Full Judgment
1 ORDER
SHEET IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE W.P. 562 of 2014 Sanjay Shree Corporation & ors. Versus Chief Postmaster General & ors. Before : The Hon’ble Justice Dipankar Datta Date : August 1, 2014 Mr. S. K. Mal, Advocate Mr. R. L. Mitra, Advocate … for the petitioners Mr. Amaresh Bag, Advocate … for U.O.I. Mr. Abhijit Chatterjee, Sr. Advocate as Amicus Curiae 1. Feeling aggrieved by arbitrary fixation of monthly rent for the portion of premises No.11B, Kalakar Street, Kolkata - 700007 under occupation of the Post and Telegraph Department, Government of India, the petitioning company along with others had the occasion to invoke the writ jurisdiction of this Court by filing a writ petition, (numbered as W.P. No.240 of 2010). It was disposed of on July 30, 2010 by me. The operative part of the order reads as follows: “In the result, the impugned decision as communicated by letter dated 6.8.2008 (Annexure - P8) stands set aside. The official respondents are granted one further opportunity. The revised rent payable to the petitioners from 21.3.2002 shall be fixed by the Hiring Committee positively within twelve weeks from date of receipt of a copy of this order. The petitioners shall not be advised to produce site plan or land cost certificate or any other document except evidence relating to current market rate of rentable/leasehold premises under occupation of commercial tenants/lessees in the locale where the said premises is situate. If any valuation of the property is required to be obtained, the official respondents may appoint any surveyor or valuer from the panel maintained by this Court and none else. Copy of his report shall be made available to the petitioners. Evidence produced by the petitioners shall also be given due consideration. The current market rate as obtained by the official respondents and allegedly considered by the Hiring Committee earlier or if any new rate is ascertained shall be made available to the petitioners within three weeks from date of receipt of a copy of this order. The petitioners shall be heard before any final decision is taken. No document shall be looked into by the Hiring Committee unless the petitioners have been given a copy thereof or at least reasonable opportunity of taking notes therefrom. An appropriate reasoned decision shall be taken and conveyed to the petitioners within the time frame fixed above. The writ petition stands allowed with costs assessed at Rs. 5,100/- to be payable to the petitioners by the official respondents within a month from date.”
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2. Copy of the judgment and order dated July 30, 2010 had been served on the respondents by the petitioners vide their letter dated August 24, 2010. No step, however, was taken to comply with the said order. The petitioners did not apply under the Contempt of Courts Act, 1971 and by efflux of time nearly four years passed. Ultimately, on June 19, 2014 this writ petition was presented seeking, inter alia, the following relief: “a) A writ of and/or in the nature of Certiorari do issue calling upon the respondents and each of them to certify and transmit to this Hon’ble Court the records of the case resulting in purported enhancement/revision of rent in respect of the portion situate on the first floor of premises No.11, Kalakar Street, Kolkata - 700007 as communicated by the respondent No.3 by its office Memo No.D-160/Ch-VIII dated August 6, 2008 so that conscionable justice may be rendered to the petitioners by setting aside the purported revision of rent and passing necessary order for enhancement of rent on and from March 21, 2002; b) A Writ of and/or in the nature of Mandamus do issue commanding the respondents and each of them to desist from disclosing full particulars relating to revision of rent in respect of portions situated on the first floor of premises No.11, Kalakar Street, Kolkata - 700007; c) A writ of and/or in the nature of Mandamus do issue commanding the respondents and each of them to forthwith enhance/revise the rent in respect of the portion situate on the first floor of premises No.11, Kalakar Street, Kolkata - 700007 in accordance with the market rate and/or office memo dated August 22, 1984 being Annexure P1 to the petition on and from March 21, 2002,”.
3. In paragraph 37 of the writ petition, the petitioners have set out the prayers that they made in W. P. No.240 of 2010. The same read as under: “a) A Writ of and/or in the nature of certiorari do issue calling upon the respondents and each of them to certify and transmit to this Hon’ble Court the records of the case resulting in purported enhancement/revision of rent in respect of the portion situate on the first floor of premises No.11, Kalakar Street, Kolkata - 700007 as communicated by the respondent No.3 by its office Memo No.D-160/Ch-VIII dated August 6, 2008 so that conscionable justice may be rendered to the petitioners by setting aside the purported revision of rent and passing necessary order for enhancement of rent on and from March 21, 2002; b) A Writ of and/or in the nature of Mandamus do issue commanding the respondents and each of them to desist from disclosing full particulars relating to revision of rent in respect of portions situated on the first floor of premises No.11, Kalakar Street, Kolkata - 700007; c) A Writ of and/or in the nature of Mandamus do issue commanding the respondents and each of them to forthwith enhance/revise the rent in respect of the portion situate on the first floor of premises No.11, Kalakar Street, Kolkata - 700007 in accordance with the market rate and/or office memo dated August 22, 1984 being Annexure P1 to the petition on and from March 21, 2002,”.
4. Mr. Mal, learned advocate appearing for the petitioners submitted that the judgment and order dated July 30, 2010 passed in the earlier round of litigation between the parties had attained finality, since no appeal had been preferred thereagainst by the respondents and they are bound to comply with the directions contained therein. It was further urged that non-entertainment of this writ petition would result in the majesty, dignity and prestige of the Court being undermined and to prevent miscarriage of justice, the respondents should be directed to immediately comply therewith. He also contended that this writ petition, in effect, is one for implementation of the order dated July 30, 2010, and in support of his contention that a writ petition would be maintainable for the purpose of seeking implementation of an order passed by the High Court on a previous writ petition between the same parties, he relied on the decisions reported in: a) 2003 (1) CHN154 Bibekananda Mondal v. State of West Bengal; b) 2003 (4) CHN148 Indrapuri Studio v. West Bengal State Warehousing Corporation & ors.; c) 2010 (2) CHN (CAL) 194: Biswambhar Basu v. State of West Bengal & ors.; and d) 2011 (3) CLJ (CAL) 72: Sri Dhiren Soren v. The State of West Bengal & ors. An unreported decision of a learned Judge of this Court dated April 12, 2011 on W.P. 1698(W) of 2011 : Animesh Dutta Gupta v. State of West Bengal & ors., was also relied upon by him.
5. I doubted as to whether a second writ petition for implementation of an order passed in an earlier round of litigation between the same parties in regard to the self-same cause of action would be maintainable or not. To clear such doubt, I had requested Mr. Abhijit Chatterjee, learned senior advocate to assist the Court as amicus curiae. Elaborate submissions have been made by Mr. Chatterjee and I record my sincere appreciation for the able assistance rendered by him.
6. At the outset, Mr. Chatterjee submitted that a distinction has to be drawn in regard to causes of action arising out of (i) an act which is not in strict conformity with an earlier order passed by the Court, meaning thereby an act which could be branded as an act in violation of a Court’s order and (ii) total inaction in complying with the order, meaning thereby something in complete disobedience to an order of the Court. According to him, having regard to the decision of the Supreme Court reported in 1996 (6) SCC291: J.
S. Parihar v. Ganpath Duggar, a contempt petition would not lie if an act has been performed or an order has been passed not strictly in conformity with an order of which contempt is alleged. In such case, the Supreme Court has clearly ruled that the act or the order, as the case may be, although may not be in strict conformity with the order alleged to be violated would afford the aggrieved person a fresh cause of action to move the Court for judicial review. Reference has been made to another decision of the Supreme Court reported in (2007) 1 SCC457: State of Haryana v. M.P. Mohla, where it has been ruled that if a subsequent cause of action arises in the matter of implementation of a judgment, a fresh writ petition may be filed since a fresh cause of action arises. It is in such cases only where an act/order is challenged on the ground that it is not in conformity with the earlier order that a second writ petition would be maintainable for effectively securing the same relief that had been claimed in the first round of litigation. Insofar as the second category of cases, Mr. Chatterjee submitted that the Court may have to consider whether the decisions cited by Mr. Mal lay down correct law and whether the Court would follow the same or not.
7. Referring to the decision in Bibekananda Mondal (supra), Mr. Chatterjee placed paragraph 6 (six) thereof where the law was laid down in the following words: “It is, therefore, settled law that the second writ application is maintainable for implementation of an earlier order of the writ court. This court must issue proper directions for proper implementation of previous directions. Where there has been an order, the order must be complied with. An act done in wilful disobedience of a court order is not only contempt, but, also, an illegal and invalid act. The language used in Article 226 of the Constitution of India is couched in comprehensive phraseology and the said article recognises a very wide power on the High Courts to remedy injustice wherever it is found.”
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8. Mr. Chatterjee then pointed out that the learned Judge had proceeded to lay down the law on consideration of the Division Bench decision of the Patna High Court reported in AIR1983 Patna 8: Nawal Kishore Prasad Sinha & ors. v. State of Bihar & ors. The Division Bench was considering a situation where a meeting had been held after a stay order was passed on a writ petition and the question that arose in the subsequent writ petition that was filed challenging the resolution adopted in such meeting was whether the meeting itself was non-est or not, being in violation of the stay order. It was his contention that this writ petition fell in the first category of cases referred to by him i.e. an act/order in violation of a Court’s order, whereas the directions for reinstating Bibekananda Mondal in service and releasing arrears of salaries in his favour contained in the order dated November 2, 1987 making the rule absolute not having been complied with at all, this case fell in the second category. With all the humility at his command, Mr. Chatterjee submitted that the Court may consider whether the law that was laid down in a case of violation of a Court’s order could be applied in case of complete disobedience to the Court’s order.
9. Mr. Chatterjee next submitted, referring to the decision in Indrapuri Studio (supra), that the learned Judge simply followed the decision in Bibekananda Mondal (supra) and the decision reported in AIR 1983 SC1134: Devaki Nandan Prasad v. State of Bihar without assigning other or further reason for entertainment of a second writ petition seeking implementation of the order passed in an earlier writ petition on the self-same cause of action.
10. Insofar as the decision in Biswambhar Basu (supra) is concerned, it was submitted that the petitioner argued relying on the decision in J.
S. Parihar (supra) that a second writ petition would be maintainable. Accepting the contention, the learned Judge held that non-supply of the report directed to be furnished by the Court while disposing of the earlier writ petition constituted a fresh cause of action and hence, the earlier writ petition as well as the present one could not be treated as successive writ petitions for the same relief.
11. Dealing with the decision in Sri Dhiren Soren (supra), Mr. Chatterjee submitted that the learned Judge followed the decision in Bibekananda Mondal (supra) as well as Nawal Kishore Prasad Sinha (supra) together with two other decisions of the Supreme Court. Paragraphs 18 and 19 of the decision were placed, reading as follows:
“18. The support can also be made from a judgment of the Supreme Court in case of Commissioner, Karnataka Housing Board v. C. Muddaiah, reported in 2007 (7) SCC689where the Apex Court observed as follows:‘32. We are of the considered opinion that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.’ 19. The order passed in a proceeding against the parties thereto are binding on the parties if any of them is aggrieved by such order the remedy is to challenge the said order in appeal. If a party who has suffered from an order did not file an appeal or filed an appeal which suffers dismissal, is bound by the said order. Even in case where an appeal is filed belatedly along with an application for condonation of delay and such an application for condonation is dismissed, the order attains finality as the dismissal of an application under as Section 5 in filing an appeal amounts to a dismissal of an appeal itself (see: Shyamsundar Sarma v. Pannalal Jaiswal, reported in 2005 (1) SCC436”.
12. My attention was also drawn to the decision in C. Muddaiah (supra) and it was submitted that there a writ petition filed by the employee, challenging a seniority list, had succeeded before the learned single Judge who directed reassignment of his seniority and payment of consequential benefits. The said order was unsuccessfully challenged by the employer before the Division Bench and the Supreme Court. Despite failing to have the order of the learned single Judge reversed, the employer did not pay arrears of salary to the employee. Contempt petitions were filed by the employee, which unfortunately stood dismissed by the Division Bench on the ground that the order of the Court had been complied with. A second writ petition was then filed by the employee seeking the arrears, which he contended he was entitled to claim in view of the order of the learned Judge on the first writ petition. A point was taken by the employer that since the contempt petitions were dismissed holding that the order had been complied with, the writ petition was not maintainable. The learned single Judge accepted the version of the employer and dismissed the writ petition. In appeal, the Division Bench set aside the order impugned and directed payment of arrears. The Supreme Court was approached and ultimately, the order of the Division Bench was upheld and the civil appeal dismissed. Mr. Chatterjee submitted that it is in such facts and circumstances that the observations made in paragraph 32 of the decision require consideration. According to him, the decision in C. Muddaiah (supra) is not an authority for the proposition of law that a second writ petition would be maintainable for seeking enforcement of an order passed by the writ Court on the earlier occasion where the respondents despite being bound by it choose to remain inactive and disregard the same totally.
13. In this context, Mr. Chatterjee also drew my attention to the decision in Devaki Nandan Prasad (supra). There, a second writ petition under Article 32 was entertained by the Court much for the same relief, which was claimed and granted in an earlier Article 32 petition between the same parties. According to him, the Court considered the apathy of the State in paying the employee his pension treating an earlier Mandamus as a scrap of paper and even disobeying the order of the Chief Minister of the State, and the extent of harassment that the employee was subjected to over 12 (twelve) years since the initial order. It was, however, submitted that there being no argument on the point of maintainability of the second writ petition under Article 32 any discussion on such point is conspicuous by its absence and, thus, no principle of law can be traced that is binding under Article 141 of the Constitution.
14. Dealing with the decision in Animesh Dutta Gupta (supra), Mr. Chatterjee submitted that the learned Judge did not decide the point although it was raised and proceeded to decide the maintainability issue in favour of the respondents in the writ petition on a separate point.
15. Mr. Chatterjee next drew my attention to the decision of a learned Judge of this Court reported in AIR 2004 CAL254 Bonbehari Roy & ors. v. Kolkata Metropolitan Development Authority, and it was submitted that the learned Judge had held an execution application to be maintainable at the instance of the party in whose favour directions have been issued by the Court on an earlier writ petition but not complied with by the respondents.
16. Although the writ rules do not specifically provide for filing of an application after execution, Mr. Chatterjee submitted that having regard to Rule 53 of the Writ Rules read with the Civil Procedure Code, filing of an application for execution may not be completely barred. He submitted that in fact the Supreme Court in its decision reported in AIR 2002 SC808: Food Corporation of India v. S. N. Nagarkar, upheld an order dated April 30, 1999 passed by the High Court of Punjab and Haryana on an application seeking execution of an order dated May 6, 1994 passed in exercise of jurisdiction under Article 226 of the Constitution.
17. An unreported Division Bench decision of the Allahabad High Court in Civil Misc. Writ Petition No.19692 of 2003 (Ved Prakash Katiyar v. Member Secretary & anr.), was placed by Mr. Chatterjee, wherein Hon’ble Dr. B. S. Chauhan, J.
(as His Lordship then was), speaking for the Division Bench held as follows: “As is evident from the facts of this case that the petitioner had already filed two successive writ petitions for the same relief and in second petition, certain direction was issued. Petitioner’s grievance is that the said direction has not been complied with. In the instant case, even if this Court issues the direction in exercise of its power under writ jurisdiction, what is the guarantee that the respondents would ensure the compliance of it and in that case, also, the petitioner would have no option but either to file another writ petition or to file a contempt petition. Thus, we are of the considered opinion that the writ petition cannot be the appropriate and effective remedy in this case. The Legislature, in its wisdom, has created a special forum for it and the petitioner ought to have resorted to it within limitation under the provisions of the Contempt of Courts Act and if it had expired under the provisions of Article 215 of the Constitution of India within reasonable period thereafter.”
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18. The observations made in the passage extracted supra were echoed by Mr. Chatterjee while concluding his submission. According to him, successive writ petitions may not be maintainable for enforcement of an order passed by the writ Court on an earlier occasion and such result could be achieved only by initiating action under the Conte