Bolin Ch. Deori vs Housing And Urban Development ...
2021 Latest Caselaw 2502 Gua

                                                                     Page No.# 1/6

GAHC010146292020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : I.A.(Civil)/1755/2020

            BOLIN CH. DEORI
            S/O GAJAINAND DEURI, VILL. PUB SURAJ NAGAR, KAHILIPARA, P.O.
            DISPUR, GUWAHATI-19, DIST. KAMRUP (M), ASSAM.


            VERSUS

            HOUSING AND URBAN DEVELOPMENT CORPORATION LTD (HUDCO) AND
            2 ORS.
            REGIONAL OFICE, HOUSEFED COMPLEX, RUKMINIGAON, G.S. ROAD,
            GUWAHATI-22

            2:THE RECOVERY OFFICER NO. 1
             DEBTS RECOVERY TRIBUNAL
             GUWAHATI
             G. S. ROAD
             ULUBARI (NEAR HANUMAN MANDIR) GUWAHATI-07

            3:THE DEPUTY MANAGER (LAW)
             HUDCO
             REGIONAL OFFICE
             HOUSEFED COMPLEX RUKMINIGAON
             G.S. ROAD
             GUWAHATI 2

Advocate for the Petitioner   : MR K BHUYAN

Advocate for the Respondent :

             Linked Case : CRP(IO)/100/2019

            BOLIN CH. DEORI
            S/O. - GAJAINAND DEURI
            VILL. PUB-SURAJ NAGAR
                                                              Page No.# 2/6

KAHILIPARA
P.O. DISPUR
GUWAHATI-19
DIST. KAMRUP(METRO)
ASSAM.


VERSUS

HOUSING AND URBAN DEVELOPMENT CORPORATION LTD (HUDCO) AND
2 ORS.
REGIONAL OFFICE
 HOUSEFED COMPLEX
 RUKMINIGAON
 G.S. ROAD
 GUWAHATI-22.

2:THE RECOVERY OFFICER NO. 2

DEBTS RECOVERY TRIBUNAL
GUWAHATI
DR. B BARUAH ROAD
GUWAHATI-07.
3:THE DEPUTY MANAGER (LAW)

HUDCO
REGIONAL OFFICE
HOUSEFED COMPLEX
RUKMINIGAON
G.S. ROAD
GUWAHATI-22.
------------
Advocate for : MR K BHUYAN
Advocate for : appearing for HOUSING AND URBAN DEVELOPMENT
CORPORATION LTD (HUDCO) AND 2 ORS.


Linked Case : I.A.(Civil)/3461/2019

BOLIN CH. DEORI
S/O GAJAINAND DEURI
VILL. PUB SURAJ NAGAR
KAHILIPARA
P.O. DISPUR
GUWAHATI-19
DIST. KAMRUP (M)
ASSAM.
                                                                                  Page No.# 3/6


               VERSUS

           HOUSING AND URBAN DEVELOPMENT CORPORATION LTD (HUDCO) AND
           2 ORS.
           REGIONAL OFICE
            HOUSEFED COMPLEX
            RUKMINIGAON G.S. ROAD
            GUWAHATI-22

           2:THE RECOVERY OFFICER NO. 2
           DEBTS RECOVERY TRIBUNAL
            GUWAHATI
            DR. B. BARUAH ROAD
            GUWAHATI-07
            3:THE DEPUTY MANAGER (LAW)
           HUDCO
            REGIONAL OFFICE
            HOUSEFED COMPLEX RUKMINIGAON
            G.S. ROAD
            GUWAHATI 22
            ------------
           Advocate for : MR K BHUYAN
           Advocate for : MR. K BHATTACHARJEE appearing for HOUSING AND URBAN
           DEVELOPMENT CORPORATION LTD (HUDCO) AND 2 ORS.



                                    BEFORE
                     HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                           ORDER

Date : 25-10-2021

Heard Mr. AM Bhuyan, learned counsel for the applicant/petitioners in IA (Civil) 1755/2020 and IA(Civil) No. 3461/2019, which were both filed in CRP (I/O) No. 100/2019 which stood disposed off vide an order dated 5.4.2029 by this court.

2 I have also beard Mr. K Bhattacharjee learned counsel for the respondent.

3. Before taking the Interlocutory Applications for adjudication it would be relevant to mention that the petitioner had filed an application under Article 227 of the Constitution of India, whereby, a challenge was made to the recovery Page No.# 4/6

proceedings vide their impugned demand notices dated 09.10.2019 and 04.02.2019 and sought for stay of the recovery proceedings as an appeal was pending before the Debt Recovery Appellate Tribunal (Kolkata).

4. This court vide order dated 05.04.2019 had disposed of the said application under Article 227 of the constitution of India with a limited protection taking in account that there was an apprehension of immediate dispossession from the dwelling house, thereby, permitting the petitioner to approach the learned DRAT and till 24.04.2019, the possession of the petitioner over his dwelling house at Udalbakra was directed not to be disturbed. It is admitted by the learned counsel for the petitioner that the proceedings before the DRAT is presently pending and the DRAT is also in session of the matter as regards the challenge made to the order dated 08.08.2018 passed in OA No.01/2014. In spite of the disposal of the application under Article 227 of the Constitution of India, the applicant/petitioners filed two interlocutory applications before this court. One is I.A (Civil) No.3461/2019, whereby, a prayer was made to stay the recovery proceedings initiated by the respondent No.2 till pendency of the appeal No.254/2018 before the DRAT Kolkata and in the interim for a direction not to disposes the petitioner/applicant from the dwelling house at Udalbakra, Guwahati till the pendency of appeal i.e. Appeal No.254/2018 before the DRAT Kolkata.

5. This court vide order dated 6.11.2019, directed maintenance of status quo in respect to the properties mentioned in the application till 16.12.2019. Thereafter, the said order was directed to be continued from time to time by this court.

6. In IA (Civil) No.1755/2020, the petitioner/applicant sought for a direction not to attach the salary of the applicant/petitioner at Rs.20,340/- during the pendency of the appeal and also further prayed in the interim that the order dated 05.10.2020 in OA No. 1/2014 should be stayed. From the perusal of the orders passed by this court it reveals that there has been no affective orders passed in the said Interlocutory applications. Today both the applications have been listed before this court.

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7. It is a trite principle of law that by way of miscellaneous applications and/or Interlocutory applications it is not permitted to reopen a proceeding which has already culminated inasmuch as, the court which had exercised the jurisdiction and disposed of the matter has no jurisdiction to entertain interlocutory application as no proceedings were pending before it. The judgment of the supreme court rendered in the case of State of Uttar Pardesh vs. Brahm Dutt Sharma reported in 1987 (2) SCC 179 categorically holds at paragraph No. 10 that no miscellaneous application could be filed in the writ petition to revive proceedings in respect to subsequent events. Paragraph 10 of the said judgment is quoted herein below:-

.............

The High Court's order is not sustainable for yet another reason. Respondents' writ petition challenging the order of dismissal had been finally disposed of on 10.08.1984, thereafter, nothing remained pending before the High Court. No miscellaneous application could be filed in the writ petition to revive proceedings in respect of subsequent events after two years. If the respondent was aggrieved by the notice dated 29.1.1986 he could have filed a separate petition under Art. 226 of the Constitution challenging the validity of the notice as it provided a separate cause of action to him. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had no jurisdiction to entertain the application as no proceedings were pending before it. The High Court committed error in entertaining the respondent's application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is not open to the Court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning.

8. Apart from the above, it is also relevant herein to mention that the DRAT is in session of the appeal proceedings and the applicant/petitioner could have Page No.# 6/6

very well filed appropriate applications seeking interim orders. The petitioner/applicant, however, having not done so, he could not have filed the instant applications before this court when the DRAT Kolkata is already in session of the matter.

9. In view of the above, the question of entertaining the instant Interlocutory application does not arise in the facts and circumstances of the present case.

10. Mr. K Bhattacharjee further draws my attention to the fact that the petitioner is also not entitled to any relief in the instant proceeding on the ground of suppression of material facts. In that regard, he submits that he had filed a detailed affidavit in opposition to the I.A (Civil) No. 3461/2019 wherein, it has been mentioned on oath that the petitioner/applicant before approaching this court by way of I.A (Civil) 3461/2019 had filed a suit being Title Suit No.201/2019 along with an application under Order 39 Rule 1 & 2 seeking temporary injunction which was registered and numbered as Misc (J) Case No.336/2019. No reply has been filed denying such averments.

11. The constitutional courts under Article 226 as well as Article 227 of the Constitution of India are courts of equity and a person, who approaches the court, has to come with clean hands, meaning thereby, there should not be suppression of material facts. The fact that the petitioner had already initiated a proceeding before the Civil court is a material fact and the same have been suppressed. On this count also both the applications filed by the petitioner deserves to be dismissed.

12. In view of the above, both the Interlocutory applications stands rejected and dismissed and the recovery Officer is at liberty to initiate actions for recovery subject, however, subject to any order that may be passed by the DRAT Kolkata in the appeal pending before it.

JUDGE

Comparing Assistant