COCP No. 2046 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH COCP No. 2046 of 2009 Date of decision:- 25.10.2010 Gram Panchayat ......Petitioner vs. Vikarm Singh ......Respondent CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA Present: - Mr. J.S. Bhandhohal, Advocate for the petitioner Mr. O.P.Goyal, Sr. Advocate with Mr. K.S. Chahal, Ms. Shilpa Sahi and Ms. Shivani Sharma, Advocates for respondent. HEMANT GUPTA, J (ORAL) Brief facts leading to the present contempt petition needs to be noticed. It was on 20.2.2008, vide Annexure R-12, the State Government sought to auction of minor minerals, Sand, gravel in various districts including Village Chandiala, Hadbast No. 24 in respect of area measuring 195.13 acres situated in District SAS, Nagar. In pursuance of such tender notice, respondent offered his bid of Rs. 100,000,00/- and was found to be the highest bidder. State Government conveyed acceptance of the highest bid of the respondent on 9.4.2008 vide Annexure R-16. The Gram Panchayat has purportedly passed a resolution on 16.4.2008, Annexure R-13. As per the Gram Panchayat, 20 acres of land COCP No. 2046 of 2009 -2- was lying vacant whereas some villagers were said to be in the illegal possession of the other land. In terms of the said resolution, the respondent has deposited an amount of Rs. 3,38,462/- vide receipt dated 16.4.2008 (Annexure R-17) and the similar amount vide receipt dated 6.8.2009 (Annexure R-18). Respondent filed a writ petition before this Court claiming reduction of auction money alleging fraud in the auction. The said writ petition was disposed of with the consent of the parties on 17.9.2009. The said order reads as under: - Learned counsel for the parties are ad idem that the dispute between the parties has been settled in the following terms: - 1. That contract of petitioner for quarry of village Chadiala of District Mohali for a period 9.4.2008 to 31.3.2010 shall be @ Rs. 70 lacs per annum in place of @ Rs. 100 lacs per annum for the area 195 bighas 13 biswa (40.760 acres) of the quarry and the contract will be governed by terms and conditions of auction notification and the Punjab Minor Mineral Concession Rules, 1964 shall be applicable. 2. That petitioners will clear the arrears of the due installments and TDS from 9.4.2008 i.e. the date of commencement of contract upto the date of passing of the orders and the amount will be deposited with G.M.-cum-Mining Officer, Mohali within a period of one month from the date of passing of the orders by this Court as per rules. 3. That petitioner will execute a mandatory contract agreement in form 'L' as per Punjab Minor Mineral Concession Rules, 1964 with Responding State within a period of one month from date COCP No. 2046 of 2009 -3- of passing the order by this Court. 4. The petitioner shall disburse the compensation amongst land owners in due observance to auction Notification dated 20.2.2008 and PMMC Rules, 1964. In view of the above, learned counsel for the petitioner submits that the writ petition has been rendered infructuous. Accordingly, the writ petition is dismissed as infructuous The Gram Panchayat has filed the present contempt petition as the respondent has not deposited the auction money in respect of the land measuring 40.760 acres @ Rs. 70.00 lacs per annum. The present contempt petition came up for hearing before this court on 7.9.2010, wherein the stand of the respondent was that the respondent has not handed over the complete area i.e. 40.760 acres and therefore, the respondent is not liable to pay licnece fee @ Rs. 70.00 lacs per annum. It was observed that in the order dated 17.9.2009, there is no reference that the possession of land measuring 40.760 acres has not been handed over to the respondent and that the respondent has undertaken to clear the arrears of licence fee with effect from 9.4.2008, therefore, non- deposit of licence fee @ Rs. 70.00 lacs per annum discloses that the respondent is prima facie guilty of contempt of court. On 9.9.2010, respondent sought time to seek his remedy in respect of order dated 17.9.2009 and also undertaken to deposit Rs. 40.00 lacs within a period of three weeks without prejudice to the rights of the respondent in any such proceedings. Subsequently, the Counsel representing the respondent has COCP No. 2046 of 2009 -4- been superseded. A detailed reply has been filed on behalf of respondent after the change of counsel inter alia taking the following plea: - 10. That from the perusal of the above facts it is clear that the deponent is liable to pay for 20 acres land for a period of 1-1/2 years. The total amount payable for 1-1/2 years for the total area 40.760 acres comes to Rs. 1,05,00,000/- payable to the Mining Department and 1/3rd of that i.e. Rs. 35,00,000/- is payable to the Gram Panchayat. But the land given for lifting the minor minerals given to the deponent is only 20 acres, therefore, the deponent is liable to pay for 20 acres of the land instead of 40.760 acres. Thus, it is clear that the deponent is liable to pay Rs. 52,50,000/- to the Mining Department and Rs. 17,50,000/- to the Gram Panchayat, whereas the deponent had paid Rs. 89,20,000/- to the Mining Department and Rs. 6,76,924/- to the Gram Panchayat. Therefore, the deponent has already paid Rs. 36,70,000/- excess to the Mining Department. So the remaining amount i.e. Rs. 10,73,076/- in favour of the Gram Panchayat-petitioner and the remaining amount of Rs. 26,41,924/- is liable to be refunded to the deponent. This is all a matter of calculation and accounts be settled mutually. 11. That the deponent is not liable to pay Rs. 40.00 lacs to either to the Mining Department or Gram Panchayat. The statement of counsel for the deponent to pay Rs. 40.00 lacs within three weeks as mentioned in order dated 9.9.2010 has been made without proper calculation and under factual mistake of facts. Therefore, the statement is liable to be withdrawn on factual mistake of facts. Today, learned counsel for respondent has vehemently argued that the order passed by this Court 17.9.2009 does not amount to any direction to the respondent to make the payment of the auction money and that the said consent before this Court was not an undertaking to the Court and therefore, the contempt proceedings against respondent are not maintainable on the basis of the order passed on 17.9.2009. Reliance is placed upon the judgment of the Supreme Court in AIR 1979 SC 1528, COCP No. 2046 of 2009 -5- Babu Ram Gupta Vs. Sudhir Bhasin and another. It is also contended that as per resolution of the Gram Panchayat dated 16.4.2008 (Annexure R-13) and Receipt dated 16.4.2008 (Annexure R-17), respondent was handed over the possession of the land measuring 20 acres only and therefore, the liability to pay auction money arises in respect of the said land alone and not in respect of 40.760 acres as mentioned in the order dated 17.9.2009 . It is contended that though the respondent has paid the excess amount to the Mining Department but respondent is ready and willing to make up the deficiencies of the amount payable to the Gram Panchayat and shall seek refund from the Mining Department in accordance with law. Therefore, the present contempt petition does not disclose any civil contempt having been committed by respondent. I have heard learned counsel for the parties at some length but do not find any merit in the stand of the respondent. This Court recorded the settlement between the parties after parties were ad idem in respect of the terms thereof. The terms of compromise was recorded in view of the fact that the auction notice wrongly described the land as 195 acres 13 marlas where as it was 195 bighas and 13 biswas. Since, there was a mistake in respect of area of land auctioned in favour of the respondent, the parties agreed for reduction of the license fee to Rs. 70.00 lacs per annum and in respect of the correct area i.e. 40.760 acres. Respondent has undertaken to clear the arrears of due installments from 9.4.2008 i.e. the date of commencement of the contract upto the date of passing of the order. COCP No. 2046 of 2009 -6- Respondent has undertaken to deposit amount of arrears within a period of one month from the date of passing of the order by this Court. The question whether the consent of the parties, on the basis of which this Court has disposed of the writ petition, amounts to undertaking to the Court or not is not res integra. The judgment in Babu Ram Gupta's case (supra) relied upon by learned counsel for the respondent has been dealt with by a Larger Bench judgment reported as (2006) 11 SCC 114, Rama Narang vs. Ramesh Narang and another. It has been held that said judgment is on peculiar facts. It has been held that it would neither be inconsonance with the statute, judicial authority, principle or logic to draw any distinction between the willful violation of the terms of the consent decree and willful violation of decree which is based on adjudication. The Court held to the following effect : - 23. The question which was before the Court in Babu Ram Gupta case (supra) was limited to the issue whether the appellant had given any undertaking to the Court, either expressly or impliedly, which he had violated. In other words it was limited to the second category of cases mentioned under Section 2(b) of the Act. The Court was not called upon to decide whether there was any contumacious conduct as envisaged by the first category of cases under that section. The observations made in that regard, are strictly speaking, obiter. The Court was not called upon to consider nor did it construe the language of Section 2(b) of the Act. If we were to accept the observations or the Court as an enunciation of the law, it would run contrary to the express language of the statue. As we have earlier noted, the section itself provides that willful violation of any order or decree, etc., would tantamount to contempt. A compromise decree is as much as decree as a decree passed on adjudication. It is not as has been wrongly held by the Calcutta High Court in Nisha Kanto Roy Chowdhury merely an COCP No. 2046 of 2009 -7- agreement between the parties. In passing the decree by consent, the court adds its mandate to the consent. A consent decree is composed of both a command and a contract. The Bombay High Court's view in Bajranglal Gangadhar Khemka correctly represents the law that a consent decree is a contract with the imprimatur of the Court. “Imprimatur” means “authorized” or “approved”. In other words by passing a decree in terms of a consent order the court authorises and approves the course of action consented to. Moreover, the provisions of Order 23 Rule 3 of the Code of Civil Procedure require the Court to pass a decree in accordance with the consent terms only when it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement. 25. In such circumstances, it would neither be in consonance with the statue, judicial authority, principle or logic to draw any distinction between the willful violation of the terms of a consent decree and willful violation of a decree which is passed on adjudication. The decision in Babu Ram Gupta case must, therefore, be limited to its own peculiar facts. In the present case, the parties modified the terms of lease before this Court. When the respondent has stated that he will clear the arrears of due installments from 9.4.2008, it is nothing but a solemn assurance given to this Court in respect of payment of lease money. The said solemn assurance is an undertaking to the Court. Therefore, the reliance of the learned counsel for the respondent in Babu Ram Gupta's case (supra) is not tenable in view of the judgment in Ram Narang's case (supra). The other argument raised by learned counsel for respondent is that possession of only 20 acres of land was given to the respondent and respondent is ready and willing to deposit the share of Gram Panchayat to the aforesaid extent is again not tenable. The resolution and the receipt COCP No. 2046 of 2009 -8- relied upon by respondent are dated 16.4.2008. Thereafter the parties have entered into the settlement on 17.9.2009 before this Court wherein 40.760 acres was said to be the land in respect of which the respondent was granted mining lease. Respondent has not raised any issue before this Court at the time of passing of order dated 17.9.2009 that the possession of only 20 acres of land is with the respondent. In fact, respondent has agreed to clear the arrears of licence fee from 9.4.2008 in respect of land measuring 40.760 acres. Therefore, to contend that possession of only 20 acres of land is with the respondent in respect of which he has a right to mine is not tenable. In view of the above, I do not find any merit in the stand raised by respondent in respect of either the area of mining or in respect of undertaking given to the Court. Faced with the said facts, learned counsel for respondent raised another argument that there is bona fide dispute in respect of interpretation of the compromise and therefore, such bona fide dispute cannot be said to be willful disobedience to the orders passed by this Court. Again, I do not find any merit in the stand of the respondent. Though the Gram Panchayat has passed a resolution on 16.4.2008 to the effect that only 20 acres of land is vacant but the respondent-defendants agreed to clear the arrears of installments since 9.4.2008 in respect of land measuring 40.760 acres. It is apparent that respondent accepted that the land measuring 40.760 acres is available for mining. All disputes regarding the extent of land and the terms of lease stand settled when the parties entered into the revised terms on 17.9.2009 before this Court. Therefore, it is not a case of any bona fide COCP No. 2046 of 2009 -9- dispute in respect of interpretation of the terms of compromise. Learned counsel for the respondent has referred to an affidavit dated 8.3.2010 filed by Shri Surinder Singh, Mining Officer in COCP No.1631 of 2009 that the Hon'ble Chief Minister ordered at the spot on 23.08.2009 to stop the extraction of the sand in respect of payment of compensation by the contractor of Chandiala quarry to Gram Panchayat. The police authorities have stopped the extraction work of sand being carried out by contractor on 24.08.2009. Learned counsel for the respondent has further submitted that respondent tenders unqualified apology as he has no intention of violating any direction of this Court and it was only on account of interpretation of the order that he has not complied with the directions. I do not find that the apology tendered by the respondent at this stage has any merit. It cannot be said to be bona fide. Respondent sought to raise dispute in respect of area of mining even though such dispute was settled by this Court on 17.09.2009. Respondent was found prima facie guilty of contempt on 07.09.2010. The said respondent has sought time to deposit the amount of Rs.40 lacs on 09.09.2010 but instead of complying with the statement given to this Court on 09.09.2010, the respondent came out with the plea of disputing the area of mining, by change of counsel, though such argument has not found favour earlier on 07.09.2009. In view of the above, respondent has not only violated the order of this Court passed on 17.09.2010 but also before the contempt court on 09.09.2010. In view of the above, I do not find any merit in the stand of the respondent. COCP No. 2046 of 2009 -10- The respondent is given opportunity to purge the present contempt by depositing the licence fee in respect of area measuring 40.760 acres to the Mining Department and to the Gram Panchayat within a period of three weeks from today, failing which respondent shall undergo simple imprisonment for a period of 4 months and a fine of Rs.2000/-. In the event of non-deposit of fine, he shall undergo further imprisonment of one month. At this stage, the learned counsel for the respondent prays for suspension of the order. Since the respondent has been granted three weeks time to deposit the licence fee, the sentence of imprisonment and fine imposed upon the respondent shall remain suspended for the period of three weeks. Disposed of in the above terms. (HEMANT GUPTA) JUDGE 25.10.2010 preeti