# Siya Ram v. Nagar Palika Parishad and another

- **Citation:** (2010) 2 ILRA 437
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-05
- **Case number:** Special Appeal No. 662 of 2010
- **Bench:** Amitava Lala, Acj Shabihul Hasnain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siya-ram-v-nagar-palika-parishad-and-another-41569
- **Pages:** 6

## Headnote

Sri Mr. Zafar Nayyer, Addl. Advocate
General,
Mr. M.C. Chaturvedi, CSC
Mr. Ravi Shankar Prasad, Addl. CSC
Mr. M.C. Tripathi, Addl. CSC.

Counsel for Respondents:
Mr. M.D. Singh Shekhar
Mr. R.D. Tewari

High Court Rules-1992 Chapter VIII-
Rule-5 Special Appeal-against the order
framing Charges-for willful disobedience
of judgement affirmed by apex courtThree affidavits filed on different timesfound misleading-whether special appeal
maintainable? Held-'yes'.

Held: Para 6

Upon a conjoint reading of the Supreme
Court
judgments,
we
do
not
find
anything that there is any dearth of right
to
prefer
an
appeal
in
such
circumstances, and therefore, according
to us, the appeal is maintainable.
Case law discussed:
AIR 2006 SC 2190; (1998)3 UPLBEC 2333;
(1997) 4 SCC 430; (2004) 8 SCC 683; JT
2001(4) SC 405;(1996) 1 SCC 589;JT 2007
(12) SC 27; AIR 2003 SC 2723; (1972) 3 SCC
839; (1995) 4 SCC 1.

## Text

2 All] Siya Ram V. Nagar Palika Parishad and another
437

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2010

BEFORE
THE HON'BLE AMITAVA LALA, ACJ
THE HON'BLE SHABIHUL HASNAIN, J.

Special Appeal No. 662 of 2010

S.M.A. Abdi and another

 ...Respondents-Appellants
Versus
Private
Secretaries
Brotherhood
and
another ...Petitioners-Respondents

Counsel for the Petitioner:
Sri Mr. Zafar Nayyer, Addl. Advocate
General,
Mr. M.C. Chaturvedi, CSC
Mr. Ravi Shankar Prasad, Addl. CSC
Mr. M.C. Tripathi, Addl. CSC.

Counsel for Respondents:
Mr. M.D. Singh Shekhar
Mr. R.D. Tewari

High Court Rules-1992 Chapter VIII-
Rule-5 Special Appeal-against the order
framing Charges-for willful disobedience
of judgement affirmed by apex courtThree affidavits filed on different timesfound misleading-whether special appeal
maintainable? Held-'yes'.

Held: Para 6

Upon a conjoint reading of the Supreme
Court
judgments,
we
do
not
find
anything that there is any dearth of right
to
prefer
an
appeal
in
such
circumstances, and therefore, according
to us, the appeal is maintainable.
Case law discussed:
AIR 2006 SC 2190; (1998)3 UPLBEC 2333;
(1997) 4 SCC 430; (2004) 8 SCC 683; JT
2001(4) SC 405;(1996) 1 SCC 589;JT 2007
(12) SC 27; AIR 2003 SC 2723; (1972) 3 SCC
839; (1995) 4 SCC 1.

(Delivered by Hon'ble Amitava Lala, J.)

1. Amitava Lala, A.C.J. This special
appeal is arising out of an order passed by
the learned Single Judge dated 23rd April,
2010 in a contempt proceedings, being Civil
Misc. Contempt Petition No. 1774 of 2008.
However, the officers, against whom the
charges have been framed, have preferred
this appeal and the same is supported by the
State.

2. Originally, an order was passed
on 29th July, 1998 by a Division Bench of
this Court to give appropriate pay scale to
the Private Secretaries working in the
office of the U.P. State Law Officers,
Allahabad/Lucknow. The said order was
challenged by the State before the
Supreme Court, which was also dismissed
by order dated 28th of November, 2007.
After about a period of six months, the
contempt application was filed on 11th
May, 2008, which has given rise to the
order impugned in the present appeal. The
State also preferred a review petition
before the Supreme Court against the
order dated 28th November, 2007, which
was dismissed on 23rd July, 2008.
Thereafter, a compliance affidavit dated
17th November, 2008 was filed annexing
the Office Order dated 14th November,
2008, but the learned Single Judge,
hearing contempt matters, found that it
was misleading and in the teeth of the
judgment of this Court and passed an
order, in detail, giving further opportunity
to the appellants herein to comply the
directions given the Court. Such order,
according to us, is in the form of
interpretation of the earlier order passed
by the Division Bench of this Court. A
second compliance affidavit was filed on
438 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
25th May, 2009, which was also found to
be misleading in nature by the learned
Single Judge taking the contempt matters.
Another compliance affidavit was filed
providing pay protection and bifurcating
the cadre in different pay scales to the
Private Secretaries of the office of the
U.P.
State
Law
Officers,
Allahabad/Lucknow. However, on closure
scrutiny of the order, we find that the
learned Single Judge wanted to find out
the import by interpretation of the order
and give effect of the same in his own
way. However, sitting in the contempt
jurisdiction, interpretation of the original
order cannot be held to be justiciable nor
advisable. In any event, ultimately the
Court
arrived
at
the
following
conclusions:-

"Thus, there being a prima facie case
for trial, the following charges are
framed:

"You
Shri
S.M.A.
Abdi,
The
Principal Secretary (Law) Government of
Uttar Pradesh, U.P. Secretariat, Lucknow
show cause why he should not be tried
and punished for willful and deliberate
violation of the order and judgment of this
Court dated 29.7.1998 passed in Writ
Petition No. 17885 of 1996.

You are further charged for filing
false
and
misleading
affidavits
of
compliance
in
this
Court
applying
subterfuge to overcome the orders of this
Court."

"You Shri Manjeet Singh, The
Principal Secretary (Finance) Government
of
Uttar
Pradesh,
U.P.
Secretariat,
Lucknow show cause why he should not
be tried and punished for willful and
deliberate violation of the order and
judgment of this Court dated 29.7.1998
passed in Writ Petition No. 17885 of
1996.

You are further charged for filing
false
and
misleading
affidavits
of
compliance
in
this
Court
applying
subterfuge to overcome the orders of this
Court."

Your reply should be filed on or
before 11.5.2010 after serving a copy on
the counsel for the applicant who may file
a reply thereto before the next date fixed.

It is clarified that any observations or
findings made or recorded herein above
are only prima facie in nature and are
subject to the replies which may be filed
in response to the charges framed.

List on 14.5.2010 when both the
officers shall be present in person."

3. Here, a question arose before this
Court whether the special appeal from
such order, which is on the basis of the
prima facie view of the Court of
Contempt, can be held to be maintainable
under Chapter VIII Rule 5 of the
Allahabad High Court Rules, 1952. To
that, the learned Additional Advocate
General has submitted before this Court
that in AIR 2006 SC 2190 (Midnapore
Peoples' Co.op. Bank Ltd. & Ors. Vs.
Chunilal
Nanda
&
Ors.),
similar
question was considered and it was held
by the Apex Court that against an order of
the High Court deciding an issue or
making any direction relating to the
merits of the dispute between the parties,
in a contempt proceedings, the intra-Court
appeal can be held to be maintainable.
Relevant finding of the Supreme Court is
2 All] S.M.A. Abdi and another V. P.S. Brotherhood and another
439
available in sub-paragraph V of paragraph
11 of such judgment, which is as follows:-

"V. If the High Court, for whatsoever
reason, decides an issue or makes any
direction, relating to the merits of the
dispute between the parties, in a contempt
proceedings, the aggrieved person is not
without remedy. Such an order is open to
challenge in an intra-court appeal (if the
order was of a learned single Judge and
there is a provision for an intra-court
appeal), or by seeking special leave to
appeal
under
Article
136
of
the
Constitution of India (in other cases).

The
first
point
is
answered
accordingly."

4. That apart, we have come across
another Supreme Court judgment reported
in [(1998) 3 UPLBEC 2333, A.P.
Verma, Principal Secretary, Medical
Health and Family Welfare, U.P.
Lucknow & Ors. Vs. U.P. Laboratory
Technicians Association, Lucknow &
Ors.], wherein it has been held that an
appeal will also be maintainable under
Chapter VIII Rule 5 of the High Court
Rules against the directions issued in the
impugned order, which are regarding the
merit of the claim made by the
respondents in the writ petition.

5. Requirement of understanding the
legal position is to examine as to whether
the contempt appeal can be held to be
maintainable only after passing of the
final order under Section 19 of the
Contempt of Courts Act or not. It is right
to say that when final order is passed,
then the same will be appealable, but what
will happen if any judgment and order is
passed by the Court, which are in the
trappings of the finality during the
interlocutory stage of the proceedings -
whether the aggrieved persons will be
debarred from preferring an appeal?

6. Upon a conjoint reading of the
Supreme Court judgments, we do not find
anything that there is any dearth of right
to prefer an appeal in such circumstances,
and therefore, according to us, the appeal
is maintainable.

7. So far as the merit is concerned,
the learned Senior Counsel appearing for
the complainants (respondents herein),
has urged before us that repeated
Government Orders were issued to
frustrate the grievance of the Private
Secretaries of the office of the U.P. State
Law Officers, Allahabad/Lucknow, to
which the learned Additional Advocate
General has contended before us that the
appellants have already complied with the
order and since the Private Secretaries are
the staff of his own office, it is his duty to
protect
their
interest.
The
learned
Additional Advocate General has also
relied
upon
an
Office
Memorandum/Government Order, being
dated 29th July, 2009 and said that this
Order has been issued by the appellant
no.1, being the Principal Secretary and,
therefore,
the
same
is
the
latest
Government Order superseding the earlier
Office
Memorandums/Government
Orders to protect the interest of the
Private Secretaries as per the orders of the
Court in the writ petition as well as in the
contempt
application.
However,
the
learned Senior Counsel appearing for the
complainants has stated that there is no
indication
with
regard
to
any
consequential benefit, to which both the
learned Additional Advocate General and
the learned Chief Standing Counsel have
given an undertaking before this Court
that the same will be done in compliance
with the direction of this Court and
440 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
further said that consequential benefit is
automatic upon enhancement of the pay
scale pursuant to the orders of this Court
and as per the Government Order dated
29th July, 2009. The learned Additional
Advocate General further said that on
30th July, 2009, an order was passed by
the Contempt Court upon considering the
Government Order dated 29th July, 2009,
which has not been taken into account by
the learned Judge taking contempt matters
at the time of passing the impugned order
and charges were framed against the
appellants. However, the learned Senior
Counsel appearing on behalf of the
complainants has accepted the statement
and undertakings given by the learned
Additional Advocate General as also the
learned Chief Standing Counsel, but
contended that the officers, who failed to
discharge their responsibilities and are
responsible
for
committing
gross
contempt of the order of the Court by
their willful disobedience, should not be
exonerated. Though after making the
complaint, the matter is between the
Court and the contemnor, but the learned
Senior Counsel was a little enthusiastic to
cite certain judgments to come to an
appropriate conclusion in this respect. He
has handed a set of following judgments
before this Court, on which reliance has
been placed:-

8. In (1997) 4 SCC 430 (State of
Bihar & Ors. Vs. Subhash Singh),
wherein the Supreme Court affirmed the
judgment of the High Court in a contempt
matter, by which a cost of Rs.5000/-
against the erring official was imposed for
wilful disobedience of the order of the
High Court.

9. In (2004) 8 SCC 683 (E.T.
SUNUP
Vs.
C.A.N.S.S.
Employees
Association & Anr.), wherein it was held
that "It has become a tendency of the
government officers to somehow or the
other circumvent the orders of court and
try to take recourse to one justification or
other. This shows complete lack of grace
in accepting the orders of the Court. This
tendency of undermining the Court's order
cannot be countenanced. This Court time
and again has emphasized that in a
democracy the role of the Court cannot be
subservient to administrative fiat. The
executive and legislature have to work
within the constitutional framework and
the judiciary has been given the role of
watchdog to keep the legislature and
executive within check." However, in the
said case, considering the tenure of
service of the officer concerned etc., a
fine of Rs. 5000/- was imposed.

10. In JT 2001 (4) SC 405 (Vidhya
Dhar Sharma Vs. G.B. Patnaik &
Ors.), wherein the Supreme Court has
held that it is only the pain and fear of
being punished for contempt that seems to
have persuaded the erring persons to take
action and comply with the direction of
the Supreme Court. In that case, a cost of
Rs. 5,000/- was imposed.

11. In (1996) 1 SCC 589 (Abhijit
Tea Company Pvt. Ltd. Vs. Terai Tea
Co. (P) Ltd. & Ors.), it was held that no
one should be left in lurking doubt that by
manoeuvre or otherwise one would get
over non-implementation of the order of
the Court and was successful in its
avoidance or seem to be defeated. The
arm of the Court is long enough to reach
injustice wherever it is found, which
should be dealt with appropriately.

12. In JT 2007 (12) SC 27 (M/s.
Maruti Udyog Limited Vs. Mahinder
2 All] S.M.A. Abdi and another V. P.S. Brotherhood and another
441
C. Mehta & Ors.), it has been held that
the facts and circumstances of the case are
such that the contemnors should be held
guilty and be punished with appropriate
punishments.

13. In AIR 2003 SC 2723 (U.P.
Resi. Emp. Co-op. House B. Society &
Ors. Vs. New Okhla Indus. Deve.
Authority & Anr.), wherein a false
affidavit was filed to mislead the Court
and with a view to see that the Court does
not pass any order, adverse to what Noida
Authority is contending, therefore, a show
cause notice was issued by the Supreme
Court.

14. In (1972) 3 SCC 839 (Mulk Raj
Vs. State of Punjab), wherein it was held
that the apology is an act of contrition.
Unless apology is offered at the earliest
opportunity and in good grace apology is
of penitence. If apology is offered at a
time when the contemnor finds that the
Court is going to impose punishment, it
ceases to be an apology and it becomes an
act of a cringing coward.

15. In (1995) 4 SCC 1 (T.M.A. Pai
Foundation & Ors. Vs. State of
Karnataka & Ors.), the Supreme Court
rejected the unconditional apology as
tendered by the five officers and held
such persons guilty of contempt of Court
and a copy of order was made part of the
Annual Confidential Reports/Record of
service of each of the officers.

16. Possibly, the learned Senior
Counsel has referred the aforesaid cases
to establish that there is no mistake on the
part of the learned Single Judge in passing
the impugned order to come to an
appropriate conclusion.

17. We are of the view that power to
pass an order by the Court of Contempt is
discretionary power which can be passed
considering facts and circumstances of
each case. In this case admittedly
compliance is there but the complainant
has insisted for consequential benefit, to
which an undertaking has been given. In
case violation of such undertaking is
there, Court can consider the cause of
passing stringent order.

18.

Against
the
aforesaid
background,
the
learned
Additional
Advocate General and the learned Chief
Standing Counsel both have contended
before us that there is no willful
disobedience on the part of the either of
the
officers
(appellants).
They
are
innocent victim of the circumstances.
Whenever any order was passed, they
tried to comply, but when new Rules were
framed, they have no other alternative but
to proceed in accordance with the same.
They are the victims of the interpretation
of the order of the Court, which cannot be
treated to be willful disobedience on their
part. However, taking into account the
fact that the first appellant is going to
retire soon, possibly in this month, and
the second appellant has a long career and
he has only followed the direction of the
first appellant, we are of the view that for
the fitness of things, they can be
exonerated but they are cautioned under
this order to be more careful in future as
against the orders of the Court. However,
this order, which is passed directing them
to be more careful in future, is advisory in
nature and shall not be treated to be part
and parcel of their confidential remarks,
but they are warned that no leniency will
be shown in future.
442 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

19. The undertaking given before
this Court will be complied with within
two
months
from
the
date
of
communication of this order.

20. The appeal is disposed of with
the above directions and observations,
however, without passing any order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.05.2010

BEFORE
THE HON'BLE RAJES KUMAR, J.
THE HON'BLE BHARATI SAPRU, J.

Civil Misc. Writ Petition No. 673 of 2010

Vishwakant Gupta

 ...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
H.N. Singh
B.N. Singh

Counsel for the Respondents:
C.S.C.

U.P. Excise(Settlement of Licence for
Retail/Sale of Bear) Rules 2001-Rules-6Renewal of licence-petition was running
bear shop with his name exclusively for
the year 2009-10-new policy introduced
for
the
year
2010-11-also
provides
renewal-co-licencee
has
already
separated himself much prior to grant of
licence held-action of Distt. Magistrate
settlement of licence through lottery
illegal-existing licensee had right of
renewal.

Held: Para 8 & 9

We find substance in the argument of
learned counsel for the petitioner. Rule 6
of the Uttar Pradesh Excise (Settlement
of Licences for Retail Sale of Beer) Rules,
2001
contemplates
the
renewal
of
licence for such period, and on such
terms and conditions as decided by the
State
Government.
The
State
Government has introduced the Excise
policy for the year 2010-11 which
provides for the renewal of existing
license. Therefore, there is no dispute
that the existing licensees had a right of
renewal of their licences for the year
2010-11. The question for consideration
is that on the date when the Excise
policy for the year 2010-11 has been
introduced giving right to the existing
licensees to get their licence renewed,
who was the licensee. Admittedly, the
licence dated 29.9.2009 for the year
2009-10 was issued in the name of the
petitioner only. Sri Sanjay Kumar Gupta
was not shown as co-licensee in the
licence and, therefore, we are of the
view that the petitioner, being the
existing licensee, had a right of renewal
and his licence should be renewed for
the year 2010-11.

We are further of the view that the pleas
of Sri Sanjay Kumar Gupta had no
substance. By the letter dated 15.5.2009,
Sri Sanjay Kumar Gupta, stated that he
wants to withdraw from the shop.
Therefore, while issuing the licence it
appears that the application of Sri
Sanjay Kumar Gupta for withdrawing
himself
as
a
co-allottee
had
been
accepted.
It
is
not
the
case
of
respondent nos. 2 and 3 that the alleged
letter dated 4.8.2009 filed along with an
affidavit and the alleged letter dated
17.8.2009 had been confronted to the
petitioner at any stage during the
subsistence of the licence. It is not their
case that they acted upon such letters
and affidavits and taken any action. It is
also surprising that after filing the
aforesaid
letters
and
affidavits,
Sri
Sanjay Kumar Gupta kept mum for more
than seven months and woke up on
10.3.2010 when the time for renewal of
the licence had come. Admittedly, the
licence dated 29.9.2009 issued only in
the name of the petitioner has not been
suspended or cancelled till date. We