Facts and Circumstances leading to the imposition of of cost of Rs. 50,000 on me as an Advocate, by the fountain of Justice Mr. Mahesh Grover of the Punjab & Har. High Court. I have no comment to be made in the matter except the Review Application; which is self-explanatory of the state of affairs.
"IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RA-LP-24-2017
In L.P.A. No. 740 of 2017
IN THE MATTER OF:
SHARMILA
KAUSHIK AND ANOTHER ........Petitioners
//VERSUS//
PARAS BUILDTECH INDIA PVT. LTD. & OTHERS ..Respondents
APPLICATION UNDER ORDER XLVII RULE 1 CPC; SEEKING
REVIEW OF THE ORDER DATED: 15.5.2017 IN
L.P.A. NO. 740 OF 2017.
RESPECTFULLY SHOWETH:
1.
That the Applicants had filed the Letter Patent AppealNo. 740 of 2017;under clause X of the Letters Patent Appeal
Act against the order dated 05.05.2017 passed by Hon’ble Mr. Justice Amit Rawal in CM No. 6632-6633 of
2017 in CWP No. 8408 of 2017 [Application under sub-article (3) of Article 226
of the Constitution of India].
2.
That
the brief factual matrix culminating into the filing of the L.P.A.-740 of 2017
are as follows:-
Ø
‘PARAS
BUILDTECH INDIA PVT. LTD. & OTHERS’ (the builder and developer) by filing
CWP-8408-2017 had approached this Hon’ble Court seeking quashing of the notice
and consequent proceedings of the State; for demarcation/identification of land.
Its worth emphasising that through the impugned notice/proceedings the State
had not threatened the builder/developer in any manner to cause any harm; what
to talk about irreparable harm. Simply, the State had initiated the process of
demarcation of land.
Ø
The above
said writ petition filed by the builder/developer was fixed for 25.04.17 for
initial hearing, however, Hon’ble Mr. J. M.M.S. Bedi was pleased to pass the
order which reads:
“Present: Mr.
Alok Mittal, Advocate, for the petitioners.
****
Be listed before another Bench
after obtaining necessary orders from Hon'ble the Chief Justice, on
27.04.2017.”
Ø
The matter was listed before Justice Amit Rawal,
who, vide interim order dated: 27.04.2017, without hearing the State, stayed
the demarcation proceedings. The interim order reads:
“Present: Mr. Akshay Bhan, Senior Advocate with Mr. Amandeep
Singh Talwar, Advocate for the petitioner.
* * *
Inter alia contends
that in pursuance to the direction given by the Green Tribunal, demarcation of
land in dispute was conducted and as per the report dated 08.04.2016 (Annexure
P-14), it was found that there is an encroachment by the petitioner on an area
of 195 square yards (163.045 sq.mtr.) by building a ramp. The petitioner is
stated to have made a representation for adjustment of the area by giving an
alternative area vide letter dated 10.11.2016 (Annexure P-19) and that was
being considered and recommended yet on the basis of the complaint, the
Municipal Corporation called upon the petitioner, vide Annexure P-23 for fresh
demarcation. The petitioner has already submitted a representation to that
effect for conducting the demarcation on 13.04.2017 but somehow the demarcation
has not been done and thus, urges this Court for quashing the impugned order,
much less issuance of direction to the authorities for implementation of the
report dated 20.04.2016 (Annexure P-17).
Notice of motion for
03.08.2017.
In the meanwhile,
further proceedings in pursuance to notices dated 30.03.2017 (Annexure P-21)
and 13.04.2017 (Annexure P-23) are ordered to be kept in abeyance.”
Ø
The
Applicants, i.e., the private Respondent No.7 and 8, came to know about the ex-parte stay
order dated 27.04.2017 through media coverage which reads:
“The
National Green Tribunal (NGT) on Friday asked private developer to prove it has
not encroached upon a natural drain in Gwalpahari village. This drain, known as
kost nullah, further join the Badsahpur drain at Ghata village. The Green
Court's direction to Paras Buildtech Limited came a day after the realtor
managed to obtain a stay from the Punjab & Haryana High Court on a notice
issued by NCG for conducting a fresh demarcation of the kost nullah.”
(i)
The Applicants (Respondent No.7 and 8), from their own
sources including media sources became aware of the fact the Builder/Developer
had managed to obtain the ex-party stay by not only by concealment of the
crucial and relevant facts from this Hon’ble Court, but also by making
misleading and wrong statement. Therefore, the Applicants being two of
uncounted ultimate victims of the encroachment of the public land by the
builder/developer; filed Application under Sub-Article 3 of the Article 226 of
the Constitution for Vacation of Stay, by fulfilling the constitutional
requisite condition of ‘supplying the a
copy of such application to the party in whose favour such order has been made
or the counsel of such party’. In the
Application for Vacation of Stay, supported with statement on oath in the way
of Affidavit, the Applicants categorically pleaded that: -
“Petitioners (Builder/Developer) have managed the interim
order by concealment of crucial of relevant fact that the Hon'ble Green
Tribunal is already seized with the matter and issued notice on 28.03.2017.Any stay which shall cause delay in the
proceedings before the expert body, Hon’ble National Green Tribunal, next fixed
for 03.07.17….re-demarcation awaited by the Hon’ble National Green Tribunal in
this very matter for further proceeding on 03.07.17 would be stopped in view of
the continuing stay by this Hon’ble High Court effective till 03.08.17, can
never be said to be fully in the interests of justice.” “The Petitioners have merely mentioned that the encroached
area is only 195 Sq.Yds., whereas the actual encroached area is 6,969.113
Sq.Yds. which is clear from the registered demarcation plan bearing Tehsildar
Sohana Registration No. 2532, Dated: 07.05.2015”
Ø The Application under Article 226(3) of the
Constitution was fixed for hearing on 05.05.2017. The Counsel for the
builder/developer; despite receiving advance copy of the Application for
Vacation of Stay, had chosen not to oppose the Applicants’ prayer for vacation
of stay. However, Justice Amit Rawal vide order dated: 05.05.2017 refused to
allow placing on record the Application under sub-article-3 of the Article 226
of the Constitution and dismissed the same only on the ground that the
Applicants had failed the written statement in the writ petition.
3.
That
aggrieved with the decision of the Ld. Single Judge the Applicants filed
the LPA No.740-2017. And, this Hon’ble
Court vide order dated 15.5.2017 dismissed the aforesaid L.P.A., with the cost of Rs. 50,000/- to be recovered from the Advocate representing the Appellants.
4.
That Order
Dated: 15.5.2017 in L.P.A. No. 740 of 2017 suffers from the errors of
law apparent on the face of
the record, as the specific
substantial questions of law of public importance categorically pleaded in the
LPA appears to have been inadvertently overlooked by this Honourable Court.
Further, this Hon’ble Court has acted beyond its jurisdiction while imposing
cost of Rs. 50,000/- on the Advocate for the Petitioners, that’s also without
issuing any Show Cause Notice to the Advocate. The errors of law apparent on the face of
the record, violation of natural
justice and judicial overreachis self-explanatory on the following counts: -
I.
BECAUSEthe
Judgment in LPA has not at all dealt with the Substantial Questions of Law of public importance and
interpretation of the Constitution; pleaded in the Para No.2(ii) of the
L.P.A. at Page No. 4 of the Paper Book, which reads:
A. What object the Legislature did seek to
achieve by making it mandatory to serve the advance copy of the Application
under Sub-article 3 of Article 226 of the Constitution of India?
B. Whether the insistence on the written
statement as a precondition for filing of Application
under Sub-article 3 of Article 226 of the Constitution of India, will defeat
the object sought to be achieved by the Constitution 44 Amendment Act, 1978?
C. Whether, the filing of written statement is
prerequisite for filing the Application under
Sub-article 3 of Article 226 of the Constitution of India; even if there is the
error apparent on the face of the interim order?
D. What object the Legislature did seek to
achieve by making it mandatory to serve the advance copy of the Application
under Sub-article 3 of Article 226 of the Constitution of India?
E. Whether the Application under Sub-Article 3
of the Article 226 of the Constitution of India can be dismissed without
seeking reply of the party in whose favour the interim order had been made?
Whereas, the aforesaid substantial questions of law
involving interpretation of the Constitution of India go to the root of the
matter and without touching or adjudicating the aforesaid questions of law
having wide ramification for the lives of lakhs and lakhs citizens;
straightaway dismissal in limine of the LPA with the cost of Rs.
50,000/- to be recovered from the Advocates, is a miscarriage of justice and would
discourage an Advocate to raise valid argument without fear of bench.
II.
BECAUSE
this Hon’ble Court has no jurisdiction to impose cost of Rs. 50,000/-(Fifty
Thousand) on the Advocate for the Applicants, until and unless an Advocate is
guilty of Contempt of Court after being heard upon notice. Moreover, the order
imposing costs suffering errors apparent on its face baffles the common human
prudence as to why the cost has been imposed and that’s also without issuing
any Show Cause Notice. The only plausible reason for imposing cost on the
Advocates appears to be that the counsel had not placed on record the copy of
the writ petition. But, it may be appreciated that an Advocate has to be dependent
on the documents provided by the clients and his instructions. In this regard,
it may be relevant and important to mention here that the Advocate for the
Applicants had written a letter to them and had sought specific instructions on
the issue in hand, which reads:
“As
per your instructions I had filed the LPA vide Diary No. 1765490, against the Order Dated: 05.05.2017
passed by Hon’ble Justice Mr. Amit Rawal in CM-6632-6633-2017 in CWP No.8408 Of
2017.
Whereas the HC Registry before registration of L.P.A.
has raised certain objections. Apart from some inadvertent
typographical/clerical errors, one objection concerning you is that, “Complete
copy of CWP should be attached with this LPA.” You may recall that before filing of the
L.P.A. I had apprised you that the HC Registry would demand the copy of the
CWP. However, you both telephonically told me that the copy of the ‘Paper Book’
had not been received and the time consumed in obtaining the copy of ‘Paper
Book’ would further delay the matter and the builder would be successful in
getting stayed the proceedings of identification of land encroached by the
builder, i.e., ‘Paras Buildtech India Pvt Ltd’, which will put the
lives of thousands of persons at risk.
Be that as it may, if you want
I can try to seek the copy of the ‘Paper Book’ from H.C. Registry; by applying
the certified copy of the same. Though, you have telephonically expressed your
inability to provide the copy of the CWP-8409-2017, but it would be very
difficult to persuade the HC Registry to register the LPA without copy of the
CWP.” The
true copy of the Advocate’s letter is annexed herewith as ANNEXURE
R-1.
And,
the Applicants’ reply to the aforesaid letter expresses their helplessness and
goes on to show how our system makes the ordinary citizens pitiful creatures;
in the face of powerful builder. The verbatim letter is reproduced below to
appreciate the anguish of ordinary citizens, which reads:
“(1) We are in receipt of
your letter dated: 09.05.2017 in reference to the LPA filed vide Diary No.
1765490, against the Order Dated 05.05.2017 passed by Hon’ble Mr. Justice Amit
Rawal in CM-6632-6633-2017 in CWP No.8408 of 2017.
(2)
We’re surprised and shocked at unprecedented
developments in our case. It appears that you’re too much afraid of the Senior
Advocate Akshay Bhan son of former Supreme Court Judge J. Ashok Bhan (Retd.)
and Advocate Alok Mittal (son of J. Ajay Kumar Mittal, presently serving High
Court Judge), who are representing the powerful Builder and that’s why you
appear very cautious while dealing with our case.
(3)
We feel sorry to make the aforesaid comment, but
we’re tormented by the whole lax process and we spending our hard earned money
purely on the public cause, related to the lives and safety of thousands of
persons. Therefore, let us narrate the whole gamut of the forthcoming peculiar
facts and circumstances to fully contextualize our above comment.
(4)
We’re taking pains, purely from own pocket, to
oppose the encroachment of natural drains and the land connected with the
natural drains because we along with other thousand residents are victims of
the floods due to the encroachments of the natural drains by the builders. You
will be shocked to find that during the monsoon season the water level goes
more than 5-6 feet and situation for us; especially for the old aged persons
and children; becomes worse as during medical emergencies and other
emergencies, they can be sent to Hospital only by airlifting.
(5)
So in the aforesaid dangerous situation we have been
raising the issue of encroachment of public land/natural nallas/drains before
multiple concerned authorities including Haryana Govt., National Green Tribunal
(NGT) etc.
(6)
We came to
know that writ petition 8408-2017 was filed by builder seeking stay of the
‘identification/demarcation of land’ by Advocate Alok Mittal (the son of
serving High Court of Punjab and Haryana High Court Judge J. Ajay Kumar Mittal) appeared for builder on
25.04.17 for initial hearing. However, J. MMS Bedi due to unknown reasons
refused to hear the matter and placed the matter before Hon’ble Chief Justice.
I am consciously using the word ‘unknown reasons’, because while reading the
order dated 25.4.17 I can not find any reason for not hearing the matter, as
the order only reads: “Be listed before another Bench after obtaining necessary
orders from Hon'ble the Chief Justice, on 27.04.2017.”
(7)
Then the matter was fixed before J. Amit Rawal who
through an order dated27.04.2017 stayed the ‘proceeding of demarcation of land’
after giving unilateral hearing Senior Advocate Akshay Bhan; the son of Supreme Court Judge J. Ashok Bhan (Retd.) And, this stay was granted even without
hearing the State Counsel who was present in the court, what to talk about
hearing the poor affected citizens like me. We came to know about the ex-parte
stay order dated 27.04.2017 through media coverage of the stay granted by High
Court. I am shocked to find such stay; because the Govt. Authority did not even
whisper that the Paras Buildtech had encroached the land or it wanted to
demolish the building constructed by it. The Govt. Authority just wanted to
demarcate/identify the land. We tried our best to obtain the copy of the writ
petition, but we were given to understand by the High Court officials that the
Process Fee had not been deposited by the Petitioners and the petition will be
received by us through court process after the deposit of process fee by the
Petitioner.
(8)
Then we approached you and apprised you about the
emergent situation created by the approaching monsoon season and you advised us
to file petition under Article 226(3) of Constitution. Accordingly, on
02.05.2017, after filing of the Application for Vacation of Stay you told me
that as per the HC Rules/practice will come up for hearing on 04.05.2017. On
04.05.2017 we reached High Court for hearing of the case; but we were shocked
to find that our case had not been listed. You told us that ‘in routine the
matter is listed after the gap of one day’. Then when we asked you to accompany
us to the Registrar General over this goof-up, you refused to accompany us, we
had to approach to the Registrar General at our own and then seek an enquiry
into the matter. And, a news story was published in media, one story in ‘Times
of India, dated: 05.05.2017 reads:
“Gwalpahari plea not listed, registrar seeks probe”
“A plea in the Punjab and Haryana high court seeking
to vacate the ex-parte stay granted to Paras Buildtech on fresh demarcation of
a natural drain in Gwalpahari by MCG could not be heard on Thursday,
as the matter was not listed.
After the petitioners complained of wrongdoing on the
part of officials in the court registry, the Haryana registrar general
Gurvinder Singh Gill directed his staff to find out why the matter was not
listed, terming it "suspicious".
"Application of vacation of ex-parte stay has the
highest priority in courts. As per the high court rules, it is mandatory that
the urgent petition filed by us on May 2 has to be listed for hearing on May
4," said petitioners Sharmila Kaushik and Vaishali Rana. However, this was not done and it seems to be
the work of people who did not want the case to be heard on Thursday,"
added petitioners Sharmila Kaushik and Vaishali Rana. The matter will now be
heard on Friday.
The petitioners, who are residents of Valley View
Estate in Gwalpahari, where the private builder is allegedly constructing a
building right on the Kost nullah, have sought the stay to be vacated on two
grounds.
"The private builder has sought the stay on the
ground that they will incur irreparable loss if the MCG demolishes its project,
even though MCG has only issued a notice to conduct a fresh demarcation and has
nowhere used the word demolition and that Paras has not revealed to the high
court that the same matter is being heard by the technically competent National
Green Tribunal in Delhi."
Paras Buildtech, though, claimed that it has informed
the high court about the case being heard by the National Green Tribunal.”
(9) This is how the matter was listed for arguments
on 05.05.2017. And, we feel that the matter was listed on 05.05.2017 only
because of our meeting with Registrar General coupled with media reporting,
otherwise the matter could be further delayed, which apparently appears to be
actuated by the influence of the powerful builder supported by heavyweight
Advocates.
(10) Then another attack on the public cause came
when our Application for Vacation of Stay was dismissed by J. Amit Rawal,
that’s also without any appearance of advocates from the side of Petitioners,
who did not even care to come to Court and you remained silent spectator of
this injustice perpetuated at the hands of vested interests. Could you not
apprise J. Amit Rawal that the Builder’s Counsel had concealed the fact that
same issue in which he had granted stay was pending before the Green Tribunal,
which is expert body? Could you not apprise J. Amit Rawal that the encroached
area is much higher than the admitted one?
(11) And, now, we receive a letter from you
indicating that you are unable to register our LPA without copy of the writ
petition, which we have not received so far; through court process. Prior to
appoint you we had made several rounds of the HC Registry seeking copy of the
writ petition. But, the vested interests are so powerful that, the same copy of
writ petition which was openly accessible to the media and other persons, was
denied to us on the ground that the process fee had not be deposited by the
Counsel for Petitioner. Now, if you seek the certified copy of the writ
petition at this stage, it will further delay the matter as the Municipal
Corporation, Gurugram, vide letter No. Tehsildar/MCG/2017/330, Dated:
08.05.2017 has fixed the measurement of the area in issue, i.e., Khasara No.
86, GairMumkinNala, earlier fixed for 02.05.2017 has now been fixed for 12.05.2017.
Moreover, when due to lack of complete set of documents we are unable to file
the written statement at this stage, what is the relevance of the copy of the
writ petition? Are the malpractices and fraud played with the High Court not
apparent on the face of the order dated 27.04.2017 of J. Amit Rawal? Has J Amit
Rawal decided our Application for Vacation of Stay on merit? Has Advocate for
the Petitioners not accepted that the public land has been encroached?, Though
encroached area is much higher than accepted by builder. These glaring
malapractices and fraud played upon the court is clear even to the layman. We
are unable to understand how the copy of the writ petition will put more light
on the fraud played upon with the High Court? Moreover, the copy of the writ
petition and all other documents are available in the file of CWP-8408-2017 is
available in the same High Court, which can be summoned by the Hon’ble Court,
in case some rule requires that in LPA copy of CWP is essential why could not
the registry attach the file of CWP with the file of LPA, when we had told the
registry on 04.05.17 itself that copy of CWP is not yet given to us by
petitioner. Please appreciate that any delay in the measurement of the land
will jeopardise the life and safety of the thousands of inhabitants in the
area, during the approaching monsoon season, as even last year there was as
much as about 6 feet water on the road. Therefore, you’re requested to mention
that matter to the Registrar General or Chief Justice apprising of the emergent
situation and get listed our LPA. We are sure that the LPA bench will
understand the gravity of the situation; further aggravated with the fraud
played with the High Court.
(12) In these circumstances it appears to us that
though you accepted our brief for fee, but now you are afraid of the powerful
lobby of Advocates and builder. If you continue to delay our matter on one
excuse or other we will be constrained to approach the Bar Council. Please
ensure registration of our LPA by bringing the issue into the notice of the
Registrar General and Chief Justice. Sir, if you can’t do it; we at our own
level can try to do it.”
The true copy of the letter written by the
Petitioners is annexed herewith as ANNEXURE
R-2.
Had the Division Bench issued Show Cause Notice to
the Advocate he would have explained under what circumstances and under what
exigency he was constrained to invoke powers of this Hon’ble Court by filing
the LPA. The LPA was filed with the hope of safeguarding the lives of the
thousands of citizens. If the Judiciary starts imposing cost on
Advocates in this manner; it may amount to muzzling the voice of Advocates
which will ultimately culminate into non-representation of clients.This is what
is known as “lock-jaw” which
practice by any authority whether administrative or judicial, has been
deprecated by a Constitution Bench.[Mohinder Singh Gill v. Chief Election
Commissioner, 1978 (1) SCC 405 at SCC pp.436-437 at para 56] This is also a
case where the Judiciary has clothed itself with the powers of Bar Council and
punished the Advocate on the basis of conjectures and surmises without granting
any opportunity of hearing to the Advocate, which attracts the mischief of Supreme
Court Bar Association v. Union of India and another, 1998 (4) SCC 409.
III.
BECAUSE the Judgment in LPA has not
at all dealt with the categorical Oral Application made by the Counsel for Applicants
in terms of the Article 134-A of the Constitution of India, which reads:
“Every High Court, passing or making a judgment,
decree, final order, or sentence, referred to in clause (1) of article 132 or
clause (1) of article 133, or clause (1) of article 134,—
(a) may, if it deems fit so to do, on its own motion;
and
(b) shall, if an oral application is made, by or on
behalf of the party aggrieved, immediately after the passing or making of such
judgment, decree, final order or sentence, determine, as soon as may be after
such passing or making, the question whether a certificate of the nature
referred to in clause (1) of article 132, or clause (1) of article 133 or, as
the case may be, sub-clause (c) of clause (1) of article 134, may be given in
respect of that case”
IV.
BECAUSE the prayer (iii) in in CM No. 6632-6633 of 2017 in CWP No. 8408
of 2017 [Application under sub-article (3) of Article 226 of the Constitution
of India] was “ (iii) Initiate process
under Section – 340 Cr.P.C. against the Petitioners”
therefore the applicants in CM 6632-6633
of 2017 in CWP No. 8408 of 2017 and LPA 740 of 2017 also enjoyed the
status of informants in terms of 340 CrPC which status encompasses the Applicants
represented by their Counsel, in terms of law laid down in Byram Pestonji
Gariwala v. Union Bank of India and others, 1992 (1) SCC 31. That the law
of punishment by fine in such a scenario is categorically laid down in Abdul
Hamid v. Ahmad Shah,AIR 1943 Lah 26 at AIR p.27 at para 2 that ‘any imposition of costs upon informants
of offences against administration of justice is “without jurisdiction.”
5.
That the errors of law apparent on the face
of the record have left unanswered the questions of law of general public
importance and interpretation of the Articles 226, 134-A and Article 21 of the
Constitution of India.
6.
That the Applicant submits that there are
sufficient grounds as stated in Para No. 3 to persuade this Hon’ble Court to
review the order dated 15.5.2017 in
L.P.A. No. 740 of 2017 and to pass appropriate order in the interest of
justice.
PRAYER:-
It is therefore, prayed that this Hon’ble Court may be
pleased to:
(i) Review the Order Dated: 15.5.2017 in L.P.A. No. 740 of 2017 for errors of
law apparent on the face of
the record, enumerated in the
present Application, and/or
(ii) Dispose
of the Oral Application made on 15.05.2017 by the Counsel for Petitioner
in terms of the Article 134-A of the Constitution of India, and/or
(iii) Pass
any other order which may be appropriate in the interest of justice in the
light of the facts and circumstances of the present case.
CHANDIGARH (PARDEEP KUMAR RAPRIA)
DATED: 30.05.2017 COUNSEL FOR THE PETITIONERS
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