This writ petition under Article 226 of the Constitution has been filed by the plaintiffs in a suit (Original Suit No. 121 of 2012) which is pending before the Court of the Civil Judge (Junior Division), Bahedi, District Bareilly. The case of the petitioners is that they are bhumidhars of Plot No. 105 admeasuring 0.341 hectares situated in Village Jam Sawant Shumali, Pargana Richha, Tehsil Bahedi, District Bareilly. According to the petitioners, the name of their grandfather was recorded in the revenue record. The name of the gram sabha is stated to have been expunged on 13 October 1964. According to the petitioners, an ex parte order was passed on 22 September 2008 by the Sub Divisional Magistrate, Bahedi in Case No. 130 of 2007 under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, striking off the name of the petitioners' grandfather from the revenue records and by the said order, the land was recorded in the name of the gram sabha. The petitioners have stated before the Court that they filed a restoration application on 28 July 2012 for recalling the order dated 22 September 2008. The Sub Divisional Magistrate, Bahedi recalled his earlier order dated 22 September 2008. In the meantime, according to the petitioners, the private respondents, respondents 8 and 9, tried to occupy the disputed land on 10 November 2012. The petitioners instituted a suit in the Court of the Civil Judge (Junior Division), Bahedi. After hearing the parties to the suit including the Collector Bareilly, the learned trial Judge passed an order dated 21 February 2014, restraining the defendants from interfering with the possession of the petitioners during the pendency of the suit.
It is alleged in the writ petition that in violation of the interim order dated 21 February 2014, the defendants to the suit were bent upon constructing a building on the land, upon which the petitioners filed an application before the trial Court. By an order dated 30 May 2014, the Senior Superintendent of Police, Bareilly1 and Station House Officer, Bahedi were directed to comply with the interim injunction. Since, according to the petitioners, this was not heeded, they submitted an application to the trial court to provide police force on 31 May 2014 for compliance of the interim injunction. The learned trial Judge directed the petitioners to deposit the expenses of the police force for ensuring compliance of the order dated 30 May 2014. The petitioners filed an application on 2 June 2014 before the SSP, upon which he made an endorsement requiring the Station House Officer Bahedi to report with fact. The petitioners also moved an application under Order XXXIX Rule 2-A of the Code of Civil Procedure, 1908, in which notices were issued on 21 March 2014. The said proceeding is stated to be pending.
In paragraph 20 of the petition before this Court, it has been averred that the private respondents, with the help of certain persons, entered the residence of the Civil Judge (Junior Division), Bahedi on 31 May 2014 between 8.00 p.m. to 9.00 p.m. and threatened him for having passed the order of interim injunction on 21 February 2014. The Civil Judge, it is alleged, approached the police and thereupon issued a notice on 2 June 2014 for contempt of court against the fourth respondent, the District Magistrate, Bareilly. On these facts, the petitioners filed the writ petition before this Court on 19 June 2014 during the course of the summer recess seeking a mandamus to the authorities to protect the life and liberty of the petitioners. The second prayer, which was for compliance of the order of interim injunction dated 21 February 2014, reads as follows:
"Issue a writ, order or direction in the nature of Mandamus directing the respondents authorities to restrain the construction work of building upon the plot no. 104 situated at Village Jam Sawant Shumali, Pargana Richha, Tehsil Bahedi, District Bareilly and also direct the respondent authorities for compliance of the interim injunction order dated 21.02.2014 passed by Civil Judge (Jr. Division) Bahedi, District Bareilly in O.S. No. 121 of 2012, Azazul Huq and others Vs. Shamshad and others thereby the application no.6C has been allowed after hearing the parties."
The petition came up before a Division Bench of this Court on 23 June 2014. While directing the impleadment of the Registrar General of this Court, the Division Bench directed him to find out whether any complaint in respect of misbehaviour by the police authorities with the Civil Judge (Junior Division) has been received and, if so, what action has been taken. The learned Standing Counsel was directed to enquire from the District Magistrate, Bareilly and the SSP as to whether any complaint of misbehaviour with the judicial officer has been received and, if so, what action has been taken. The hearing of the petition was directed to stand over after lunch on the same day. On the same day after the lunch recess, the Division Bench took notice of the letter dated 2 June 2014, a copy of which is annexed as Annexure-13 to the petition, and observed that if the allegations were correct, it constituted an attack on the independence of the judiciary. The Division Bench was informed that adequate security has been provided to the judicial officer. The second, third and fourth respondents namely the Senior Superintendent of Police Bareilly, Station House Officer Bahedi, District Bareilly, and the Collector/District Magistrate, Bareilly were directed to remain present before the Court on 25 June 2014. The Division Bench made observations about the Registry of this Court on the ground that though the letter of the Civil Judge (Junior Division) was received on 11 June 2014, no action was taken on the administrative side and observed that for such apathy and inaction, appropriate disciplinary action needs to be initiated. The petition was, thereafter, directed to be listed on 25 June 2014.
In the meantime, affidavits were filed before the Court by (i) Sri Abhishek Prakash, the earlier District Magistrate, Bareilly, (ii) Sri Sanjay Kumar, present District Magistrate, Bareilly, (iii) Sri J Ravinder Goud, Superintendent of Police, Bareilly, (iv) Sri Pratyush Kumar, Registrar General of this Court, (v) Sri Kaloo Singh, Circle Officer, Nawabganj, Bareilly, and (vi) Sri Anoop Singh Rath, Senior Sub Inspector, Police Station Nawabganj, Bareilly.
The Division Bench reserved its order on 30 June 2014 pursuant to a further hearing and eventually pronounced an interim order on 11 July 2014. The Division Bench has issued several directions, which may be summarized as follows:
(i) A direction has been issued to the Central Bureau of Investigation2, New Delhi to register a case, make a suitable inquiry and determine the persons responsible for causing a threat and intimidation to the Civil Judge (Junior Division), Bahedi, and to submit a report within a period of three months;
(ii) The respondents, including the District Magistrate, Bareilly, SSP, Circle Officer, Nawabganj have all been directed to be posted out of Bareilly;
(iii) The Senior Sub Inspector has been directed to be placed under suspension pending enquiry; and
(iv) On the administrative side, it has been observed that the superior judicial officers in the district judgeship at Bareilly and in the Registry of this Court should be dealt with appropriately.
An application has been filed on behalf of the State for taking up the petition for final disposal or for vacating the interim order passed by the Court.
We have heard the learned counsel for the petitioners on the merits of the petition as well as the counsel for the respective respondents and have taken up the petition for final disposal, by consent.
The grievance of the petitioners is that though they were protected by an order of interim injunction passed by the trial Court in the pending civil suit, the order had not been complied with. An application under Order XXXIX Rule 2-A of the CPC has been moved before the trial Court, which is pending. In aid of the order of interim injunction, the petitioners moved an application before the trial Court on which an order was passed on 30 May 2014 directing the SSP and Station House Officer, Bahedi to ensure, at the expense of the petitioners, that the order of injunction dated 21 February 2014 is duly observed. This was followed by a further order directing the petitioners to deposit expenses in accordance with the rules together with an undertaking that they would make good any deficit. From the affidavits, which have been filed in the course of these proceedings, it has emerged that an appeal has been filed by respondents 2 to 4 (Misc. Civil Appeal No. 11 of 2014) against the order of the learned trial Judge which is pending before the District Judge.
The position in law is well settled. So long as an interlocutory order or, for that matter, any order of a Court holds the field, it has to be duly observed and has to be given effect to.
From the affidavits which have been filed during the course of these proceedings, by the SSP as well as by the erstwhile District Magistrate Bareilly (now posted as District Magistrate, Aligarh), it appears that the construction on the disputed land was being raised by the Jal Nigam and has been stopped since 1 May 2014. Copies of the work order, measurement book and photographs have been annexed to the affidavit. Whether there was a breach of the order of injunction prior to 1 May 2014 is a matter which needs to be determined and will be determined in the application under Order XXXIX Rule 2-A which is pending before the trial court. From the record, it, therefore, emerges, that following the order passed by the trial Court and, in any event with effect from 1 May 2014, all work at the site has been ceased. The State and its instrumentalities are duty bound to act in aid of and in compliance with the order passed by the trial court. So long as the order continues to hold the field and is not modified by any higher forum or by the trial court itself, the order must be duly observed. The purpose of the petition, which is essentially to secure compliance of the order of injunction has, therefore, been fulfilled in view of the position which has been noted above, that the work of construction has ceased. This is not disputed by learned counsel for the petitioners. The petition would hence have to be disposed of in as much as the merits of the grievance of the petitioners are concerned.
Once a petition under Article 226 is disposed of, all interim orders must necessarily merge with and come to an end upon the final order. All interim orders are in aid of the final order. The issue which needs to be addressed now is as regards the directions which were issued on 23 and 25 June 2014. A serious grievance has been made on behalf of the State in regard to the directions which have been issued by the Division Bench to the CBI to conduct a suitable enquiry into the matter.
Before we deal with the facts and circumstances of the case, we must, at the outset, advert to the judgment of a Constitution Bench of the Supreme Court in State of West Bengal & Ors. Vs. Committee for Protection of Democratic Rights, West Bengal & Ors.3. The Supreme Court has observed as follows:
"... we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."
A counter affidavit has been filed before this Court on behalf of respondents 1, 2, 3 and 4 by Shri Sanjay Kumar, presently posted as District Magistrate, Bareilly. In the affidavit, he has stated that he took over as District Magistrate, Bareilly on 8 June 2014 after the incident which is alleged to have happened and after the issuance of a notice of contempt against the earlier District Magistrate by the trial Court. The present District Magistrate has stated that on making an enquiry, he has been informed that the Additional District Magistrate was already holding an enquiry pursuant to an order dated 6 June 2014 passed by the earlier District Magistrate. The District Magistrate had held a meeting with the District Judge, Bareilly to apprise him of the progress of the enquiry, when the District Judge informed him that he had already set up an enquiry through the Additional District Judge-I, Bareilly. In his affidavit dated 26 June 2014, which was filed before the Division Bench before the interim order was passed, the District Magistrate has stated that the Additional District Magistrate, Bareilly, while conducting the enquiry had taken the statement of the then Circle Officer, Bahedi, the Senior Sub Inspector, as well as the Executive Officer of the Nagar Palika Parishad as well as the statement of the Project Manager of the U.P. Jal Nigam.
A supplementary affidavit dated 30 June 2014 was also filed in the proceedings by the SSP. In his affidavit, the SSP has stated that on 4 June 2014, he had received a letter dated 2 June 2014 of the Civil Judge, (Junior Division) Bahedi, apprising him of an incident which took place on 31 May 2014 and 1 June 2014. The SSP has stated that he took action on the same day by directing the Circle Officer, Bahedi to enquire into the matter. On 5 June 2014, the SSP received a letter dated 3 June 2014 of the Acting District Judge, Bahedi seeking adequate security for the Civil Judge, Bahedi. In pursuance thereof, it has been stated that proper security was provided to the Civil Judge. The Circle Officer, Bahedi concluded his enquiry and submitted a report on 10 June 2014 in the office of the SSP on 11 June 2014. The enquiry report, which has been submitted by the Circle Officer, Bahedi, contains a reference to the version of the employee of the Nagar Palika Parishad, one Ram Mohan Gautam who was detained by the police on 31 May 2014. According to the employee, when he was operating a 125 KV generator of the Nagar Palika Parishad and was in the vicinity of the premises of the Nagar Palika Parishad in which the Civil Judge is residing, the home guard of the Civil Judge summoned him to the residence of the judge. The Civil Judge is alleged to have directed the employee of the Nagar Palika Parishad to immediately rectify an electrical fault at his residence. At that stage, according to the employee, he informed the judge that he would summon another employee to attend to the fault. Soon after he had left the premises of the judge, he was again summoned by the home guard. When he returned, it is alleged that the Civil Judge assaulted him and abused him. The judge is alleged to have summoned the police and to have detained the employee in the meantime. The employee was taken to the police station at 9.00 p.m. on 31 May 2014 where he was detained until 9.00 p.m. the following day. This incident, which is alleged to have taken place at the residence of the Civil Judge (Junior Division), Bahedi on 31 May 2014, led to an agitation by the employees of the Nagar Palika Parishad, who addressed a complaint to the Administrative Judge of the district. The complaint states that the Civil Judge, after he had taken charge, was residing in the premises of the Nagar Palika Parishad and had obtained a connection to the generator of the Nagar Palika Parishad for the purpose of his own personal residence. The complaint by the employees contains a detailed account of what is alleged to have transpired when the employee of the Nagar Palika was summoned by the Civil Judge on 31 May 2014 which led to the incident in question. The incident was reported in the media on 2 June 2014.
At the outset and before we proceed further, it is necessary for the Court to record that while we have adverted to the aforesaid averments which have been placed on the record of the Court in the affidavits which have been filed on behalf of the officers of the State, we clarify that on the judicial side and particularly since the learned Civil Judge is not a party to these proceedings, we are not commenting on the veracity of either the version of the learned Civil Judge or, for that matter, the version as it appears in the report of the Circle Officer. The issue before the Court is whether it is either appropriate or proper to continue with such wide-ranging directions to CBI to hold an enquiry; for the transfer of all the concerned officers then posted in the district of Bareilly; and the suspension pending enquiry of the Senior Sub Inspector.
Since we are disposing of the petition finally, it has become necessary for the Court to determine as to whether the directions which are contained in the interim orders dated 23 June 2014 and 11 July 2014 should continue to subsist. The Division Bench was apprised by an affidavit filed by the Registrar General of this Court in terms of the order dated 23 June 2014, that the letter of the Civil Judge (Junior Division), Bahedi, District Bareilly was received in the office of the Registrar General on 12 June 2014. The Registrar General has stated that he marked the letter to the Joint Registrar (Inspection) on 13 June 2014. Fourteenth and fifteenth June 2014 were not working days, being Saturday and Sunday, and on 16 June 2014, the Joint Registrar (Inspection) marked the file to the Deputy Registrar (Admin.). The file was received by the Assistant Registrar on 17 June 2014 who prepared his report for due consideration by the Administrative Judge, incharge of the Bareilly Judgeship and which was forwarded by him to the Joint Registrar (Inspection) on 23 June 2014. The Registrar General has stated that the matter was under the active consideration of the Administrative Judge of Bareilly judgeship and that as Registrar General, he had taken all steps within his command diligently, based on his ability in dealing with the complaint of the Civil Judge (Junior Division) Bahedi, District Bareilly.
During the course of the hearing, this Court has also been apprised of the fact that an enquiry has been directed to be conducted by the District Judge, Bareilly on the instructions of the learned Administrative Judge of this Court in-charge of the Bareilly judgeship.
The petition which was instituted during the course of the summer recess, was based on a grievance that an order of injunction which was passed in favour of the petitioners by the trial Court was being breached by the authorities of the State. The writ petition was filed in order to secure a direction in aid of the enforcement of the order of the trial Court. In the writ petition, the petitioners have annexed at Annexure-13, a copy of a notice issued by the Civil Judge (Junior Division), Bahedi on 2 June 2014 to the Collector and District Magistrate, Bareilly. A reference to the notice is contained in paragraph 20 of the writ petition. The affidavit in support of the petition states that the contents of paragraph 20 of the writ petition are based on a perusal of records. Evidently, a photocopy of the notice, which is annexed at Annexure-13 has not been issued in the pending suit, Original Suit No. 121 of 2012. Hence, during the course of the hearing, we had enquired from the learned counsel appearing on behalf of the petitioners of how the copy had been obtained. The learned counsel for the petitioners informed the Court that the copy was, perhaps, acquired unauthorizedly from the office of the District Magistrate, Bareilly. We need not make any comment on this aspect of the matter. Be that as it may, in a petition of this nature, we are of the view that before issuing directions for an enquiry by CBI, rules of natural justice should be observed. None of the affected parties have been placed on notice that an enquiry by the CBI may be ordered. No such relief has been sought by the petitioners. The order dated 11 July 2014 does not reflect consideration of the affidavit which has been filed by the Registrar General. The contents of the report of the Circle Officer which would have an important bearing on whether an enquiry of this nature by CBI should be ordered at that stage, have not been dealt with.
Section 10 of the Contempt of Courts Act, 1971 vests in every High Court the jurisdiction, power and authority, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself. Under Section 15, it is open to the High Court to take action inter alia on its own motion in the case of a criminal contempt or on a motion made by the Advocate General or any other person, with the consent in writing of the Advocate General. Sub-section (2) of Section 15 provides that in the case of a criminal contempt of a subordinate court, the High Court may take action on a reference made to it by the subordinate court or on a motion made by the Advocate General, or in relation to a Union Territory, by such Law Officer as the Central Government may specify. Rules have been framed by this Court, called the Contempt of Courts (Allahabad High Court) Rules, 1977. In this High Court, a Committee of three Hon'ble Judges has been set up for scrutinising references in relation to contempt made by the subordinate courts.
The Trial Judge has, in the present case, issued a notice on 2 June 2014 to the District Magistrate, Bareilly. The Administrative Judge of Bareilly judgeship, a Judge of this Court, has also directed an enquiry to be made by the District Judge, Bareilly in regard to the matter. There can be no apprehension in regard to the fairness of the enquiry which is being conducted by the District Judge under the over all control of the Administrative Judge. During the pendency of those proceedings, it would, in our view, be inappropriate to prejudge the entire issue by directing an enquiry by the CBI. Without indicating more at this stage, it is necessary to note that just as it is necessary to enquire into the complaint of the Civil Judge fairly with a view to protect judicial independence, the version of the employee(s) of the Nagar Palika in regard to the role of the Civil Judge has to be objectively examined. Both are integrally connected and relate to the same incident. Handing over an enquiry to the CBI at this stage may, in fact, seriously impinge on the integrity of the institution of the trial court. The enquiry under the authority of the Administrative Judge will in fact be the most appropriate course of action. The District Judiciary is under Article 235 of the Constitution subject to the supervision and control of the High Court. It would be most inappropriate to continue with an enquiry by CBI.
In this connection, the decision of Seven Learned Judges of the Supreme Court in Samsher Singh Vs. State of Punjab & Anr.4 needs to be noticed. In that case, the High Court had directed the government to depute the Director of Vigilance to hold an enquiry against a judicial officer. The Supreme Court expressed its disapproval to the holding of an enquiry against a judicial officer even by the Director of Vigilance. The Supreme Court was of the view that as it was the High Court which had the control over the subordinate judiciary under Article 235 of the Constitution, it should have conducted the enquiry through some District Judge and should not have asked the Government to enquire through the Director of Vigilance. The relevant observation contained in para 78 of the judgment reads as follows:
"78. The High Court for reasons which are not stated requested the Government to depute the Director of Vigilance to hold an enquiry. It is indeed strange that the High Court which had control over the subordinate judiciary asked the Government to hold an enquiry through the Vigilance Department. The members of the subordinate judiciary are not only under the control of the High Court but are also under the care and custody of the High Court. The High Court failed to discharge the duty of preserving its control. The request by the High Court to have the enquiry through the Director of Vigilance was an act of self abnegation. The contention of the State that the High Court wanted the Government to be satisfied makes matters worse. The Governor will act on the recommendation of the High Court. That is the broad basis of Article 235. The High Court should have conducted the enquiry preferably through District Judges. The members of the subordinate judiciary look up to the High Court not only for discipline but also for dignity. The High Court acted in total disregard of Art. 235 by asking the Government to enquire through the Director of Vigilance."
As regards the administrative officials of the State, the Chief Secretary of the State must institute a high level enquiry in regard to the conduct of the officials of the State involved at the relevant time and take an appropriate decision, based on the findings which may be arrived at in the course of the enquiry.
The Court has been informed that in pursuance of the order dated 11 July 2014, the Senior Sub Inspector has been placed under suspension. We direct the disciplinary authority to conduct a review on the basis of the applicable service rules and regulations and to take an expeditious decision in regard to the holding of disciplinary proceedings and in regard to the continuance of the order of suspension pending a disciplinary enquiry.
Since we are disposing of the petition on merits, we clarify that the interim order dated 11 July 2014 shall stand vacated. The observations which are contained in the orders dated 23 June 2014 and 11 July 2014 against the Registrar General of this Court and the Registry are, in consequence, expunged from the record.
In consequence, we clarify that the direction to the CBI to hold an enquiry shall stand vacated.
The petition is, accordingly, disposed of. There shall be no order as to costs.
Order Date :- 8.8.2014 AHA (Dr. D.Y. Chandrachud, C.J.) (Dilip Gupta, J.) Chief Justice's Court C.M. Stay Vacation Application No. 246227 of 2014 Re:
Case :- WRIT - C No. - 33013 of 2014 Petitioners :- Azazul Huq And 11 Others Respondents :- State Of U.P. Thru Secy. And 8 Others Counsel for Petitioners :- Ved Mani Sharma Counsel for Respondents :- C.S.C.
Hon'ble Dr. D.Y. Chandrachud, Chief Justice Hon'ble Dilip Gupta, J.
Allowed.
For orders, see order of date passed on separate sheets on the memo of the writ petition.
Order Date :- 8.8.2014 AHA (Dr. D.Y. Chandrachud, C.J.) (Dilip Gupta, J.)