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Atmaram Kanoria & Ors. v. L.K.R Prasad & Ors.

Calcutta High Court
Jan 15, 1990
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Structured Summary of the Opinion (Contempt Petition concerning Building Plan Sanction)

Factual and Procedural Background

The petitioners are owners of premises No. 14, Ballygunge Park, Calcutta. They submitted building plans on or about August 26, 1987 to the Calcutta Municipal Corporation (the "Corporation Authorities") to demolish existing structures and construct a twelve‑storied residential building. The plans were conditionally accepted and thereafter various requisitions and objections were raised and addressed by the petitioners through revised plans.

Disputes persisted and the petitioners filed a writ petition (Matter No. 515 of 1989, Atmaram Kanoria v. The Calcutta Municipal Corporation) on January 24, 1989 seeking a direction to the Corporation to sanction their plans. The Trial Court stayed the Municipal Building Committee resolution and appointed a Special Officer (with an architect) to examine compliance; on the Special Officer's report the Trial Court allowed the writ and directed the Corporation to sanction the plans within three weeks.

The Corporation appealed; on May 18, 1989 this Division Bench disposed of the appeal after the petitioners (respondents in the appeal) gave an undertaking not to construct a mezzanine/shop in the northern side within the 5.9 metres height area, and directed the Corporation to sanction the revised plans "as expeditiously as possible and preferably within a period of two weeks from date" subject to payment of fees.

A copy of the order was served on May 22, 1989. After reminders and communications, the Corporation indicated in July/August 1989 that further requirements existed; petitioners complied and repeatedly requested sanction, but the sanction was not issued. While the matter was pending, on December 18, 1989 the Governor promulgated the Calcutta Municipal Corporation (Amendment) Ordinance, 1989 (the "Ordinance") inserting s. 398A into the Calcutta Municipal Corporation Act, 1980, which prohibited applications for buildings exceeding 13.5 metres in height for one year and declared pending or new applications for plans exceeding 13.5 metres to "stand rejected forthwith."

The petitioners filed this Contempt Petition on December 21, 1989, contending that withholding sanction contravened the Court's May 18, 1989 direction. The Court directed affidavits, heard the parties and issued an interim direction that if petitioners tendered the requisite fees (Rs. 1,30,088/-) the Competent Authority should accept them; the petition was finally disposed of by the Court's judgment delivered in open court.

Legal Issues Presented

  1. Whether the Corporation Authorities' failure to grant sanction within the time indicated in the appellate judgment amounted to contempt of the Court.
  2. Whether s. 398A (inserted by the Calcutta Municipal Corporation (Amendment) Ordinance, 1989) applies to and can operate to reject a pending application in respect of which a Court has already issued a final and binding direction to grant sanction.
  3. If s. 398A is invoked by the Corporation to deny sanction, whether that legislative provision can be used to avoid or reverse the effect of a binding judicial order.

Arguments of the Parties

Petitioners' Arguments

  • The petitioners contended that the Corporation was withholding sanction in contravention of the judgment of this Court dated May 18, 1989 which directed sanction of the revised plans.
  • They asserted compliance with the Corporation's requirements and that nothing more remained to be done except payment of fees, which had been tendered into the office of the City Architect.

Respondents' (Corporation Authorities') Arguments

  • In an affidavit by the Municipal Commissioner (who assumed charge on October 16, 1989) it was averred that processing, including examination of structural stability, had been completed and that the matter was placed before the Commissioner on December 9, 1989, but the Ordinance promulgated on December 18, 1989 now "seems to be standing in the way" of according sanction.
  • The Corporation's asserted legal position (pressed before the Court) was that s. 398A(2) of the Ordinance provided that any application for a plan exceeding 13.5 metres which was pending on the date of the Ordinance "shall stand rejected forthwith", and therefore there was no pending application on which the Court's direction could operate.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
East India Commercial Co. Ltd. Calcutta v. The Collector of Customs, Calcutta, AIR 1962 SC 1893 Supports the proposition that judicial decisions and directions of the High Court must be implemented by public authorities; relevance of obedience to judicial directions under supervisory powers. Referenced to underline that public authorities cannot ignore law declared by the High Court and must implement judicial decisions with due dispatch.
Baradakanta Mishra Ex‑Commissioner Of Endowments v. Shri Bhimsen Dixit, AIR 1972 SC 2466 Reinforces the point that administrative authorities must respect judicial directions and that failure to do so undermines the rule of law. Used with East India Commercial Co. to establish the obligation of authorities to comply with High Court directions and that contempt signifies wilful disregard of the Court's order.
D.S. Nakara v. Union of India, AIR 1983 SC 130 (at 143) Principle that the rule against retrospective operation is not automatically attracted merely because a statutory provision draws a requisite from a time antecedent to its enactment. Relied upon to support the Court's view that s. 398A operates prospectively as a law in force from the date of the Ordinance and that the provision rejecting pending applications is not necessarily retrospective in the forbidden sense.
Madan Mohan Pathak v. Union of India, AIR 1978 SC 803 Authority for the proposition that a statute cannot be used to negate or nullify a binding judicial order (mandamus) — legislature cannot in effect reverse a judicial verdict by ordinary enactment so as to abolish rights crystallised in a final judgment. Described as an authoritative Constitution Bench decision directly supporting the Court's view that s. 398A cannot be used to thwart the operation of the Appeal Bench's final order directing sanction.
Golak Nath v. State of Punjab, AIR 1967 SC 1643 Used to illustrate constitutional separation of powers; demarcation of legislative, executive and judicial functions. Invoked to support the principle that individual rights crystallised by judicial decisions cannot be taken away indirectly by legislative enactment without trenching on judicial power.

Court's Reasoning and Analysis

The Court proceeded in two main analytical strands: first, an assessment of whether the delay in granting sanction amounted to contempt; and second, an examination of the legal effect of s. 398A of the Ordinance vis‑à‑vis a final judicial direction to sanction.

On delay and contempt:

  • The Court found that avoidable delay had occurred in processing the application after the writ was issued and described the processing as "lackadaisical", observing that with due diligence the matter could have been finalised earlier. However, there was no evidence of deliberate conduct amounting to wilful disobedience.
  • The operative language of the appellate direction was to grant sanction "as expeditiously as possible and preferably within a period of two weeks". The Court noted that this was not an absolute fixed time‑limit but required implementation with "utmost expedition"; absent compelling reasons the time frame should have been honoured.
  • Because the conduct was not shown to be deliberate or wilful, the Court declined to proceed against the respondents for contempt based solely on delay.

On the legal effect of s. 398A (Ordinance):

  • The Court examined s. 398A closely. It observed that sub‑section (1) provided a prohibition on applying for plans exceeding 13.5 metres during the one‑year period, and sub‑section (2) declared pending or new applications for plans exceeding that height to "stand rejected forthwith". Sub‑section (3) preserved the right to apply afresh after the period.
  • The Court concluded that, on a plain reading, s. 398A operates prospectively from the date it came into force and is not necessarily retrospective merely because it addresses applications pending at the date of its commencement. The Court relied on D.S. Nakara for the approach to retrospective construction.
  • Critically, the Court noted that s. 398A contains no non‑obstante clause referring to judgments, orders or decrees of courts; it is not a validating statute enacted to cure defects pointed out in judicial decisions. The Court held that interpreting sub‑section (2) so as to defeat rights already recognised and obligations already incurred by a final judicial order would amount to the legislature exercising judicial power and would be invalid.
  • The Court applied the reasoning in Madan Mohan Pathak (Constitution Bench) to the present facts: where a right has crystallised and an obligation has been imposed by a final judgment (here, the Appeal Bench's order of May 18, 1989 directing sanction), a subsequent statute cannot be used to take away that right in an indirect fashion.
  • Accordingly, the Court held that s. 398A could not be invoked to prevent the Corporation from carrying out the final judgment directing sanction of the petitioners' plans; the provision was inapplicable to the case at hand insofar as it was relied upon to frustrate the Court's earlier order.

Holding and Implications

Holding: The Contempt Petition was disposed of with the Court concluding that there was no wilful contempt based on delay, but the Corporation Authorities were directed to implement the writ and issue sanction without further delay. The Court held that s. 398A of the Calcutta Municipal Corporation (Amendment) Ordinance, 1989 could not be pressed into service to avoid compliance with the final and binding judgment dated May 18, 1989.

Direct Effect / Orders:

  • The Corporation Authorities are bound to comply with the Appeal Bench's writ directing sanction and were ordered to implement that writ "in the course of the next week by issuing the sanction." The Court recorded that petitioners had supplied all requisites and fees had been paid into the City Architect's office.
  • The Contempt Petition was disposed of in terms of the Court's order directing immediate implementation; parties were to act on a signed copy of the minutes of the operative part of the judgment on the usual undertaking.

Broader Implications (as discussed in the opinion):

  • The judgment underscores the principle that public authorities must give effect to judicial decisions and cannot defeat or disregard final judgments by invoking subsequent legislative provisions that would, in effect, reverse judicial decrees. The Court relied on constitutional separation of powers principles and relevant precedents (notably Madan Mohan Pathak) to reach this conclusion.
  • The Court did not proceed to punish respondents for contempt based on delay because there was no evidence of wilful disobedience, but it affirmed the binding character of the earlier judicial order and mandated its immediate execution.

Note: This summary is strictly based on the content of the provided opinion and does not add information beyond the text of that opinion.

Show all summary ...

Per Chief Justice (Oral):— In order to appreciate the issues arising for decision in this Contempt Petition, it is necessary to set out the facts in some detail.

2. The petitioners are the owners of a property being land with superstructure bearing premises no. 14. Ballygunge Park, Calcutta. They intended to demolish the existing super-structures and to raise a twelve-storied residential building on the said premises. They, therefore, submitted the requisite sets of Building Plans for sanction to the Calcutta Municipal Corporation, hereinafter referred to as “the Corporation Authorities”, on or about August 26, 1987. The Building Plans were “accepted conditionally for further scrutiny” subject to certain conditions by the Corporation authorities. From time to time thereafter certain objections/requisitions were served upon the petitioners and they are stated to have been duly complied with by the sub-mission of revised Building Plans whenever necessary or required.

3. It is the case of the petitioners that the matter ultimately went up to the Municipal Building Committee which raised certain additional points and required certain further modifications being carried out in the Building Plans. In order to avoid dispute and delay, according to the petitioners, they submitted further revised Building Plans. Once again, however, the Municipal Building Committee raised further objections which were communicated to the petitioners. They thereupon intimated that the matters raised by the Municipal Building Committee had already been taken care of and that, if necessary, they were prepared to give registered undertakings not to make any construction on a portion of the ground floor within its 5.9 meters height.

4. Despite intimation given as aforesaid the Building Plans were not being sanctioned and that gave rise to a Writ Petition (Matter No. 515 of 1989 Atmaram Kanoria v. The Calcutta Municipal Corporation) moved by the petitioners on January 24, 1989 seeking the relief inter alia, in the nature of a direction to the Corporation authorities to forthwith sanction the Building Plans submitted by the petitioners upon their producing the permission and/or clearance certificate from the Urban Land Ceiling Authorities under the Urban Land (Ceiling and Regulation) Act, 1976 and without giving effect to the resolution passed by the Municipal Building Committee as communicated to them. The Trial Court passed an ad interim order on that day staying the operation of the resolution of the Municipal Building Committee as communicated to the petitioners and at the same time appointed a Special Officer with liberty to engage the services of an Architect chosen from out of the panel maintained by the High Court to assist in finding out whether the revised Building Plans submitted by the petitioners in respect of the proposed multi-storied building were in compliance with the Building Rules of the Calcutta Municipal Corporation. Certain further directions of an incidental nature were also issued. The Special Officer was directed to submit a report within ten days from date. The Special Officer submitted a report as directed and the matter was finally heard on February 7, 1989. The Trial Court found, upon scrutiny of the said report, that there could not be any objection on the part of the Corporation Authorities against sanctioning the Building Plans which were the subject matter of the Writ Petition. Accordingly, the Writ Petition was allowed and the Corporation Authorities were directed to sanction the Building Plans within three weeks from the date of communication of the order.

5. The Calcutta Municipal Corporation and others preferred an appeal against the decision which came to be finally disposed of on May 18, 1989 by this Division Bench. The material part of the judgment disposing of the appeal reads as follows:

“The writ petitioners, respondents nos. 1, 2 and 3 herein, undertake to this Court through their learned Counsel not to construct mezzaine floor and/or shop room in between the space covered by the proposed height of 5.9 metres on the northern side of the ground floor as per revised plans submitted by them to the appellants on September 8, 1988 concerning premises No. 14, Ballygunge Park, Calcutta, without the prior sanction of the appellants. The learned Counsel states that an undertaking on affidavit in the aforesaid terms will be filed by the respondents nos. 1, 2 and 3 within 24 hours. The undertaking given as aforesaid is duly accepted.

In view of the undertaking given in the aforesaid terms and duly accepted, the appeal does not survive and it stands disposed of accordingly. The appellants are, however, directed to accord sanction to the revised plans, submitted by the respondents nos. 1, 2 and 3 as referred to hereinabove as expedition as possible and preferably within a period of two weeks from date subject to payment of necessary fees.”

6. It is the case of the petitioners that a copy of the aforesaid order was served upon the Corporation Authorities on May 22, 1989. Since no compliance was made a reminder was sent to them on July 13, 1989. On July 26, 1989, the petitioners were informed that the case was placed before the Municipal Building Committee which recommended the grant of sanction subject to compliance of certain requirements mentioned in the said communication. On August 22, 1989, the petitioners addressed a letter to the Corporation Authorities pointing out that as per the orders passed by this Court nothing further was required to be done but, in order to maintain cordial relations, compliance of those further requirements was made and architectural and structural drawings were also filed. It was pointed out further that although all requirements had already been complied with the sanction was not received despite the time-bound directions issued by this Court. Nothing worth noticing happened even after the letter aforesaid was sent and the petitioners, therefore, complained once again on December 14, 1989, to the Corporation Authorities that the sanction of the Building Plans was being withheld in contravention of the order passed by this Court and requested that the sanction be accorded forthwith.

7. A development took pleace soon thereafter while the matter was still pending with the Corporation Authorities of which notice needs to be taken at this stage. On December 18, 1989, an Ordinance promulgated by the Governor of West Bengal was published in the Calcutta Gazette, Extraordinary, viz., West Bengal Ordinance No. IX of 1989.—The Calcutta Municipal Corporation (Amendment) Ordinance, 1989—hereinafter referred to as “the Ordinance”). The Ordinance came into force at once. Since the Corporation Authorities are taking shelter behind the provisions of the Ordinance in justification of not giving effect to the decision of this Court, it is necessary to refer to s. 2 of the Ordinance which is the only material provision of the said statutory instrument. Section 2 reads as follows:

“In the Calcutta Municipal Corporation Act, 1980, after s. 398, the following section shall be inserted:—

398A. (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, with effect from the date of coming into force of the Calcutta Municipal Corporation (Amendment Ordinance, 1989 (hereinafter referred to in this section as the said Ordinance) and for a period of one year from such date (hereinafter referred to in this section as the said period), no person shall apply for sanction of any plan to erect a building exceeding thirteen and a half metres in height.

(2) Any application for sanction of any plan to erect a building exceeding thirteen and a half metres in height, submitted by any person—

(a) before the coming into force of the said Ordinance and lying pending for such sanction on the date of coming into force of the said Ordinance, or

(b) at any time during the said period, shall stand rejected forthwith.

(3) Any person, whose application for sanction of any plan to erect a building exceeding thirteen and a half metres in height stands rejected under sub-s. (2), may apply afresh for such sanction in accordance with the provisions of this Act and the rules made thereunder on the expiry of the said period.

(4) Any fee paid by any person along with his application for sanction of any plan to erect a building exceeding thirteen and a half metres in height which stands rejected under sub-s. (2), shall, at his option, be refunded to him or adjusted towards the fee payable by him for fresh application for such sanction under sub-s. (3).”

8. On December 21, 1989 the petitioners moved this Contempt Petition praying that Rule Nisi be issued calling upon the respondents herein and each of them to show cause why they and each of them should not be committed to prison or be otherwise dealt with and/or punished for deliberate and wilful violation and utter disregard of the directions issued in the judgment rendered by this Court on May 18, 1989. The Court directed the filing of affidavits and ordered the matter to appear on January, 12, 1990. On the last-mentioned date, an interim direction was issued that if a sum of Rs. 1,30,088/-, being the amount of requisite fees worked out by the Corporation Authorities, is tendered by the petitioners, the Competent Authority of the Municipal Corporation shall accept the same and the case was adjourned to January 15, 1990. The aforesaid interim direction was issued after the case was fully heard on that day. The case is now being disposed of by delivering the judgment in Court to-day.

9. In the affidavit-in-opposition filed on behalf of the respondents by Lala Rajkishore Prasad, the incumbent Municipal Commissioner of Calcutta Municipal Corporation, who assumed charge of the said office on October 16, 1989, it has been averred that although sanction could not be accorded within the time indicated in the operative part of the judgment rendered on May 18, 1989, “the processing including examination of structural stability and other aspects regarding the Building Plan has been completed”. The matter is stated to have been ultimately placed before him on December 9, 1989 but before he could take any decision in the matter, the Ordinance was promulgated debarring sanction of any plan to erect a building exceeding thirteen and a half metres in height within the municipal limits of Calcutta and providing further that any such Building Plan submitted before coming into force of the said Ordinance and lying pending should stand rejected forthwith. In terms it is averred in the affidavit that the said Ordinance “now seems to be standing in the way of according the requisite sanction’.

10. Having perused and considered the affidavit, we find that after the writ was issued by this Court avoidable delay has indubitably taken place in the processing of the case for the grant of sanction to the Building Plans. We cannot help observing that the matter has been processed in a lackadaisical manner and that with due diligence it could have been finalised much earlier. However, there is no evidence to conclude that this conduct was deliberate. Besides, the direction of the Court was to grant sanction “as expeditiously as possible and preferably within a period of two weeks from date”. There was thus no specific time-limit although the direction in its true spirit required the implementation with utmost expedition and, except for compelling reasons, within the time frame indicated in the order. We find, therefore, that there is no wilful or deliberate disregard of that part of the judicial verdict and do not propose to proceed against the respondent in the exercise of Contempt Jurisdiction so far as delayed action is concerned.

11. It is pertinent to point out in this connection that Contempt of Court is disobedience to the Court, by acting in opposition to the authority, justice and dignity thereof. It signifies a wilful disregard or disobedience of the Court's order; it also signifies such conduct as tends to bring the authority of the Court and the administration of law into disrepute (see Oswald's Contempt of Court (1910) Edn. Pages 5 and 6). It is well-settled that an administrative tribunal or authority cannot ignore the law declared by the highest Court in the State or its judicial directions. Under article 215, every High Court shall be a court of record and shall have all the powers of a such court including the power to punish for contempt of itself. Under Article 226, it has a plenary power to issue orders or writs for the enforcement of fundamental rights and for any other purpose to any person or authority including in appropriate cases any Government within its territorial jurisdiction. Under Article 227, it has superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. If an administrative tribunal or authority over which the High Court has superintendence or power of judicial review can ignore the law declared by that court or neglect or refuse to obey its judicial order, all subordinate courts can equally do so, for the reason that there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision and judicial review conferred on a superior tribunal that all the tribunals and authorities subject to its jurisdiction should conform to the law laid down by it as well as its directions. Such obedience would also be conducive to their smooth working; otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer. (See East India Commercial Co. Ltd. Calcutta v. The Collector of Customs, Calcutta AIR 1962 SC 1893 and Baradakanta Mishra Ex-Commissioner Of Endowments v. Shri Bhimsen Dixit., AIR 1972 SC 2466). It needs no reiteration, therefore, that judicial decisions and directions of this Court must be implemented by Public Authorities with due regard and dispatch. Unless there is such awareness in the mind of Public Authorities, the Constitutional scheme entrusting different functions to the three organs of the State within demarcated fields will fail and the rule of law will be seriously endangered by reason of the fact that public respect for Courts will be undermined and even private litigants would not care to abide by the decisions and orders of Court.

12. The affidavit-in-opposition discloses that the Corporation Authorities are pleading the Ordinance promulgated on December 18, 1989 as coming in their way in granting sanction to the Building Plans in question despite the direction of this Court. This was also the precise ground submitted for our consideration on their behalf at the hearing of the petition and we were requested by both the sides to decide the issue. The attention of the Court was drawn to sub-s. (2) of s. 398A brought on the Statute Book by the Ordinance which inter alia provides that any application for sanction of any plan to erect a building exceeding thirteen and a half metres in height, submitted by any person before the coming into force of the said Ordinance and lying pending for such sanction on the date of coming into force of the Ordinance, shall stand rejected forthwith. The submission was that the Building Plans in question are in respect of a building having a height of 35.80 metres and that in view of the fact that the application for sanction of such Plans was pending on the date of coming into force of the said Ordinance, such application stood rejected forthwith by virtue of the legislative fiat and that there was thus no pending application upon which sanction could be granted as directed by the Court. Unless the validity of this stand is examined the petition cannot be disposed of Besides a fresh litigation may in all reasonable probability ensue. In order to effectively decide this case and to avoid multiplicity of proceedings and in light of the tact that the parties want a decision on the issue, we consider it expedient to examine the validity of the aforesaid stand in the present proceeding.

13. Section 2 of the Ordinance extracted heraeinabove adds s. 398A in the Calcutta Municipal Corporation Act, 1980 after s. 398. Sub-section (1) of the new section opens with the words “Notwithstanding anything contained in this Act or in any other law for the time being in force” and goes on to provide that with effect from the date of coming into force of the Ordinance and for a period of one year from such date, no person shall apply for sanction of any plan to erect a building exceeding thirteen and a halt metres in height. In sub-s. (2) it has been provided that any application for sanction of any plan to erect a building exceeding thirteen and a half metres in height, submitted by any person before the coming into force of the Ordinance and lying pending for such sanction on the date of coming into force of the Ordinance or made at any time during the said period, shall stand rejected forthwith. Sub-section (3) provides that any person, whose application for sanction of any plan to erect a building exceeding thirteen and a half metres in height which stands rejected under sub-s. (2) may apply afresh for such sanction in accordance with the provisions of the Act and the rules made thereunder on the expiry of the said period.

14. The object underlying s. 398A apparently is merely to suspend, for a period of one year from the date of coming into force of the Ordinance, the right to apply for and/or obtain, in accordance with law sanction of a plan to erect a building exceeding thirteen and a half metres in height, and not to annul such right altogether and/or for ??? to come. In order to achive this object, a three-fold provision has been made in the section: first, there is a prohibition against a person applying for such sanction during the aforementioned period; secondly, there is to be a rejection forthwith by the operation of Statute of any pending application for such sanction submitted before the coming into force of the said Ordinance or made at any time during the said period and, thirdly, the right to make a fresh application for such sanction after the expiry of such period is preserved in case the original application stood statutorily rejected. Since this section now holds the field the right to apply for and/or obtain sanction for erection of a building is governed by its provisions as from the date of coming into force of the Ordinance. In other words, it is the law in force as from that day and it will remain operative during the specified period. All pending applications and new applications made during the said period will have to be decided in accordance with the provisions of the said section subject to our holding hereafter regarding cases covered by judicial decisions. On a plain reading of the section, therefore, it is clear that it operates prospectively. Merely because it is provided that all pending applications made before the coming into force of the Ordinance shall stand rejected forthwith, it cannot be said that part of the section is retrospective. The rule against retrospective operation is not necessarily and in all cases attracted when the statute is applied to the fact situation prevailing since prior to its application. It is settled law that the rule against retrospective construction is not attracted to a statute merely because a part of the requisites for its action is drawn from a time antecedent to its passing (see D.S Nakara v. Union of India, AIR 1983 SC 130 at 143). If that were not so, every statute will be presumed to apply only to persons born and things coming into existence after its enactment or operation. Such application of the rule may well result in virtual nullification of a large number of statutes.

14A. The other thing worth ??? is that there is no non-obstance clause in the said section referring to any judgment, order or decree of a Court. The legislation is obviously not a validating Statute following upon the invalidation of any law by the removal of defect pointed out by such judgment. There is also nothing in the enactment which can be seen as setting at naught even otherwise, the effect of any judgment rendered by a Court and the binding character of the directions therein issued. Indeed, any interpretation of subs. (2) of s. 398A, which trenches upon the individual rights recognised or conferred by a judgment which has become final and binding, would render the provision invalid on the ground that it tantamounts to reversing the judicial verdict in the purported exercise of judicial power which the legislature does not possess or exercise. It is settled law that the Constitution of India has brought into existence different constitutional entities and created three major instruments of power, viz., the Legislature, the Executive and the Judiciary. The field of operation of each of these major instruments and their respective jurisdiction is demarcated minutely and each organ is expected to exercise its respective power without overstepping limits (see Golak Nath v. State of Punjab AIR 1967 SC 1643 at 1655). The individul rights which have crystallised and the obligations which have been incurred as a result of the binding character of a judicial decision cannot, therefore, be taken away in an indirect fashion by enacting a provision like sub-s. (2) as interpreted by the Corporation Authorities.

15. Upon a true construction of s. 398A and, more particularly, sub-s. (2) thereof, in a proper perspective, there is no manner of doubt, that it is not attracted on the facts and in the circumstances of the present case. The application for sanction of the Building Plans was made long before the said Section was enacted and came into force. The protracted processing of such application without any effective outcome gave rise to a Writ Petition instituted in this Court in which a direction was issued by the Trial Court to the Corporation Authorities to sanction the Building Plans submitted by the petitioners. An appeal carried by the Corporation Authorities against the said judgment failed and the Appeal Bench of this Court also issued a direction to accord sanction to the revised Building Plans submitted by the petitioners. The said judgment has become final and binding on the parties since the remedy by way of an appeal or review has not been availed of. The right to obtain sanction was recognised and the obligation to grant it was incurred thus by the judgment of the Appeal Bench which still stands. The said right as well as the corresponding obligation acquired and incurred accordingly cannot be disregarded or ignored by invoking the aid of sub-s. (2) of s. 398A which is inapplicable in such cases. Such right and/or obligation cannot and is not intenden to be taken away by sub-s. (2) of s. 398A.

16. There is an authoritative pronouncement of a Constitution Bench of the Apex Court in a comparable case, Madan Mohan Pathak v. Union of India AIR 1978 SC 803 which supports the view which is being taken by us.

17. The Life Insurance Corporation Act, 1956, which established the Life Insurance Corporation, hereinafter referred to as “the LIC”, confers power on the LIC under s. 49 to make regulations providing, inter alia, for the terms and conditions of service of its employees. Regulation 58 of the Life Insurance Corporation (Staff) Regulations, 1960, provided at the material time that the LIC may, subject to such directions as the Central Government may issue, grant non-profit sharing bonus to its employees and the payment thereof, including conditions of eligibility for the bonus, shall be regulated by instructions issued by the Chairman from time to time.

18. On January 24, 1974, a Settlement was reached between the Life Insurance Corporation and four different associations of its employees covering all Class III and Class IV employees. The Settlement, which was binding on the parties under s. 18(1) of the Industrial Disputes Act, 1947, provided for various matters including payment of annual cash bonus to those classes of employees at the rate of 15% of the annual salary actually drawn in the financial year to which the bonus relates. The Settlement was to be effective from April 1, 1973 and was to remain operative upto March 31, 1977. The Settlement was approved by the Central Government and bonus was paid as therein provided for the first two years, that is, the years ended March 31, 1974 and March 31, 1975.

19. The Payment of Bonus (Amendment) Act, 1976, which was brought into force with retrospective effect from September 25, 1965, curtailed the right to bonus in industrial establishments. Although the said Act was not applicable to the LIC, a policy decision was taken by the Central Government that employees of establishments not covered by the said Act also would not be eligible for payment of bonus but ex gratia payment in lieu of bonus as may be determined by the Central Government would be made subject to a maximum of 10%. This policy decision became applicable to the LIC and it was advised accordingly by the Central Government. The LIC, therefore, issued instructions to all its offices not to make payment by way of bonus despite the Settlement reached on January 24, 1974 until further instructions.

20. The All-India Insurance Employees' Association and others thereupon filed a Writ Petition in this High Court seeking a writ directing the LIC to act in accordance with the terms of the said Settlement and not to refuse to pay cash bonus to Class III and Class IV employees for the financial year ended March 31, 1976. By a judgment rendered on May 21, 1976, a learned Single Judge of this Court allowed the Writ Petition and issued a writ in terms of the aforesaid prayer. A Letters Patent Appeal preferred by the LIC against the said judgment was not pressed before the Appeal Bench in view of the fact that the Life Insurance Corporation (Modification of Settlement) Act, 1976, hereinafter referred to as “the Modification Act”, was enacted meanwhile on May 29, 1976 which, according to the LIC, made it unnecessary for them to proceed with the appeal. The result was that the judgment of the learned Single Judge remained intact.

21. Section 3 of the Modification Act, in substance provided that notwithstanding anything contained in the Industrial Disputes Act, 1947, the provisions of the Settlement in question in so far as they related to the payment of annual cash bonus to Class III and Class IV employees at the rate of 15% of the annual salary shall not hare any force or effect and shall not be deemed to have had any force or effect on and from April 1, 1975. Since the plain effect of the Modification Act was to deprive Class III and Class IV employees of the annual cash bonus to which they were entitled under the Settlement reached on January 24, 1974 for the financial years commencing on and from April 1, 1975 and April 1, 1976, the constitutional validity there of was challenged in a Writ Petition (M.M Pathak's case) filed in the Supreme Court by two of the Associations.

22. Apart from the constitutional validity of the Modification Act, one of the contentions urged in the said Writ Petition was that since this Court had by its judgment issued a Writ directing the LIC to pay annual cash bonus to Class III and Class IV employees for the financial year commencing from April 1, 1975 as provided by the Settlement and since the said judgment had become final by reason of withdrawal of the Letters Patent Appeal, the LIC was bound to obey the Writ and to pay such annual cash bonus in accordance with the terms of the Settlement and the enactment of the Modification Act did not have the effect of absolving the Life Insurance Corporation from its obligation to carry out such Writ. This contention found favour with the majority of four out of seven Hon'ble Judges constitiuting the Constitution Bench, the other three Hon'ble Judges declining to express any opinion on the effect of the judgment of this Court. Bhagwati, J. as he then was, who spoke for himself and Krisnna Iyer and D.A Desai JJ., observed at page 817:

“Here the judgment given by the Calcutta High Court, which is relied upon by the petitioners, is not a mere declaratory judgment holding an impost or tax to be invalid, so that a validation statute can remove the defect pointed out by the judgment amending the law with retrospective effect and validate such impost or tax. But it is a judgment giving effect to the right of the petitioners to annual cash bonus under the Settlement by issuing a Writ of Mandamus directing the Life Insurance Corporation to pay the amount of such bonus. If by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous, the remedy may be by way of appeal or review, but so long as the judgment stands, it cannot be disregarded or ignored and it must be obeyed by the Life Insurance Corporation. We are, therefore, of the view that, in any event, irrespective of whether the impugned Act is constitutionally valid or not, the Life Insurance Corporation is bound to obey the Writ of Mandamus issued by the Calcutta High Court……………”

23. Beg, C.J, who delivered a separate but concuring judgment, after pointing out the “hurdle in the way” of the petitioner's claim based on Article 19(1)(f) of the Constitution, which was that the Modification Act was passed during the emergency, observed at pp. 809 and 810:

“The object of the Act was, in effect, to take away the force of the judgment of the Calcutta High Court recognising the Settlement in favour of Class III and Class IV employees of the Corporation. Rights under that judgment could be said to arise independently of Article 19 of the Constitution. I find myself in complete agreement with my learned brother Bhagwati, J. that to give effect to the judgment of the Calcutta High Court is not the same thing as enforcing a right under Article 19 of the Constitution. It may be that a right under Article 19 of the Constitution becomes linked up with the enforceability of the judgment, Nevertheless, the two could be viewed as separable sets of rights. If the right conferred by the judgment independently is sought to be set aside, s. 3 of the Act, would, in my opinion, be invalid for trenching upon the judicial power.

I may, however, observe that even though the real object of the Act may be to set aside the result of the mandamus issued by the Calcutta High Court, yet, the section does not mention this object at all. Probably this was so because the jurisdiction of a High Court and the effectiveness of its orders derived their force from Article 226 of the Constitution itself. These could not be touched by an ordinary Act of Parliament. Even if s. 3 of the Act seeks to take away the basis of the judgment of the Calcutta High Court, without mentioning it, by enacting what may appear to be a law, yet, I think that where the rights of the citizen against the State are concerned, we should adopt an interpretation which upholds those rights. Therefore, according to the interpretation I prefer to adopt, the rights which had passed into those embodied in a judgment and become the basis of a Mandamus from the High Court, could not be taken away in this indirect fashion”.

24. The principle and reasoning underlying the decision in Pathak's case apply with greater force on the facts and in the circumstances of the present case and fully support the view which we have hereinabove taken with respect to the true scope and effect of s. 398A and its impact on the Writ issued by the Appeal Court by its judgment rendered on May 18, 1989.

25. For the foregoing reasons, in our opinion, the newly added s. 398A cannot be pressed into service in the present case for not carrying out the Writ issued by this Court in its judgment rendered on May, 18, 1989, which has become final and binding on the parties. The Corporation Authorities are bound to comply with such Writ and that too without any further delay on their part. It may be clarified that the learned Counsel for the Corporation Authorities stated that nothing more is required to be done by the petitioners before the sanction can be granted. All requisites have been supplied and the amount which is required to be paid as fees has already been paid into the office of the City Architect. We, therefore, direct the Corporation Authorities to implement the Writ in the course of the next week by issuing the sanction. The Contempt Petition is disposed of in terms of the foregoing order.

All parties to act on a signed copy of the minutes of the operative part of this judgment on the usual undertaking.

Ajit Kumar Sen Gupta, J.:—I agree.

Application disposed of with direction on the Corporation Authorities.