Asherfi Lal v. Union of India Through Secretary Department of Telecommunication Min

1. Heard learned counsel for the petitioner, Shri Anand Dwivedi, learned counsel appearing for respondents No.1 and Ms Nidhi Singh, learned counsel appearing for respondents No.2 and 3.

2. With the consent of the parties, the matter is being decided finally.

3. Instant writ petition has been filed seeking following reliefs:- "(i) Issue a writ, order or direction in the nature of Mandamus commanding the Opposite Parties to implement the Judgment and Order dated 19.05.2023 passed in the Writ Petition No. 3711 of 2023 :Asharfi Lal @ Asherfi Lal vs Union of India Through Secretary Department of Telecommunication Ministry of Communication, New Delhi & 2 Ors. (ii) Issue any suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case. (iii)...."

4. Contention of the learned counsel appearing for the petitioner is that earlier the petitioner has approached this Court by filing Writ Petition No.3711 of 2023 In Re Asharfi Lal @ Asherfi Lal vs Union of India Through Secretary Department of Telecommunication Ministry of Communication, New Delhi & 2 Ors which was decided vide judgment and order dated 19.05.2023, a copy of which is Annexure-1 to the petition with following directions:- "Thus, the petition is disposed off directing the respondents that the petitioner shall be paid interest at the rate of 7% per annum from the date of retirement till the actual payment is paid within a period of three months from today. This order has been passed in the presence of Shri Babu Ram Shukla, Advocate holding brief of Shri S.P. Tiwari, learned counsel appearing for respondent no.3."

5. Despite the petitioner having informed the respondents about the order of this Court dated 19.05.2023, they failed to comply the same and hence the petition for direction for implementation of the order dated 19.5.2023.

6. Preliminary objection has been taken by the learned counsel for the respondents that no writ petition would lie for the purpose of seeking implementation of the judgment of this Court.

7. Shri Yadav, learned counsel appearing for the petitioner has placed reliance on the Full Bench reference order of this Court in the case of Prayas Buildcon Pvt Ltd vs State of U.P. Throu Principal Secretary and Ors: 2022 AIR Ald 279, decided on 16.08.2022 to contend that the Full Bench of this Court has held that the writ petition seeking a direction to the authority concerned for compliance of the earlier order may be maintainable.

8. From perusal of the Full Bench judgment in the case of Prayas Buildcon Pvt Ltd (supra) it emerges that the Full Bench had been constituted on 3 issues of which one issue was as follows:- "ii) Whether the second Writ Petition No.8870 (MB) of 2020 filed by the petitioner is maintainable in view of the fact that the petitioner is seeking implementation of the judgment and order dated 17.05.2019 passed in Writ Petition No.12081 (MB) of 2009?"

9. Aforesaid issue has been answered by the Full Bench in the following words:- "Whether the second Writ Petition No.8870 (MB) of 2020 filed by the petitioner is maintainable in view of the fact that the petitioner is seeking implementation of the judgment and order dated 17.05.2019 passed in Writ Petition No.12081 (MB) of 2009?

34. A perusal of prayer (A) made in the writ petition in question shows that it was for a direction to the respondents to proceed with the conversion of property from leasehold to freehold in terms of earlier order passed by this Court on May 17, 2019 in the earlier writ petition filed by the petitioner. The same can be termed to be in the form of execution of earlier order passed by this Court.

35. Here, we are faced with a situation where no remedy as such has been provided in case the order passed by the Writ Court or an appeal arising therefrom is not complied with. Though, the aggrieved person can file an application for initiating contempt proceedings against the guilty person, however, that cannot be said to be a remedy for execution of the order as in the contempt proceedings, which are quasi criminal in nature for non compliance of any order, the person guilty can be punished with imprisonment and/or fine. The person in whose favour order has been passed cannot be left remediless, in case the same is not complied with in its true letter and spirit. He cannot be deprived of the fruits of litigation. In the circumstances, in our view, a writ petition seeking a direction to the authority concerned for compliance of the earlier order may be maintainable. In case, any alternative remedy is provided that may or may not be a complete bar for entertainment of such a writ petition in view of the settled position of law. In the case in hand, the fact remains that in Rule 11 of Chapter XXII of the High Court Rules, execution is provided only for recovery of cost and not for any substantive relief granted to the party concerned. The same is extracted below: "11. Transmission of order of costs for execution.- Where costs have been awarded by the Court in a Writ Petition or in a special appeal from an order passed on a writ petition, but have not been paid the person entitled to them may apply to the Court for execution of the order. The application shall be accompanied by an affidavit stating the amount of costs awarded and the amount remaining unpaid. The Court may direct the order to be send to the District Court of the district in which the order is to be executed. The order may be executed by such Court as it is a decree for costs passed by itself or be transferred for execution to any subordinate Court."

10. As the petitioner seeks compliance of the earlier order of this Court dated 19.05.2023 which has still not been complied with by the respondents as such keeping in view the Full Bench judgment of this Court in the case of Prayas Buildcon Pvt Ltd (supra) the writ petition is disposed of with a direction to the respondents No.2 & 3 to comply with the judgment and order dated 19.05.2023 in case of Asharfi Lal @ Asherfi Lal (supra) within a period of 3 weeks from the date of service of certified copy of this order. Order Date :- 5.3.2025 prateek PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench

1. Heard learned counsel for the petitioner, Shri Anand Dwivedi, learned counsel appearing for respondents No.1 and Ms Nidhi Singh, learned counsel appearing for respondents No.2 and 3.

2. With the consent of the parties, the matter is being decided finally.

3. Instant writ petition has been filed seeking following reliefs:- "(i) Issue a writ, order or direction in the nature of Mandamus commanding the Opposite Parties to implement the Judgment and Order dated 19.05.2023 passed in the Writ Petition No. 3711 of 2023 :Asharfi Lal @ Asherfi Lal vs Union of India Through Secretary Department of Telecommunication Ministry of Communication, New Delhi & 2 Ors. (ii) Issue any suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case. (iii)...."

4. Contention of the learned counsel appearing for the petitioner is that earlier the petitioner has approached this Court by filing Writ Petition No.3711 of 2023 In Re Asharfi Lal @ Asherfi Lal vs Union of India Through Secretary Department of Telecommunication Ministry of Communication, New Delhi & 2 Ors which was decided vide judgment and order dated 19.05.2023, a copy of which is Annexure-1 to the petition with following directions:- "Thus, the petition is disposed off directing the respondents that the petitioner shall be paid interest at the rate of 7% per annum from the date of retirement till the actual payment is paid within a period of three months from today. This order has been passed in the presence of Shri Babu Ram Shukla, Advocate holding brief of Shri S.P. Tiwari, learned counsel appearing for respondent no.3."

5. Despite the petitioner having informed the respondents about the order of this Court dated 19.05.2023, they failed to comply the same and hence the petition for direction for implementation of the order dated 19.5.2023.

6. Preliminary objection has been taken by the learned counsel for the respondents that no writ petition would lie for the purpose of seeking implementation of the judgment of this Court.

7. Shri Yadav, learned counsel appearing for the petitioner has placed reliance on the Full Bench reference order of this Court in the case of Prayas Buildcon Pvt Ltd vs State of U.P. Throu Principal Secretary and Ors: 2022 AIR Ald 279, decided on 16.08.2022 to contend that the Full Bench of this Court has held that the writ petition seeking a direction to the authority concerned for compliance of the earlier order may be maintainable.

8. From perusal of the Full Bench judgment in the case of Prayas Buildcon Pvt Ltd (supra) it emerges that the Full Bench had been constituted on 3 issues of which one issue was as follows:- "ii) Whether the second Writ Petition No.8870 (MB) of 2020 filed by the petitioner is maintainable in view of the fact that the petitioner is seeking implementation of the judgment and order dated 17.05.2019 passed in Writ Petition No.12081 (MB) of 2009?"

9. Aforesaid issue has been answered by the Full Bench in the following words:- "Whether the second Writ Petition No.8870 (MB) of 2020 filed by the petitioner is maintainable in view of the fact that the petitioner is seeking implementation of the judgment and order dated 17.05.2019 passed in Writ Petition No.12081 (MB) of 2009?

34. A perusal of prayer (A) made in the writ petition in question shows that it was for a direction to the respondents to proceed with the conversion of property from leasehold to freehold in terms of earlier order passed by this Court on May 17, 2019 in the earlier writ petition filed by the petitioner. The same can be termed to be in the form of execution of earlier order passed by this Court.

35. Here, we are faced with a situation where no remedy as such has been provided in case the order passed by the Writ Court or an appeal arising therefrom is not complied with. Though, the aggrieved person can file an application for initiating contempt proceedings against the guilty person, however, that cannot be said to be a remedy for execution of the order as in the contempt proceedings, which are quasi criminal in nature for non compliance of any order, the person guilty can be punished with imprisonment and/or fine. The person in whose favour order has been passed cannot be left remediless, in case the same is not complied with in its true letter and spirit. He cannot be deprived of the fruits of litigation. In the circumstances, in our view, a writ petition seeking a direction to the authority concerned for compliance of the earlier order may be maintainable. In case, any alternative remedy is provided that may or may not be a complete bar for entertainment of such a writ petition in view of the settled position of law. In the case in hand, the fact remains that in Rule 11 of Chapter XXII of the High Court Rules, execution is provided only for recovery of cost and not for any substantive relief granted to the party concerned. The same is extracted below: "11. Transmission of order of costs for execution.- Where costs have been awarded by the Court in a Writ Petition or in a special appeal from an order passed on a writ petition, but have not been paid the person entitled to them may apply to the Court for execution of the order. The application shall be accompanied by an affidavit stating the amount of costs awarded and the amount remaining unpaid. The Court may direct the order to be send to the District Court of the district in which the order is to be executed. The order may be executed by such Court as it is a decree for costs passed by itself or be transferred for execution to any subordinate Court."

10. As the petitioner seeks compliance of the earlier order of this Court dated 19.05.2023 which has still not been complied with by the respondents as such keeping in view the Full Bench judgment of this Court in the case of Prayas Buildcon Pvt Ltd (supra) the writ petition is disposed of with a direction to the respondents No.2 & 3 to comply with the judgment and order dated 19.05.2023 in case of Asharfi Lal @ Asherfi Lal (supra) within a period of 3 weeks from the date of service of certified copy of this order. Order Date :- 5.3.2025 prateek PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench