ORDER
S.J. Mukhopadhaya, J.
1. In both cases, as similar orders both dated 25th May, 2001 issued by the Assistant Engineer, Eastern Railway. Barkakana (Assistant Engineer for short), are under challenge, they were heard together and are being disposed of by this common order.
2. The petitioner-Radheyshyam Agarwal of CWJC No. 2127 of 2001 has challenged the order, contained in letter dated 25th May, 2001, whereby and whereunder, the Assistant Engineer, giving reference of an order passed by this Court on 31st August. 1999 in CWJC No, 3153 of 1998 (R), asked the petitioner-Radheyshyam Agarwal to vacate the land, in question, as per High Court’s order.
3. The petitioner-Babulal Sharma of CWJC No. 2135 of 2001 has also challenged the similar order, contained in letter dated 25th May, 2001 issued by the same Assistant Engineer, wherein giving reference of an order passed by this Court on 31st August, 1999 in CWJC No. 3152 of 1998 (R), the petitioner-Babulal Sharma has been asked to vacate the land, in question, as per High Court’s order.
4. The language of both the cases is common and as it is mentioned that the eviction is to be made as per Hon’ble High Court’s orders, the petitioners have assailed the same on the ground that the High Court never passed any order for eviction of petitioners and, in fact, orders amount to contempt of Court having given false statement in the notice and is against one or other order passed by the competent Court of law.
5. Admittedly, petitioner-Radheyshyam Agarwal earlier moved this Court in CWJC No. 3153 of 1998 (R) against a general order of eviction. It was brought to the notice of the Court that in an eviction proceeding, final order was passed against which petitioner preferred an appeal before the learned District Judge. Hazaribagh being Misc. Appeal No. 4 of 1992 which is pending and an order of stay has already been passed by the appellate authority. A Bench of this Court, vide order dated 31st August, 1999, taking into consideration the aforesaid fact, disposed of the writ petition with observations that the respondents shall not take any action against the petitioner-Radheyshyam Agarwal pursuant to the general notice, unless the appeal is dismissed.
6. In the present case of Radheyshyam Agarwal, the petitioner took specific plea that the Misc. Appeal No. 4/92 is pending in the Court of learned 1st Additional District Judge. Hazaribagh and the stay is continuing, but in spite of the same, the impugned notice issued on 25th May, 2001, giving reference of the Court’s order.
7. So far as petitioner Babulal Sharma of CWJC No. 2135 of 2001 is concerned, he assailed the general notice in CWJC No. 3152 of 1998 (R). In the said case, a Bench of this Court, vide order dated 31st August, 1999, taking into consideration the fact that the Respondents have not disputed the averments that this petitioner’s father was settled with 1000 sq. ft. of lands and constructed structure thereon, disposed of the writ petition on 31st August, 1999 on the basis of statement as was made in the counter affidavit.
8. It may be mentioned that the respondents in their counter affidavit took plea that earlier an eviction order had been passed, but the Court while took into consideration that the copy of the said order had not been annexed, nor details of such orders have been given, directed the respondents to supply a copy of the order passed in the eviction proceeding to the petitioner forthwith with liberty to petitioner to prefer appeal within ten days from the date of the receipt of the copy of the said order.
9. The grievance of the petitioner is that the authorities thereafter never supplied the copy of the original order of eviction and thereby prevented the petitioner to prefer any appeal. On the other hand, giving reference of the Court’s order, the impugned notice was issued on 25th May, 2001. He has made further grievance against a show cause notice issued on petitioner-Babulal Sharma by the Estate Officer-cum-Divisional Engineer (3). Eastern Railway, Dhanbad dated 2nd May, 2001, wherein giving a reference of fresh Case No. EL/ 1BRKA/2001, the petitioner has been asked to show cause as to why he be not evicted from the land measuring 4292 sq. ft. of which reference was made of this Court’s order dated 31st August, 1999, passed in CWJC No. 3152/98 (R).
10. This Court taking into consideration the aforesaid fact, allowed four weeks’ time to respondents to state as to why a suo modi contempt proceeding be not initiated against the Assistant Engineer who issued impugned notice, vide letter dated 25th May. 2001.
11. A supplementary counter affidavit has been filed in each of the case, as also a show cause, wherein the Assistant Engineer has taken plea that the notice issued on 25th
May, 2001 have been treated to be cancelled by the competent authority and information regarding the same had been given to the parties, vide letter dated 11th July, 2001.
12. Mr. Sahani, the counsel for petitioner-Redheyshyam Agarwal placed reliance on the supplementary counter affidavit and submitted that the officer has again made false statement. It was brought to the notice of the Court by rejoinder that the petitioner-Radheyshyam Agarwal is co-applicant with one Bishambhar Agarwal in Misc. Appeal No. 4/92, wherein the Court below passed order of stay.
13. The aforesaid submission seems to be correct and, prima facie, a case has been made out by the petitioner for initiation of proceeding for contempt against the concerned respondent.
14. Mr. A. Sahay, the counsel for Babulal Sharma submitted that the original order of 1990 was to be served on petitioner in terms with Court’s order dated 31st August, 1999 passed in CWJC No. 3152 of 1998 (R) forthwith, but it was not served on petitioner-Babulal Sharma till notice was issued on 22nd May, 2001 and has been served, for the first time, by enclosing the copy with the counter affidavit. He submitted that the aforesaid action on the part of the authorities also amount to wilful, deliberate disobedience of the Court’s order and requested to initiate proceeding.
15. Such submission made on behalf of the petitioner Babulal Sharma prima facie, seems to be correct and thereby, he has also made out a prima facie, case to initiate a proceeding for contempt against the concerned respondent/officer.
16. However, taking into consideration the submission made by the counsel for the respondents that they will not threat the petitioners for eviction till the matter is finally decided by the appellate Court, this Court is not inclined to proceed against the officers, including the Assistant Engineer for the present.
17. In the case of petitioner Radheyshyam Agarwal CWJC No. 2127 of 2001, the impugned notice dated 25th May, 2O01 having cancelled, the writ petition has become infructuous. Thus, no order is required to be passed in the said case.
18. So far as Babulal Sharma of CWJC No. 2135 of 2001 is concerned, he having not given opportunity to prefer appeal, against 1990 order is, given liberty to prefer appeal before the competent Court of law and, if any appeal is preferred by the said order within two weeks, enclosing photo stat copy of 1990 order as enclosed with the counter affidavit along with a petition for condonation of delay and a petition for stay of the original order, the authorities will not take any coercive steps against the petitioner-Babulal Sharma till the matter is decided by the appellate Court.
19. So far as the second proceeding initiated, vide order dated 2nd May, 2001, as contained in Annexure-4 is concerned, as the petitioner has been given liberty to prefer appeal, the respondents are prohibited to proceed with the said proceeding till final order is passed by the appellate Court in the appeal as may be preferred by petitioner-Babulal Sharma. It will be also open to the authorities to withdraw the proceeding initiated, vide Annexure-4 dated 2nd May, 2001, if they so choose. However, if petitioner-Babulal Sharma does not prefer any appeal against 1990 order within two weeks, the interim order as passed above, shall stand recalled.
20. The respondents are directed to be careful in future.
21. Both the writ petitions stand disposed of.
22. Writ Petitions disposed of.