Service House Construction
Cooperative Society Ltd. Vs. Gautam
Goswami and Others and Union of India
and Others Vs. Subedar Devassy PV."

10. Before a Court punishes a
contemner
for
non-compliance
of
a
direction, the court must be satisfied that
disobedience of the judgment, decree,
direction or writ was willful or intentional.
In Niyaj Mohammad Vs. State of
Haryana, reported in 1994 (6) SCC 332,
the Bench of three learned Judges held
thus:

"Before a contemner is punished
for non-compliance of the direction of a
court, the court must not only be satisfied
about the disobedience of any judgment,
decree, direction or writ but should also be
satisfied that such disobedience was willful
and intentional. The civil court while
executing a decree against the judgment
debter is not concerned and bothered
whether the disobedience to any judgment, or
decree, was willful. Once a decree has been
passed it is the duty of the court to execute
the decree whatever may be consequence
thereof. But while examining the grievance of
the person who has invoked the jurisdiction
of the court to initiate the proceeding for
contempt for disobedience of its order, before
any such contemner is held guilty and
punished, the court has to record a finding
that such disobedience was willful and
intentional. If from the circumstances of a
particular case, brought to the notice of the
Court, the court is satisfied that although
there has been a disobedience but such
disobedience is the result of some compelling
circumstances under which it was not
possible for the contemner to comply with the
order, the court may not punish the alleged
contemner."
11. From the above discussion, this
Court of the considered view that there is a
clear distinction between a judgment laying
down or settling any proposition of law
which can be used as a precedent and a
judgment which is passed inter parties
which is binding between the parties to the
dispute. In case we were accepted the
contention of learned counsel for applicant
and entertain contempt proceeding on the
premise that the decision taken by the
Executive council is in willful disobedience
of the judgment of this Court then there
would be flood of cases where any
individual would be at liberty to approach
this Court in exercise of its contempt
jurisdiction alleging disobedience of some
or the other order of this Court passed in
relation to similarly situated persons in
similar circumstances and facts.

12. The contempt jurisdiction is a
discretionary remedy which can be invoked
by a person who is obliged to demonstrate
that there is willful disobedience of the
order of this Court. The decision of the
Executive Council if assailed before writ
court, it would open for the applicant to
place reliance on the law laid down by the
Court where the Executive Council cannot
be permitted to review its earlier order and
in support of its submission it was open for
him to rely on the precedent set by this
Court in its judgment dated 12.07.2021
passed in Writ Petition No. 1432 (SB) of
2015 in support of his claim. Merely
because the judgment has been pronounced
inter parties qua one set of facts it cannot
be said that subsequently if any other
similar order is passed, it would amount to
contempt of Courts Act. Needless to say
that a precedent can be distinguished on
facts and may loose its strength as a
precedent if established that it was a
consent order, obiter dicta per-incuriam or
512 INDIAN LAW REPORTS ALLAHABAD SERIES
sub-silentio. In case an order is passed
contrary
to
the
proposition
of
law
enunciated by a Court then a person can
assail the said order placing reliance on the
previous order of the Court and only once
the writ court after examining the order
impugned therein is satisfied the same
suffers from infirmity as alleged by the
applicant can the said order be quashed.
Without an authoritative pronouncement by
the writ court, after examining the
particular facts of the case resorting to
proceeding under Contempt of Courts Act
alleging willful disobedience amounting to
contempt will generally not be accepted
subject to same peculiar facts of a case
where all the ingredients of Section 10/12
of Contempt of Courts Act are fulfilled.

13. From the discussion hereinabove,
it is clear that to allege contempt it has to
be demonstrated that there is a binding
judgment
between
the
parties
that
disobedience of which results in initiation
of proceedings under the Contempt of
Courts Act.

14. The apex court had considered
this aspect of the matter in the case of Priya
Gupta v. Ministry of Health & Family
Welfare, (2013) 11 SCC 40, wherein it has
been held as under:-

"It is true that Section 12 of the
Act contemplates disobedience of the
orders of the court to be wilful and further
that such violation has to be of a specific
order or direction of the court. To contend
that there cannot be an initiation of
contempt proceedings where directions are
of a general nature as it would not only be
impracticable, but even impossible to
regulate such orders of the court, is an
argument which does not impress the court.
As already noticed, the Constitution has
placed
upon
the
judiciary,
the
responsibility to interpret the law and
ensure proper administration of justice. In
carrying out these constitutional functions,
the courts have to ensure that dignity of the
court, process of court and respect for
administration of justice is maintained.
Violations which are likely to impinge upon
the faith of the public in administration of
justice and the court system must be
punished, to prevent repetition of such
behaviour and the adverse impact on
public faith. With the development of law,
the courts have issued directions and even
spelt out in their judgments, certain
guidelines, which are to be operative till
proper legislations are enacted. The
directions of the court which are to provide
transparency in action and adherence to
basic law and fair play must be enforced
and obeyed by all concerned. The law
declared by this Court whether in the form
of a substantive judgment inter se a party
or are directions of a general nature which
are intended to achieve the constitutional
goals of equality and equal opportunity
must be adhered to and there cannot be an
artificial distinction drawn in between such
class of cases. Whichever class they may
belong to, a contemnor cannot build an
argument to the effect that the disobedience
is of a general direction and not of a
specific order issued inter se parties. Such
distinction, if permitted, shall be opposed
to the basic rule of law."

15. Determination of the lis between
the parties is necessary prior to initiation of
proceedings
for
contempt
under
the
Contempt of Courts Act. Any attempt in
taking cognizance of contempt relying
upon the judgment passed in some other
case
would
amount
to
stifling
the
respondents
from
distinguishing
the
applicability of the judgment from the facts
4 All. Dinesh Kumar Vs. Alok Kumar Rai & Anr.
513
of the case. At this stage we would hasten
to add that all the authorities and courts are
under a constitutional mandate to follow,
abide and respect all the judicial decisions,
and we do not, the least, mean that the
authorities need not follow and abide by the
judgments, but the issue at hand is as to
whether merely not following a judgement
of court passed on some other case, would
amount to contempt of court.

16. In the present case, it has been
alleged that the Executive Council had
taken some decision on 20.08.2007 and
they have re-appreciated the same facts in
their meeting dated 31.07.2021. It may be
possible that there may have been some
change in circumstances, change in the
rules and regulations or some other
material consideration necessitating reappreciating revisiting the earlier order,
or the subsequent decision could be
distinguishable
from
the
previous
decision or it may be now permissible
under law are all questions of fact, the
determination
of
which
would
be
necessary before allegation of contempt
can be levelled. Undoubtedly, the law
having been down by this Court in the
previous decision, that the executive
Council would not have the power of the
reviewing their decisions, would be a
precedent and also liable be considered
by the writ Court when examining the
validity of the subsequent decision.

17. The peculiar fact of any case
deserve to be appreciated by a writ court
and
only
after
determinative
pronouncement that factual aspect in the
case under consideration are similar, and
hence
applying
the
law
laid
down
previously by the court would cover the
case in the under consideration can result in
setting aside of the impugned order.
18. The contempt proceeding by their
very nature are summary proceedings. In
case the argument of applicant is accepted
then in exercise of contempt jurisdiction
alleging disobedience of an order where the
applicant is not party would necessary
entail an in-depth determination of the
dispute and also finding on the rights
asserted by the applicant, which would be
clearly beyond jurisdiction.

19. Considering the fact of the instant
case ,it may be difficult to straightway
conclude that the Executive Council had
committed contempt of the earlier orders of
the court without the fact being examined
previously by any court. It has also not
been stated that the order of the earlier writ
court or ever brought to the knowledge of
the Executive Council so as to substantiate
the allegation that the Executive Council
took the decision on 31.07.2021 in willful
defiance of the earlier order of the writ
court dated 12.07.2021.

20. Considering the aforesaid facts,
this Court is of the considered view that the
decision of the Executive Council may or
may not be legal but does not amount to
contempt as it does not fulfill condition set
forth in Section 12 of the Contempt of
Courts Act. To exercise the power under
the Contempt of Courts Act specially with
regard to civil contempt it has to be
demonstrated that there exists a binding
judgement of the court and even after
service of the said judicial opinion on the
respondents it has not been complied,
pursuant to which this Court can initiate
proceeding in exercise of power under
Section 12 of the Contempt of Courts Act.
Without there being binding decision in a
matter between the parties, this Court
cannot
straightway
proceed
against
respondents under the Contempt of Courts
514 INDIAN LAW REPORTS ALLAHABAD SERIES
Act. The present proceedings raised by the
applicant are clearly misconceived and an
abuse of process of the court. It was always
open for the applicant to approach the writ
court and assail validity of the decision of
the Executive Council and restoring to the
proceedings under the Contempt of Courts
Act and is nothing but abuse of the said
process.

21. In light of the above, the contempt
petition is dismissed with a cost of Rs.
500/- which shall be deposited in the
Library Funds of Awadh Bar Association,
Lucknow within two months from today.
----------
(2022)04ILR A514
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

FAFO No. 1245 of 2016

Smt. Beena Tyagi & Ors. ...Appellants
Versus
Mohamed Azmer & Ors. ...Respondents

Counsel for the Appellants:
Sri Bharat Bhushan Paul, Sri Swithin
Subhashish Lawren

Counsel for the Respondents:
Sri Komal Mehrotra

(A) Torts Law - Motor vehicle Act,1988 -
Section
173
-
enhancement
of
compensation - The Income Tax Act,
1961- Section 194A (3) (ix) - total amount
of interest, accrued on the principal
amount
of
compensation
is
to
be
apportioned on financial year to financial
year basis - if the interest payable to
claimant for any financial year exceeds
Rs.50,000/- - insurance company/owner
is/are entitled to deduct appropriate
amount under the head of 'Tax Deducted
at Source' - if the amount of interest does
not exceeds Rs.50,000/- in any financial
year - registry of Tribunal is directed to
allow the claimants to withdraw the
amount without producing the certificate
from
the
concerned
Income-Tax
Authority.(Para - 15)

Marriage ceremony of son of deceased -
deceased came out from mandap to see-off his
friends - standing beside road - Bolero Car
driven very rashly and negligently by its driver
- dashed deceased - after coming on wrongside - in front of gate of mandap - deceased
sustained serious fatal injuries - died -
deceased 43 years - serving in a private
company - Claimants/appellants awarded Rs.6,
87,000/-,
with 7% rate
of
interest as
compensation - Tribunal not awarded any sum
for future loss of income aggrieved - hence
appeal.(Para - 2,5)

HELD:-Tribunal
has
committed
error
in
discarding the documentary evidence and
assessing the income as Rs.6,000/- per month
only. Tribunal commited grave error in not
adding any percentage of amount towards
future loss of income. 30% added towardws
future prospects.Total compensation payable to
the appellants-claimants is Rs.30,12,000/-. Rate
of interest fixed at 7.5%.(Para - 9,11,12)

Appeal partly allowed. (E-7)

List of Cases cited:-

1. Rahul Sharma & anr. Vs National Insurance
Co., 2021 in Civil Appeal No.1769 of 2021

2. United India Insurance Co.Ltd. Vs Indiro Devi
& ors., S. L. P. (Civil) Nos.7104-7105 of 2016

3. Rukmani Jethani & ors. Vs Gopal Singh & ors.
, SLP (Civil) No.27802 of 2017

4. National Insurance Company Vs Pranay Sethi,
2014 (4) TAC 637 (SC)

5.
Smt.Sarla
Verma
Vs
Delhi
Transport
Corporation , 2009 (2) TAC 677 (SC)