CIVIL APPEAL 355121 of 2016 on 21 October 2016

Case :- CONTEMPT APPLICATION (CIVIL) No. - 1276 of 2016

Applicant :- Ram Janak And AnotherOpposite Party :- Vijai Bahadur Singh, Asstt. Collector/S.D.M. And 4 Ors.

Counsel for Applicant :- Shreeprakash SinghCounsel for Opposite Party :- Devi Prasad Mishra Hon'ble Pankaj Naqvi,J.

Order on Recall Application No. 355121 of 2016

Heard Sri Shreeprakash Singh, learned counsel for theapplicants in the recall/ restoration application and SriDevi Prasad Mishra, learned counsel for the oppositeparties.

This application for recall/ restoration has been filed forseeking recall of the order dated 21.10.2016 in ContemptApplication (Civil) No. 1276 of 2016 was dismissed andnotice discharged.

The order dated 21.10.2016 is extracted hereunder:

"Heard Shri Shree Prakash Singh, learned counsel for theapplicants and Shri Devi Prasad Mishra for this opposite party.

This contempt application has been filed under Section 12 of theContempt of Courts Act for punishing the opposite party for wilfuland deliberate dis-obedience of order dated 21.4.2015 passed inP.I.L No.22364 of 2015.

By order dated 21.4.2015 in the above petition, this court directedthat in the event, the applicant files a comprehensiverepresentation before the Additional Collector for initiatingproceedings under Section 122-B of U.P.Z.A.&L.R. Act, anexpeditious decision shall be taken thereon.

An affidavit of compliance has been filed on behalf of O.P nos. 3wherein it is stated that pursuant to the order of Sub DivisionalMagistrate dated 14.7.2016 under Section 122-B of U.P.Z.A.&L.R,Act, the encroachment has been removed. Similarly an affidavit ofcompliance on behalf of O.P no.2 also annexes a photograph atpage-45 of the affidavit showing the removal of encroachment overthe passage in question.

Learned counsel for the applicant on the basis of counter affidavitto the compliance affidavit asserts that till date entire encroachmenthas not been removed. but considering the limited jurisdiction, thiscourt cannot take such an exercise. Substantially the order hasbeen complied with.

The contempt is dismissed. Notice discharged."

The restoration/ recall application is filed on the strengthof Annexure-2 to the recall filed before the DistrictMagistrate and the S.D.O concerned, on the premise thatthe Revenue Inspector concerned, instead of filling theearth over the entire disputed passage is only doing fillingwork over a part of the passage despite a request madeby the Pradhan, concerned to carry out the earth fillingwork over the entire passage.

Learned counsel for the petitioner during the course ofarguments also asserted that notwithstanding the allegedcompliance, there are still some trees acting as anobstruction over the public passage, but considering therecitals made in the application (Annexure-2), the Courtdoes not find that there is any allegation of anyencroachment in the form of standing trees. The onlyallegation in the application (Annexure-2) is with regard tonon-filling of the earth, which was neither an issue beforethe Writ-Court, nor before the Contempt-Court, thus couldnot be made a basis to recall the order dated 21.10.2016.

It is well settled that the Contempt Court is onlyconcerned as to whether the order has been substantiallycomplied with or not. Once the order dated 21.10.2016has been passed on the premise that the Court wassatisfied with the compliance affidavit, which only directedfor the conclusion of the proceedings under Section 122-B of the U.P.Z.A, & L.R. Act expeditiously, which havingcome to an end and the encroachment removed, penaltydeposited, no collateral issue arising therefrom could bemade a subject matter in this application.

The restoration application as framed is dismissed bothon maintainability as well as on merits.

Order Date :- 4.1.2018N.S.Rathour