Civil Misc. Application No.
Hon'ble S.U.Khan, J.
Hon'ble Sudhir Agarwal, J.
Hon'ble D.V. Sharma, J.
1. This application has come up before us on being marked by
one of us on 13th September 2010 for placing it before the Bench.
2. Ramesh Chandra Tripathi, defendant no. 17 in O.O.S no. 4 of
1989 has preferred this application purporting to be under Section
89 C.P.C. He has requested for deferment of the pronouncement of
judgment and also to direct the parties to resolve the dispute
through mediation/conciliation/arbitration and/or in such manner as
this Court may deem fit.
3. It is said that after having gone through the Court's order
dated 27.07.2010 and having studied the entire scenario as also the
projected repercussions and apprehensions of violence, the
applicant earnestly and sincerely feels that the wish of this Court,
as found mentioned in the order dated 27.07.2010, needs be given
due respect so much so he treats as a command. Besides certain
media information as also para 89 of the judgment in Dr. M.
Ismail Faruqui vs. Union of India (1994) 6 SCC 360, the
applicant has also placed before us two orders of the Apex Court
dated 20.08.2010 in O.O.S no. 2 of 1988 appointing two
Advocates as mediators in a boundary dispute between the State of
Assam and State of Nagaland requesting them to function as
coordinators. Relying on the above, the applicant requests that this
Court should also direct the parties to resolve the dispute in
question in the same manner.
4. This application was filed without serving copy on the
learned counsels appearing for different parties in these cases.
Those counsels were permitted to receive copy of the application
from the office and thereafter they have filed objections to the
present application.
5. We have heard Sri Prashant Chandra, Senior Advocate
appearing for the applicant.
6. Reply submitted by Sri Jafaryab Zilani, learned counsel for
the Sunni Central Waqf Board, plaintiff in Suit-4 of 1989 (in short
"Suit-4"), Sri Hari Shankar Jain, Advocate, learned counsel for
defendant no.10 in Suit-4 and defendants no. 6/1 and 6/2 in Suit
No. 3 of 1989, Ms. Ranjana Agnihotri for defendant no. 20 in Suit-
4, Sri R.L. Verma for defendant no. 3 in Suit-4, Sri Madan Mohan
Pandey for plaintiff in Suit No. 5 of 1989 and Sri Ajay Pandey,
plaintiff of Suit No. 1 of 1989, is also supported with affidavit of
concerned parties. All the parties through their counsel have not
only seriously opposed this application but they have termed it as a
"serious mischief" on the part of the applicant and, therefore, have
requested this Court to reject it with exemplary costs.
7. At the outset Court would like to place it on record that a
dispute like the present one, if settled amicably between the parties,
it is a most welcome solution and we have no reason to discourage
it. There cannot be a quarrel with the proposition that a matter like
the present one if resolved with the consent of the parties, that
would be the best way of dealing with such matter. It is well
known that a Court of law decides a dispute and not a problem. We
would be the last one for not probing such an alternative redressal
forum and device provided there is some kind of sincerity, bona
fide and possibility, may be a very small ray of hope.
8. However, the record shows that here is a bunch of cases
which has history of several decades of its own and of
extraordinary nature. Efforts at different levels were made
rigorously, persistently and with due seriousness but in vain. Such
efforts were made not only by the parties concerned but at the level
of different authorities so much so, that even three Prime Ministers
at different times took serious initiative to find out whether the
dispute can be resolved amicably and peacefully and took all
possible steps in this direction. It is in furtherance thereof, even
legislation has twice come into being to enable the parties to reach
at an amicable solution. Several times the matter was taken to the
Apex Court also where, as we are informed, the Hon'ble Court did
observe for amicable settlement in the matter. A White Paper was
published by the Government of India and even a Presidential
Reference was made to the Apex Court. At the instance of the then
Prime Minister a very high power committee was constituted,
representatives of both the parties and several other persons were
allowed to participate in the meeting in presence of high officials
including the Minister of State in the Central Government but with
no result.
9. In 1993 a Parliamentary enactment came abating all the suits
connected with the matter and acquiring the property in suit but
when tested on the anvil of constitutionality, a Constitution Bench
of the Apex Court struck down the provision which abated all these
cases. That is how, we are required to decide these cases. The
Presidential Reference remained unanswered by the Constitution
Bench of the Apex Court. In its Judgment in Dr. Ismail Farooqui
(Supra) the Apex Court observed that here is a kind of dispute
which ought to be decided amicably and expressed its hope that the
parties is shall take steps in this direction. One and half decade
since then has passed but with no result. We may also notice that
while returning the Reference, the Apex Court observed that the
same cannot be answered since this was a matter in issue in suits
pending before this Court and the same have to be decided in the
light of the evidence adduced by the parties.
10. One of us (Hon'ble Sudhir Agarwal, J.) was nominated in this
Bench in September 2008 and thereafter final hearing commenced
on 29th September 2008. During the course of arguments
persistently the Court requested and advised the learned counsels to
find out some possibility of compromise in the matter as that would
be the best way of resolving the dispute but nothing came forward.
In a period of about eleven months the Court held actual hearing
for 75 days and throughout the said period this Court made such
efforts though also continued with the hearing since it did not
intend to give an impression to the parties that the Court is not
capable of hearing and deciding the matter or that the Court is
reluctant or that the Court otherwise does not want to decide the
matter even if there is no otherwise hindrance or obstruction in
such a course. The hearing could not conclude due to elevation of
His Lordship Hon'ble Mr. Justice S.R. Alam, J. as the Chief Justice
of Madhya Pradesh High Court. The Bench was reconstituted in
December 2009 and we commenced hearing on 11th Jan. 2010. Due
to reconstitution the learned counsels for the parties requested for
addressing the Court afresh. We had no option. They were justified
in such request. We tried to continue with the hearing on day to
day basis and in a period of about seven and half months the matter
was actually heard on 90 days. During this period also, unrelently,
we made efforts by requesting learned counsel for the parties to
find out the possibility of compromise, if any. Some of the parties
very bluntly told us that in the nature of the rights asserted by
them, scope of compromise is absolutely nil. None was ready to
part away even a single inch of land and said that it is for the Court
to decide but they cannot make any surrender whatsoever. When
we reserved the judgment on 26th July 2010, we made another
effort and passed order informing the parties that on 27th July 2010
we shall sit in Chamber to find out any possibility of resolving the
dispute amicably taking recourse of Section 89 CPC. For a few
ours on 27th July 2010 we made our efforts but the learned counsels
for parties very frankly and succinctly expressed their view that
there is no question of any settlement on their part in the matter and
due to the nature of the claim they assert it cannot be surrendered
to any extent. Faced with the situation but undeterred, still having
some hope we passed order on 27th July 2010, leaving it open to
the parties that before delivery of judgement if they find out any
possibility of compromise, they may approach the OSD requesting
for formation of Bench. This shows endeavour on the part of the
Judiciary at the highest level in the country as well as the Province,
in the last few decades. This also shows our anxiety of finding out
ways and means, if any, for amicable solution of the dispute during
the course of final hearing. But then the moot question is how long
it should/can continue. Is it ad infinitum. Here lies a clash with our
constitutional duty and obligation that whenever a dispute is
brought before a court of law it must be resolved expeditiously and
in any case within a reasonable time.
11. Before proceeding further we also find it appropriate to place
on record something about the conduct of the applicant. During the
course of argument the applicant was initially represented by a
counsel Sri Vireshwar Dwivedi and after his death by Sri
Ramakant Srivastava, Advocate. The applicant's counsel did not
advance any argument though hearing continued as already said,
for full 90 days. Though at one point of time he (Sri R.K.
Srivastava) informed the Court that he will address the matter on
merits but when his turn came, he did not appear. On 27.7.2010
also neither the applicant nor his counsel attempted to participate in
the proceedings which we initiated to find out any possibility of
settlement amicably. On 26.7.2010 when we reserved the
judgment, it was mentioned therein that the judgment shall be
pronounced in the second fortnight of September 2010. Thereafter
on 8.9.2010, i.e., after about a month and half we pronounced the
actual date for delivery of judgment, i.e., 24th September 2010. The
applicant kept silence over the matter throughout. In his application
neither he has averred that there is any possibility of settlement of
dispute outside the Court or otherwise nor it is mentioned that
during this entire period he took any step whatsoever persuading
the parties in suits to arrive at a settlement and/or probing the
possibility of the settlement of dispute amicably. He also had said
nothing about the manner and method whereby the dispute can be
attempted to be settled amicably.
12. We may also place it on record that all the three Judges of the
Bench were available at Lucknow till 8th September 2010 and two
of us were at Lucknow till 9th September 2010 but neither any such
request was made nor any application was moved at that time. It is
only when two of us sitting at Allahabad holding the Court thereat,
abruptly this application was filed on 13.9.2010 which has been
marked by one of us sitting singly on the same date directing to
register the application and place before the Bench for disposal.
13. Learned counsel for the applicant submitted that here is a
matter, the nature whereof is such that possibility of settlement
should be probed continuously and the Court should not feel tired
in making such efforts. Strangely, when we asked what he does
mean by 'continuously' or whether he suggests any time frame or
does he mean 'infinity', he could not reply at all. We are really
surprised to hear the wonderful argument by which he tries to
frighten a Court of law alleging apprehens on of violence if
judgment is delivered and thereby asking the Court not to decide a
case. The ways and means may be sophisticated but the end game
is clear. This is something what the people of India least expect
from a court of law and that too in a highest Court in a Province.
14. These matters are pending for the last six decades inasmuch
as the first suit was filed on 16th January 1950. After transfer of the
suits to this Court three Judges are continuously engaged for the
last more than 21 years. In the meantime, on several occasions the
matter has also travelled and consumed time of the Apex Court as
well. Is it what we have to deliver to our future generation that the
courts of law in India are not capable to decide cases for
generations and on a mere drop of a hat, an excuse is found to defer
the matter or adjourn the case? Are we here to find out ways and
means of deferring adjudication or to make adjudication? No case,
no dispute and no apprehension can be above the honest discharge
of constitutional function by an independent judiciary. The people
of India are already having serious complaints in abundance in
recent past against the judicial system of this country that it keeps
the matter lingering on for generations and attempt to decide cases
is minimal.
15. With the increased awareness, the people are getting
conscious of their right and do not hesitate in asserting it. If the
enforcement of rights get deferred not because of any slackness on
their part, but due to extremely slow pace or inaction on the part of
judiciary, their complaint cannot be levelled frivolous. In a system
of good governance, effective, independent judicial system is not
only the requirement but the real crux lies whether it can deliver
justice within reasonable time; whether it can decide the issue
expeditiously and before the patience of the people exhausts?
These are some of the aspects which need be seriously taken up by
the Bench and Bar both. This is the high time when not only the
Presiding Officers of the Court but also the members of the Bar
who are also officers of the Court should ponder over seriously and
find out the way in which cases may be decided expeditiously
instead of inventing the way for their deferment and adjournments.
The courts are meant for adjudication and not for adjournments or
deferment.
16. All the parties have seriously opposed this application and
have termed this as a mischievous attempt on the part of the
applicant in not allowing these cases decided even after six
decades, particularly when in the judicial proceedings i.e., during
the course of hearing learned counsel for the applicant did not
show any interest whatsoever except of ensuring his technical
presence. From the tenor of the application and also in the absence
of any ground, let alone good ground, the request for deferment of
pronouncement of verdict and that too just about ten days before
the date of its pronouncement, we are constrained to observe that it
lacks bona fide. Reference made to the observations of the Apex
Court in Dr. M. Ismail Faruqui (supra) is wholly misconceived
in the sense that the Apex Court did not suggest even for a moment
that the High Court should not decide the matter at all and prolong
hearing on the pretext of possibility of amicable settlement which
is certainly not to arrive at in this matter inasmuch as, all the
parties have made it very clear to us.
17. The applicant has referred to media reports apprehending
widespread violence and law and order situation. We do not intend
to make any comment thereon but our experience shows when the
Courts have not decided the things, such situation has arisen and
has resulted in creating unrest in the public to take the matter on
the road but not when any decision has been given by a court of
law. When the matter is decided, particularly, when the concerned
Court is not the last Court, the people have further remedy of
appeal etc. and, therefore, they patiently pursue such remedy
keeping their sentiments in low profile. In the above circumstances,
the things remain silent. However, the state of indecisiveness or
the impression that the Courts are reluctant to discharge their
function, create more serious unrest. For us it is not a matter of
simple adjudication but it is our constitutional function and we will
be failing in our duty if we fail to discharge such function within a
reasonable time. We are conscious of our duty as well as
constitutional obligation and shall not allow to weaken the faith of
the people of India which they have bestowed upon us.
18. Since the media reports have been referred we find it
appropriate to say a few words in this regard also. What we find of
late, the reports in media, whether electronic or print, are not
exactly correct. Instead of giving correct information to enlighten
the masses, incomplete and sometimes incorrect information is
given, more as sensation than communication of correct
information. The latter is the prime duty and obligation of a
responsible media. It appears that in some cases, the people try to
highlight a few words in a manner so as to create a sensation. The
casualty in such approach is correctness of the information. The
media people needs to exercise more care and caution and be more
precise. We ourselves have experienced that the information
regarding proceedings of this Court have also been conveyed to
masses, at some places, incorrectly. At times when the published
information relates to a serious situation or sensitive matter which
may likely to have serious repercussions, the responsibility of
media to accuracy and precision of information is much more.
Needless to give a recent illustration where we found such a miss
when there was a terrorist attack in Bombay. We do not intend to
check or restrain the independence of media world. It is they who
form the information limb of any country providing awareness and
entitlement to masses but then such information must be ensured to
be correct.
19. A Court passes an order sitting in the Court Room which is
normally known to the parties in the case and, therefore, used to
confine to few individuals. The masses acquire information about
the happenings in court through media. It is therefore, their utmost
and sacrosanct duty towards masses to whom they actually serve to
provide correct information so that it may avoid any possible
backlash or unwanted reaction particularly in a case like the one we
are faced with. Any inaccuracy in information is likely to cause
much more serious harm. We add no more on this. We hope and
trust that our observations shall be taken in correct perspective and
would give a message to powerful wing, which is commonly
known as the Fourth State. They shall exhibit their responsibility in
a more vigilant, alert, self conscious and self restraint manner so as
to subserve the people of this Country in a best possible and
responsible manner.
20. Before parting one more thing we intend to add. A lot of
news for the last few days are coming about the alleged
apprehension towards security of the members of this Bench and
the measures taken by the Government in this regard. We intend to
place on record and also want to tell everybody that neither we
have any apprehension nor we feel any kind of insecurity in
discharge of our solemn duty and obligation under the constitution
of India. We have full faith and confidence in people of this
country who are our real protectors and at whose strength of
confidence we work. It is not that we lack any confidence in the
Executive in maintaining law and order but the Judiciary of this
Country really derive its power from the confidence, the people of
India have in it, and not from the State's police power. It is
confidence of the people which provides us courage and boldness
in discharge of our duties independently, objectively and without
fear or favour. We have read in the newspapers that the Prime
Minister of the country has assured the people that The
Government is capable of meeting any contingency. We cannot
comment, but repose confidence in the Government since they are
the best Judge of whatever is required in maintaining law and order
and/or security of any individual or group of any individuals as the
case may be shall be taken care. The arrangement of security is the
responsibility of State and they are the authority to assess the
requisite measures and not any individual's own perception.
21. The discussions in respect to the application which we have
already made shows that this application lacks bona fide and is a
clear attempt to divert, deviate and also to create obstruction in
final disposal of this matter after more than six decades without
there being any reason whatsoever. Considering also the fact that
all other learned counsel appearing for different parties, whether
plaintiffs or defendants, have seriously opposed it, we have no
hesitation in rejecting this application. Considering the facts and
circumstances and also the fact that the applicant without any
lawful excuse or reason has filed this application, we hold this
attempt mischievous, and, therefore, he deserves to be imposed
exemplary cost.
22. For the reasons enumerated above, we reject this application
with exemplary costs we which we assess at Rs. 50,000/- (Rupees
Fifty Thousand only).
23. Registrar, High Court, Lucknow Bench, Lucknow is directed
to send a copy of this order forthwith to the Chief Secretary
Government of U.P., Lucknow, Secretary, Department of Home,
Government of India, New Delhi and to the Press Trust of India for
communication to various media channels as well as print media
people for information and compliance.
Dt/17.9.2010
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