Om Parkash Vs. Vidhya Devi - Court Judgment

Excerpt:
- administrative law - government contract: [vijender jain, c.j., rajive bhalla & sury kant, jj] government contract rejection of highest bid challenge as to held, state has no dominus status to dictate unilateral terms and conditions when it enters into contract. its actions must be reasonable, fair and just in consonance with rule of law. as a necessary corollary thereto, state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. the state is free to enter into a contract just like any other individual and the contract shall not change its legal character merely because other party to contract is state. though no citizen possesses a legal right to compel state to enter into a contract, yet latter can neither pick and choose any person arbitrarily for entering into such agreement nor can it discriminate between persons similarly circumstanced. similarly, where breach of contract at hands of state violates fundamental rights of a citizen or its refusal to enter into a contract is contrary to statutory provisions or public duty, judicial review of such state action is inevitable. likewise, if state enters into a contract in consonance with article 299 rights of the parties shall be determined by terms of such contract irrespective of fact that one of the parties to it is a state or a statutory authority. for these precise reasons the equitable doctrine of promissory estoppel has been made applicable against the government, as against any other private individual, even in cases where no valid contract in terms of article 299 was entered into between the parties. hence, if government makes a representation or a promise and an individual alters his position by acting upon such promise, the government may be required to make good that promise and shall not be allowed to fall back upon the formal defect in the contract, though subject to well known limitations like larger public interest. the state, thus, has no dominus status to dictate unilateral terms and conditions when it enters into contract and its actions must be reasonable, fair and just and in consonance with rule of law. as a necessary corollary thereto state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. -- consumer protection act, 1986 [c.a. no. 68/1986]. articles 14 & 300a: government contract noon-acceptance of highest bid held, it does not result in taking away right to property of highest bidder highest bid, per se, unless it is accepted by competent authority, and consequential sale certificate is issued, does not grant the highest bidder right to property of type which is protected under article 300a right to property is limited to confer highest bidder the right to challenge action of appropriate authority in refusing to accept highest or other bids. [air 1984 p&h 282 (fb) explained] articles 14 & 226: government contract rejection of highest bid held, highest bidder has locus standi to maintain writ petition and assail action of state government or its authorities by contending that his bid has been turned down for arbitrary, illegal or perverse reasons however in such matters, heavy onus would like on petitioner bidder to establish his allegations as state action shall always be presumed to be in accordance with law - 4919-m of 1989. om parkash, husband or the father, as the case may be, failed to pay the amount of maintenance allowance to his wife and daughter which resulted in taking execution proceedings by vidya devi respondent against him. on 25-1-1990, om parkash, the husband failed to turn up before the court of the additional chief judicial magistrate, kurukshetra, despite service inferred from the refusal to accept service. aggrieved against this order, the husband-petitioner has invoked the inherent jurisdiction of this court under section 482 of the code of criminal procedure, contending that without exhausing coercive methods provided under section 421 of the code of criminal procedure like attachment of property etc. provided further that if such person offers to maintain his wife on condition of her living with him and she refused to live with him, such magistrate may consider any grounds of refusal stated by her, and may make order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. 5. before parting with the judgment, i am constrained to remark that om parkash petitioner appears to be a callous sort of person as he failed to pay even half of the maintenance allowance, as ordered by this court, to his wife and daughter.orderj.s. sekhon, j.1. in proceedings under section 125 of the code of criminal procedure, 1973, smt. vidya devi was awarded maintenance allowance at the rate of rs. 150/- per month for herself and rs. 100/ - per month for her minor daughter against her husband om parkash from the date of application, i.e., 9-5-1984. it is not disputed that the order of the judicial magistrate has become final as the revision petition filed against it has since been dismissed by the additional sessions judge and petition under section 482 of the code was also dismissed by the high court in cr. misc. 4919-m of 1989. om parkash, husband or the father, as the case may be, failed to pay the amount of maintenance allowance to his wife and daughter which resulted in taking execution proceedings by vidya devi respondent against him. on 25-1-1990, om parkash, the husband failed to turn up before the court of the additional chief judicial magistrate, kurukshetra, despite service inferred from the refusal to accept service. the trial cour under these circumstances, ordered the arrest of om parkash, and issued conditiona warrants of arrest for 16-2-1990 stating that if he pays rs. 15,500/- as arrears of maintenance allowance he shall not be arrested. aggrieved against this order, the husband-petitioner has invoked the inherent jurisdiction of this court under section 482 of the code of criminal procedure, contending that without exhausing coercive methods provided under section 421 of the code of criminal procedure like attachment of property etc. etc., the arrest of the petitioner could not be ordered.2. i have heard the learned counsel for the parties besides perusing the record.3. the provisions of sub-section (3) of section 125 of the code read as under:--(3) if any person so ordered fails without sufficient cause to comply with the order, any such magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made;provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due.provided further that if such person offers to maintain his wife on condition of her living with him and she refused to live with him, such magistrate may consider any grounds of refusal stated by her, and may make order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.explanation : if a husband has contracted marriage with another woman or keeps a mistress it shall be considered to be just ground for the wife's refusal to live with him.a bare glance through the same leaves no doubt that if any person fails to comply with the order of the magistrate to pay maintenance allowance without sufficient cause, such magistrate may issue warrant for levying the amount due in the manner provided for levying fines and may sentence such person for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.4. the procedure for levying fine is contained in section 421 of the code of criminal procedure which reads as under:--421. warrant for levy of fine.(1) when an offender has been sentenced to pay a fine, the court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may--(a) issue a warrant for the levy of the amount by attachment and sale of movable property belonging to the offender.(b) issue a warrant to the collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter.provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue such warrant unless, for special reasons to be recorded in writing it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357.(2) the state government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.(3) where the court issues a warrant to the collector under clause (b) of sub-section (1), the collector shall realise the amount in, accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law;provided that no such warrant shall be executed by the arrest or detention in prison of the offender.'the perusal of the above-quoted section 421 reveals that there are two methods for levying fine and the court has been empowered to opt for either of these two modes or both at one and the same time. one of these modes provided under sub-section (1) (a) is to issue a warrant for levy of the amount by attachment and sale of movable property belonging to the offender and the other being issuance of a warrant to the collector authorising him to realise the amount as arrears of land revenue from the movable property, or both. in the case in hand, the trial court had not resorted to any of these coercive measures for the recovery of the arrears of maintenance allowance although it is mentioned in the impugned order of the trial court that the husband is a man of means. thus, legally the impugned order of the trial court being not sustainable calls for quashment.5. before parting with the judgment, i am constrained to remark that om parkash petitioner appears to be a callous sort of person as he failed to pay even half of the maintenance allowance, as ordered by this court, to his wife and daughter. although he deserves no sympathy yet all the same in view of the legal position, there is no option but to accept this petition and quash the impugned order of the trial court. the petitioner is directed to appear before the trial court on 26-4-1991 and furnish details of the movable and immovable property owned by him to the trial court.6. the trial court is directed to dispose of the execution petition expeditiously preferably within six months.

Judgment:
ORDER

J.S. Sekhon, J.

1. In proceedings under Section 125 of the Code of Criminal Procedure, 1973, Smt. Vidya Devi was awarded maintenance allowance at the rate of Rs. 150/- per month for herself and Rs. 100/ - per month for her minor daughter against her husband Om Parkash from the date of application, i.e., 9-5-1984. It is not disputed that the order of the Judicial Magistrate has become final as the revision petition filed against it has since been dismissed by the Additional Sessions Judge and petition under Section 482 of the Code was also dismissed by the High Court in Cr. Misc. 4919-M of 1989. Om Parkash, husband or the father, as the case may be, failed to pay the amount of maintenance allowance to his wife and daughter which resulted in taking execution proceedings by Vidya Devi respondent against him. On 25-1-1990, Om Parkash, the husband failed to turn up before the Court of the Additional Chief Judicial Magistrate, Kurukshetra, despite service inferred from the refusal to accept service. The trial Cour under these circumstances, ordered the arrest of Om Parkash, and issued conditiona warrants of arrest for 16-2-1990 stating that if he pays Rs. 15,500/- as arrears of maintenance allowance he shall not be arrested. Aggrieved against this order, the husband-petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, contending that without exhausing coercive methods provided under Section 421 of the Code of Criminal Procedure like attachment of property etc. etc., the arrest of the petitioner could not be ordered.

2. I have heard the learned counsel for the parties besides perusing the record.

3. The provisions of Sub-section (3) of Section 125 of the Code read as under:--

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made;

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.

Provided further that if such person offers to maintain his wife on condition of her living with him and she refused to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation : If a husband has contracted marriage with another woman or keeps a mistress it shall be considered to be just ground for the wife's refusal to live with him.

A bare glance through the same leaves no doubt that if any person fails to comply with the order of the Magistrate to pay maintenance allowance without sufficient cause, such Magistrate may issue warrant for levying the amount due in the manner provided for levying fines and may sentence such person for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.

4. The procedure for levying fine is contained in Section 421 of the Code of Criminal Procedure which reads as under:--

421. Warrant for levy of fine.

(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may--

(a) issue a warrant for the levy of the amount by attachment and sale of movable property belonging to the offender.

(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter.

Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357.

(2) The State Government may make rules regulating the manner in which warrants under Clause (a) of Sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the Offender in respect of any property attached in execution of such warrant.

(3) Where the Court issues a warrant to the Collector under Clause (b) of Sub-section (1), the Collector shall realise the amount in, accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law;

Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.'

The perusal of the above-quoted Section 421 reveals that there are two methods for levying fine and the Court has been empowered to opt for either of these two modes or both at one and the same time. One of these modes provided under Sub-section (1) (a) is to issue a warrant for levy of the amount by attachment and sale of movable property belonging to the offender and the other being issuance of a warrant to the Collector authorising him to realise the amount as arrears of land revenue from the movable property, or both. In the case in hand, the trial Court had not resorted to any of these coercive measures for the recovery of the arrears of maintenance allowance although it is mentioned in the impugned order of the trial Court that the husband is a man of means. Thus, legally the impugned order of the trial Court being not sustainable calls for quashment.

5. Before parting with the judgment, I am constrained to remark that Om Parkash petitioner appears to be a callous sort of person as he failed to pay even half of the maintenance allowance, as ordered by this Court, to his wife and daughter. Although he deserves no sympathy yet all the same in view of the legal position, there is no option but to accept this petition and quash the impugned order of the trial Court. The petitioner is directed to appear before the trial Court on 26-4-1991 and furnish details of the movable and immovable property owned by him to the trial Court.

6. The trial Court is directed to dispose of the execution petition expeditiously preferably within six months.