Salkia
Businessmens Associaiton & Ors Vs. Howrah Municipal Corporation & Ors
[2001] Insc 378 (8
August 2001)
S.Rajendra
Babu & Doraiswamy Raju Raju, J.
Leave
granted.
The
simple as well as an important question arising in the appeal is as to what is
the efficacy of an order passed by the Court in terms of the memorandum of
compromise or an agreement, filed in a proceedings on the basis of which the
Court proceedings came to be finally disposed of.
Shorn
of all unnecessary details, it would suffice if a reference is made to the
order dated 13.2.1991 passed by a learned Single Judge of the Calcutta High
Court in Civil Order No.14861 (W) of 1990. The said proceedings came to be
initiated by the Appellant Association, the members of whom were carrying on
business as Traders and businessmen on the Grand Trunk Road (North) in and
around Salkia Chowrasta, apprehending displacement and demolition of the places
of their business for the construction of a fly-over, against Howrah Municipal
Corporation, Howrah Improvement Trust, their respective authorities as well as
the State. In the said proceedings, an application for settling the disputes
has been filed by the parties and the learned counsel appearing for the parties
also submitted that the Writ Petition be disposed of in terms of the said
application for settlement. The learned Judge, on noticing the above facts
ordered, Let there be an order that the Writ Petition is disposed in terms of
the settlement made by the parties. Xerox copy of the application for settlement
and the order passed today be given to the parties. Let the Writ Petition be
disposed of accordingly.
The
authorities, instead of abiding by the terms of the orders noticed supra, seem
to have indicated that spaces would be allotted to the members of the
Association by way of alternate accommodation and that the same be accepted by
them on ownership basis. It was also said that the alternative accommodation
would be provided at No.24, 25, Dol Gobinda Singha Lane, where only the Municipal Corporation has made provision
for giving alternate accommodation. Aggrieved, the appellants moved the High
Court by means of another Writ Petition Civil Order No.16348 (W) of 1996
seeking for directions to allot alternate accommodation in terms of the earlier
orders of Court, binding between parties and not to flout the same. It may be
noticed at this stage and as found adverted to by the learned Single Judge in
the present proceedings clause (viii) of the terms of compromise which became
part and parcel of the order of the Court, read thus:- (viii) The
respondents-Authorities shall see that the displaced persons will get
alternative permanent accommodation on G.T. Road between Khetra Mitra Lane and
Sri Ram Dhanga Road, excepting owners of petrol pump and factories, if any.
However, these persons will be rehabilitated appropriately by the
Rehabilitation Committee of the earliest in terms of paragraph 9 of this
settlement.
The
learned Single Judge, by his order dated 11.10.96, dismissed the Writ Petition,
in limine, as of no merits. The learned Judge seems to be of the view that the
obligations arising out of the terms of the earlier settlement are of the shape
of a contract between the parties by the joint petition and any purported
breach thereof being one of terms of the contract between parties, if at all,
cannot be fruitfully remedied legally by enforcing the terms of the contract
between parties but the remedy would lie to seek for compensation which remedy,
according to the learned Judge, cannot be available in writ jurisdiction.
The
learned Single Judge further proceeded to observe that the proposals said to
have been made by the authorities over which, the appellants felt aggrieved do
not purport to alter the place of alternate accommodations and the nature of
settlement relating to such accommodation. In his view, the basic purpose of
entering into such an agreement was to provide alternative accommodation to the
members of the petitioners, in view of the project and that the substantive
terms of such settlement being one relating to alternative accommodations, the
appellants cannot demand a particular area or a particular mode of such
alternative accommodation and consequently no violation of Article 14 or
grievance of arbitrariness could be made out.
Aggrieved,
the appellants pursued the matter before a Division Bench in F.M.A.T. No.3655
of 1996 and the Division Bench also by its order dated 16.3.2000, concurred
with the view of the learned Single Judge, by observing that the claims of the
appellants not only involved adjudication of disputed facts but greater public
interest call for rejection of the appellants claims. Hence, this appeal. Shri Bhaskar
P. Gupta, learned senior counsel for the appellants and Shri Tapas Ray, learned
senior counsel for the respondents, were heard.
The
learned counsel on either side invited our attention to relevant portions of
the earlier orders as also those passed in the present proceedings in support
of their respective stand.
We
have carefully considered the submissions of the learned senior counsel on
either side. The learned Single Judge as well as the Division Bench of the High
Court have not only over simplified the matter but seem to have gone on an
errand, carried away by some need to balance hypothetical public interest, when
the real and only question to be considered was as to whether the respondent-
authorities are bound by the orders passed by the court on the basis of the
compromise memorandum, and whether the proposed move on their part did not
constitute flagrant violation of the orders of court very much binding on both
parties. The High Court failed to do justice to its own orders. If courts are
not to honour and implement their own orders, and encourage party litigants be
they public authorities, to invent methods of their own to short circuit and
give a go-bye to the obligations and liabilities incurred by them under orders
of the court the rule of law will certainly become a casualty in the process a
costly consequence to be jealously averted by all and at any rate by the
highest Courts in States in the country. It does not, in our view, require any
extraordinary exercise to hold that the memorandum and terms of the compromise
in this case became part of the orders of the High Court itself when the
earlier writ petition was finally disposed of on 13.2.1991 in the terms noticed
supra notwithstanding that there was no verbatim reproduction of the same in
the order. The orders passed in this regard admits of no doubt or give any
scope for controversy. While so, it is beyond ones comprehension as to how it
could have been viewed as a matter of mere contract between parties and under
that pretext absolve itself of the responsibility to enforce it, except by
doing violence to the terms thereof in letter and spirit. As long as the
earlier order dated 13.2.91 stood, it was not permissible to go behind the same
to ascertain the substance of it or nature of compliance when the manner, mode
and place of compliance had already been stipulated with meticulous care and
detail in the order itself. The said decision was also not made to depend upon
any contingencies beyond the control of parties in the earlier proceedings.
The
Division Bench of the High Court equally fell into the same error and went, in
our view, aside and beside the real issue and point before them. The orders of
the High Court under challenge are set aside. The respondents are obliged and
as public-authorities are bound to comply with the orders dated 13.2.91,
particularly clause/paragraph (viii) of it, relating to the place or site of
allotment of alternative sites and other stipulations, in letter and spirit
giving the said order full effect. The appeal shall stand allowed, accordingly.
No
costs.
J.
[ S. Rajendra
Babu ] J.
[ Doraiswamy
Raju ] August 8, 2001.
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