IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
COPC No.587 of 2014 Reserved on: 12.5.2015 .
Decided on: 28.5.2015 [ENTITY].
Petitioner.
Versus [ENTITY] and others. Respondents. Coram:
Hon'ble Mr. Justice [ENTITY], Judge. Hon'ble Mr. Justice [ENTITY], Judge.
Whether approved for reporting? 1 Yes For the Petitioner: Ms. [ENTITY], Advocate.
For the Respondents: Mr. [ENTITY], Addl. Solicitor General of India with Mr. [ENTITY], Assistant Solicitor General of India and Mr. [ENTITY], Advocate for respondent No.1.
Mr. [ENTITY], Sr. Advocate with Mr. [ENTITY], Advocate for respondents No.2 and Mr. [ENTITY], Advocate for respondent No.4.
Per Justice [ENTITY], Judge.
Petitioner had filed [CASE NUMBER] in this Court. Case of the petitioner, precisely, was that retail outlets were being opened indiscriminately without any Whether reporters of the local papers may be allowed to see the judgment?
regard to distance, volume and growth potential. On 5.7.2010, the following order was passed by this Court:
"Notice. Short reply within a month. Post on 16.8.2010. Any .
steps in the matter of opening of new petrol pumps in the meanwhile will subject to the result of the writ petition and it shall be made so clear in the proceedings."
2. On 21.9.2011, the Court passed the following order:
"Respondents seek two weeks' time to file reply. Post on 19.10.2011. In the meanwhile, no letter of intent shall be issued without obtaining the orders from the Court."
3. [CASE NUMBER] was allowed by this Court on 17.5.2012. Respondents preferred [CASE NUMBER] against the judgment dated 17.5.2012. [CASE NUMBER] was dismissed as withdrawn on 18.3.2014 and [CASE NUMBER] was dismissed as withdrawn on 5.3.2014.
4. The Government of India has issued letter dated 17.2.2014 whereby new guidelines were framed for selection of retail outlet (RO) dealership for setting up of new ROs. These guidelines came into force with effect from the date of issuance of letter, i.e. 17.2.2014.
Thereafter, Indian Oil has framed PSU Oil Marketing Company's Manual for selection of dealers for regular and rural retail outlets. It is at page 85 of the paper book.
5. Mr. [ENTITY], learned Additional Solicitor .
General of India, has drawn the attention of the Court to clause 'D' of this manual. It reads as under:
"D. Existing Roster of earlier SRMPs and advertisement of Back Log locations-
The existing Roster of old SRMPs made under the earlier guidelines has been frozen and closed in July 2012.
The locations already advertised and which are at various stages of commissioning will be governed as per their advertisement conditions."
6. Ms. [ENTITY], learned counsel for the petitioner, has vehemently argued that direction issued by this Court in [CASE NUMBER] have not been followed in letter and spirit. According to her, the process for opening new outlets even though advertised prior to judgment dated 17.5.2012 was to be regulated under the new norms. In other words, her submission is that the cut-off date laid down in letter dated 17.2.2014 and PSU Oil Marketing Company's Manual for selection of dealers for regular and rural retail outlets vide clause 'D's is not in conformity with the judgment rendered by this Court on 17.5.2012.
7. It is evident from the interim order dated 5.7.2010 that any steps for opening of new petrol pumps were subject to the result of the writ petition. The Court .
had specifically issued direction to the respondents not to issue any letter of intent without obtaining orders from the Court on 21.9.2011. These orders were issued to ensure that till the disposal of the petition, status quo is maintained qua those retail outlets for which advertisement had already been issued. Respondents have complied with the major portion of the directions issued on 17.5.2012 except that the location already advertised were ordered to be governed as per the old conditions. This is in contravention of the judgment passed by this Court on 17.5.2012, which was upheld in [CASE NUMBER].
8. Learned counsel appearing on behalf of the respondents have vehemently argued that there is no willful and deliberate disobedience of judgment dated 17.5.2012 rendered by this Court. Rather the judgment has been complied with. However, there is a bona fide mistake committed by the respondents while implementing the judgment dated 17.5.2012 by applying new guidelines prospectively, which has resulted into miscarriage of justice. The grievance of the petitioner, as noticed hereinabove, precisely was that new retail outlets .
were being opened pursuant to old advertisement without taking into consideration the feasibility report.
It is for this reason petitioner had come to this Court seeking direction to the respondents to frame guidelines.
It is reiterated that new guidelines issued as per letter dated 17.2.2014 for selection of retail outlet dealership for setting up of new retail outlets and clause 'D' of PSU Oil Marketing Company's Manual for selection of dealers for regular and rural retail outlets would relate back to the opening of those retail outlets, which had already been advertised.
9. Mr. [ENTITY], learned Addl. Solicitor General of India, has vehemently argued that this Court cannot issue directions once the judgment has already been announced on 17.5.2012. It is the duty of the Court as a policy to set the wrong right and not to allow the perpetuation of the wrong doing by permitting the respondents to enforce the guidelines prospectively. The judgment takes into consideration the facts existing on the date of filing of the petition and the subsequent developments as well upto the stage of delivering the judgment.
10. Their Lordships of the Hon'ble Supreme Court in [PRECEDENT] have held that imposition of punishment for contempt would not denude the Court of its power to issue directions to remedy the wrong done by the contemner including those so as not to enable the contemner to retain the benefit derived by the contempt and this power cannot be defeated on procedural or other technical objections. Their Lordships have held as under:
"17. The principle that a contemner ought not to be permitted to enjoy and/or keep the fruits of his contempt is well-settled. In [PRECEDENT], this Court held clearly that undergoing the punishment for contempt does not mean that the Court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its Orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one months' imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions in addition to punishing the petitioners for contempt of Court. The argument was rejected holding that "the Single Judge was quite right in giving appropriate directions to close the breach (of undertaking)".
19. To the same effect are the decisions of the Madras .
and Calcutta High Courts in [PRECEDENT] and [PRECEDENT]. In Century Flour Mills Limited, it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the Court, as a policy, to set the wrong right and not allow the perpetuation of the wrong- doing. The inherent power of the Court, it was held, is not only available in such a case, but it is bound to be exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.
21. There is no doubt that this salutary rule has to be applied and given effect to by this Court, if necessary, by overruling any procedural or other technical objections. [SECTION] is a constitutional power and when exercised in tandem with [SECTION], all such objections should give away.
The Court must ensure full justice between the parties before it."
11. Similarly, their Lordships of the Hon'ble Supreme Court in [PRECEDENT] have held that the Supreme Court has inherent power under to set the wrong right where there has been any disobedience and not to allow to perpetuate the wrongdoing. Their Lordships have held as under:
It is thus clear and apparent that despite the clear observations of this Court in paragraphs above of the present judgment that no issue raised in prior litigations can be raised again and no attempt to challenge the right and title in respect of the land in question could be made against the petitioners, namely, the respondents have once again sought to raise the same issues with a view to flout the directions of this Court and deprive the petitioners of the legitimate rights accruing to them from the judgment of this Court. The aforesaid attitude persists notwithstanding that the judgment of this Court has been passed in contempt proceedings and this Court has expressly observed that any further lapse shall be viewed extremely seriously.
17. We have already elaborately dealt with the history of the present litigation between the parties which shows that despite the petitioners having succeeded before this Court in 4 different hotly contested litigations vide judgments dated 14.11.2002, 03.12.2002, 05.12.2002 and 06.02.2003, the respondents have in one way or the other not complied with the judgment or not given the petitioners the development and building permissions required to construct on the lands in question.
19. During the pendency of the contempt petition and the IAs, a letter was written by the Revenue Department to the Collector, Bhavnagar to take steps as the Government has taken a decision to accept the judgment of this Court dated 15.10.2004 for the land admeasuring 17 acres 4 guntas and 0.32 guntas and 1 acre 14 guntas upon which sundervas bungalow is located. The Collector was directed to comply with the said direction. However, in order to nullify the aforesaid acceptance of the judgment in respect of the land mentioned above, permission for non-agricultural use has been given for the recreation use and not for the residential use thus depriving the petitioner of the right to construct residential houses. The action of the respondents and the Collector in issuing permission for non-agricultural use for the recreation use is with an oblique motive to deprive the petitioner of the right to construct residential houses as .
already ordered in our judgment dated 15.10.2004. We, therefore, direct the Revenue Department and the Collector, Bhavnagar to forthwith issue permission to the petitioner for residential use with a right to construct residential houses for the above survey Nos. as mentioned in the letter dated 10.01.2007 of the Revenue Department to the Collector, Bhavnagar.
24. Courts have held in a catena of decisions that where in violation of an order of this Court, something has been done in disobedience, it will be the duty of this Court as a policy to set the wrong right and not to allow the perpetuation of the wrong doing. In our opinion, the inherent power will not only be available under [SECTION] [ACT] as available to us in such a case but it is bound to be exercised in that manner in the interest of justice and public interest. All the respondents are senior and experienced officers and must be presumed to know that under the constitutional scheme of this country orders of this Court have to be punctually obeyed and should not be trifled with. We have already found hereinabove that they have acted deliberately to subvert the orders of this Court. We, therefore, hold them guilty of contempt of Court and do hereby censure severely their conduct. Though a copy of this order could be sent which shall form part of the annual confidential record of service of each of the said officers, we refrain from doing so by taking a lenient view of the matter considering the future prospects of the officers. As already stated, the officers shall not indulge in any adventurous act and strictly obey the orders passed by the Courts of law. We by this order grant four weeks time to the respondents to comply with all our directions given in the judgment dated 15.10.2004. The petitioner is at liberty to move this Court if the directions are not complied with in its letter and spirit."
12. Thus, in furtherance of implementation of judgment of this Court in [CASE NUMBER] dated .
17.5.2012 in letter and spirit, respondents are directed to consider the old cases, which were pending at the time of filing of the petition also, as per the new guidelines.
Accordingly, the petition is disposed of and the notice is discharged. No costs.
r to (Justice [ENTITY]), Judge. (Justice [ENTITY]), Judge. 28.5.2015 *awasthi*