Gujarat High Court
Patani Narayanbhai Govindbhai vs Kirankumar A Patel , The Secretary on 9 October, 2023
Bench: Ashutosh Shastri
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION (FOR CONTEMPT) NO. 1170 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 19047 of 2021
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PATANI NARAYANBHAI GOVINDBHAI
Versus
KIRANKUMAR A PATEL , THE SECRETARY
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Appearance:
MS DIMPLE A THAKER(6838) for the Opponent(s) No. 4
NOTICE SERVED BY DS for the Opponent(s) No. 1,2,3
MS DHARITRI PANCHOLI, AGP for the OPPONENT-STATE
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 09/10/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. By way of this contempt petition, applicants have alleged
that there is a willful defiance of the direction issued by learned
Single Judge in an order dated 23.3.2022 passed in Special Civil
Application No.19047 of 2021.
2. The case in brief posted before is that applicants were
appointed as Junior Clerks in the year 2015 and on completion
of two years, i.e. in 2017, all applicants became eligible for
appearing in Lower Level Departmental examination and on
account of question paper-5 and its syllabus was not decided by
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department right from 2015 till 2021, examination could not be
conducted from 2015 till 2021. According to applicants, even
forms for examination were already available with the
respondents, but it was not sent on time during the year 2021
and as such, applicants could not appear in the examination
conducted in March 2021. It is only on account of captioned writ
petition and the judgment which came to be passed, the
department conducted Lower Level Departmental examination,
and the applicants passed the said Lower Level Departmental
examination in the first attempt itself, however promotion to the
post of Senior Clerk was ordered in October 2022 without giving
effect from 2020 and provisional list was prepared on 13.6.2023,
wherein also seniority was not considered from the date of
eligibility, i.e. 2020, which according to the applicants, is
directly amounting to contempt of the judgment passed by
learned Single Judge dated 23.3.2022, as such present contempt
petition.
3. Pursuant to notice issued by the Coordinate Bench of this
Court on 21.7.2023, respondent authority has submitted
affidavit-in-reply on behalf of respondent No.1 and deponent
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Zonal Officer and Superintending Engineer, Ahmedabad
Irrigation Project, Ahmedabad Circle by pointing out that there
is no willful disobedience of the order or direction passed by the
Hon'ble Court. In addition to this, Further Affidavit has also
been submitted by respondent No.2, whereby more clarification
is submitted to point out that there is no willful disobedience of
the direction issued by learned Single Judge in an order dated
23.3.2022 and as such requested to drop the proceedings. Since
no rejoinder is submitted nor any request is made, hearing of
the contempt petition was taken up upon request of learned
advocate appearing for the applicants and learned Assistant
Government Pleader since pleadings have been completed.
4. Learned advocate Ms. Dimple A. Thaker appearing on
behalf of applicants has submitted that there is a clear violation
of the order passed by learned Single Judge of this Court dated
23.3.2022. It has been submitted that not only seniority is
protected, which otherwise ought to have been considered with
effect from 2020, even promotion to the post of Senior Clerk
was ordered in October 2022 and not with effect from 2020
though there is a clear direction issued by the Court and as such
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action on the part of the respondent authority is clear in conflict
with the decision delivered by the Court.
5. Learned advocate Ms. Thaker has submitted that this
order which has been passed by learned Single Judge is passed
after extensive hearing and after considering every
circumstance placed before the Court and detailed order is
passed on 23.3.2022 and still considerable long time has
elapsed, according to her, there is disobedience committed by
not observing the directions in its true letter and spirit. By
referring to paragraphs 14 and 15, a contention is raised that
non-compliance is clearly visible, accordingly appropriate steps
be taken against the erring officers/ authority under the
provisions of the Contempt of the Courts Act. Ms. Thaker has
further submitted that though there is a clear observation made
by learned Single Judge that upon completion of two years,
applicants- petitioners became eligible to appear in the
departmental examination in the year 2017, but it is only on
account of non-conducting of examinations at relevant point of
time, applicants were put to jeopardy and this fact has also been
clearly noticed by learned Single Judge and as such, the order is
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passed directing the authority as mentioned in para 15 of the
order. It has also been clearly observed by learned Single Judge
in para-12 that examinations were held in March 2021, but
details were not sent in time and as such, petitioners could not
appear in the departmental examination of March 2021. Hence,
by issuing appropriate directions, petition was allowed and this
order having not been observed, a clear case is visible which
may attract the provisions of the Contempt of Courts Act and as
such, requested to take an appropriate action as prayed for.
6. At this stage, learned advocate Ms. Thaker has submitted
that though a circular was pointed out before learned Single
Judge at the time when hearing took place and by virtue of the
circular also, applicants were entitled and as such rightly
directions were issued upon the authority. Of-course, she has
candidly admitted that such reference of circular is not borne
out from the order and at this stage, she has no such copy of
said circular and as such, various attempts were made to drag
on the hearing by asking time under the guise of said circular.
However, since the same is objected, we deemed it proper to
continue with the hearing since facts are evidently made clear
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from the pleadings.
7. Learned Assistant Government Pleader appearing on
behalf of respondent authority has drawn our attention to the
affidavit-in-reply and raised a defense that conjoint effect of the
rule of relevant Rules, namely Gujarat Civil Services (condition
of Services relating to Departmental Examination (General)
Rules 2015, petitioners were not entitled to appear in
examination immediately upon completion of two years period
from date of appointment and apart from that, the directions if
to be looked into, are not in any case violated by the respondent
authority and therefore, bonafide interpretation of Rules which
is not permitting the case of the applicants to be considered in
absence of any positive direction, it is not open for the
applicants to contend that any contemptuous act is committed
by the authority. By referring to the detailed affidavit which has
been filed in later point of time, affirmed on 6.10.2023, learned
Assistant Government Pleader has referred to paragraphs 14
and 15 of the order passed by learned Single Judge and thereby
contended that seniority no-doubt is taken care of by the
authority and upon instruction of the officers who are present in
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the Court has submitted that their seniority would be protected
with effect from 2020 and further it has been assured that
directions if not observed, same will be taken care of and
process will be completed within a period of four weeks as
approval from various departments is awaiting and such
compliance would be subject to outcome of Letters Patent
Appeal which has been filed against the order passed by learned
Single Judge and by tendering unconditional apology, it has
been reiterated that no clear case of contempt is made out by
the applicants and as such contempt petition may be disposed
of.
8. In addition thereto, it has been submitted that if there is
any confusion prevailing as per the applicants, then applicants
are at liberty to move an appropriate application for seeking
clarification, but certainly when their seniority is being
protected, as assured, from the year 2020, there is hardly any
case made out to initiate action against the authority. Looking
to the law laid down by Hon'ble Apex Court in recent past in
respect of jurisdiction of contempt of Court, in respectful
submission of learned Assistant Government Pleader, this is not
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a fit case in which a clear case of contempt is made out and as
such has requested to dismiss the petition.
9. Having heard learned advocates appearing for the parties
and having gone through the order passed by learned Single
Judge, directions which are issued deserve close observance to
ascertain as to whether any deliberate and willful defiance of
the order is made by an authority to violate the directions. It is
undisputed position as recorded in the order passed by learned
Single Judge, that these applicants are working as Junior Clerks
under the Narmada Water Resource, Water Supply and Kalpsar
Department and have prayed for direction to promote them to
the post of Senior Clerk to which they became eligible upon
completion of 5 years service from the date of their appointment
as junior clerk and further it has been prayed that the
promotion be given to the petitioners to the post of Senior
Clerks subject to the outcome of the departmental examination
that the respondents may undertake as the examinations were
long overdue but was not taken. This is the premise on which
the applicants have presented their petition.
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10. After hearing both the sides and after close perusal of the
material on record, it has been observed by learned Single
Judge in paragraph-10 that, "admittedly therefore for being
considered for promotion to the post of Senior Clerk in
accordance with the Senior Clerk Rules, the petitioners have
completed five years service and have passed the computer
examinations. The only requirement therefore that the
petitioners need to complete in order to be considered for
promotion to the post of Senior Clerk is passing of the
departmental examinations" and for that purpose, a reference
is made to Rule 3 of the Rules, called as Senior Clerk, Class-III,
in the Subordinate Service of the Non- Secretariat Department
and Offices of Recruitment Rules. On the basis of the said Rule,
it has also been observed that it is an admitted position that
from the year 2014 to 2021, department has failed to conduct
any examination and examinations were held as mentioned in
paragraph-12 only in March 2021 and though details were to be
sent prior to 20.5.2021, same were not sent on time and
petitioners could not appear in examination of March 2021
though being eligible. But, at the same time, learned Single
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Judge has observed in paragraph-14 that it is an admitted
position of the department that though the petitioners were
eligible in the year 2017 who have completed five years in 2020
and gained eligibility for appointment by promotion, the
departmental examination could not be held. But, the fact
remains, which is not in dispute, that five years are completed
in the year 2020. At the same time, it has been observed in
paragraph-14 in later part that once the petitioners have passed
lower level departmental examination within three prescribed
chances, their seniority inter-se in promotion shall be governed
by Rule 5(a) and for the purpose of their seniority, vis-a-vis
direct recruits, shall be governed subject to Rule 5(a) from the
date of their completion of five years as Junior Clerks as are
indicated in the table and it is in this factual matrix, directions
appear to have not been issued. It is also not in dispute that
these applicants have completed five years in the year 2020 and
as such in the light of the aforesaid circumstance, learned
Assistant Government Pleader has rightly pointed out the effect
of Rule 4 and Rule 5 of the Gujarat Civil Services (Conditions of
Service relating to Departmental Examination) (General) Rules
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2015, which is undisputedly applicable in the case of the
applicants. Rule 4 is dealing with eligibility to appear in
examination which reads as under:-
"4. Eligibility to appear in examination.- No person shall be eligible
to appear at the departmental examination unless he has
completed two years' service after his regular appointment on
the post mentioned in part-I of part-II of Appendix-A as the case
may be."
11. Effect of this Rule is that no person shall become eligible
to appear in departmental examination unless he has completed
two years after his regular appointment on the post mentioned
in part-I and part-II of Appendix-A, meaning thereby after
completion of five years, for treating him as regular appointee,
he shall have to complete two years service and as such would
become eligible after 7 years as per the submission of learned
Assistant Government Pleader and applicants would then have a
chance to first appear in the examination of May 2022. Overall
discussion which has led the direction in an order is not
appearing to be deliberate or willful disobedience and here at
this stage, we may also refer to Rule 5 which deals with
specified chance for passing relevant examination. Rule 5(a)
reads as under:-
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"5. Specified Chance for passing relevant Examination,- A
person shall require to pass such departmental examination
within three chances. To appear in the departmental
examination up to three chances, no examination fees shall be
required to be paid. After the third chance the person shall be
eligible to appear in the departmental examination at any time
on payment of an examination fees as may be determined by
the Government:
(a) The person shall not be entitled to claim seniority over
those persons who have passed the departmental examination
earlier than him and also have been promoted to the higher
post before he became eligible for such promotion on passing
such departmental examination after three chances."
12. Of-course, the Court is not examining merit or de-merit of
the claim of applicants, but on the basis of this effect of Rules 4
and 5, a defense is raised by respondent authority as to whether
there is any willful disobedience on the part of the authority or
not and for that purpose, reference is made to rules.
13. In the light of this, a perusal of the averments which have
been made by an authority in the affidavit of August 2023, we
deem it proper to incorporate paragraph-10 hereunder:-
"10. In Para: 14, Hon'ble high court has given the directions
subject to Rule 5 (a) and consider the seniority of the said
petitioners vis-à-vis direct recruits which means the seniority
of the petitioners should be protected if direct recruits come
first. Moreover, the whole directions of this para is also
subject to Rule 5 (a) and Rule 5 (a) will only be applicable in
the case where any junior employees get promotion before
senior employees. Which means, according to the judgment,
only in the scenario where the direct recruits are appointed
first then accordingly the seniority of the petitioners should be
counted from the date of completion of five years of service
subject to Rule 5(a). But in this case, there is no junior
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employees including direct recruits are appointed as senior
clerk before the petitioners got promoted. And also, while
concluding in the Para: 15 of the judgment, this Hon'ble High
court has clearly direct to protect the seniority of the
petitioner's vis-à-vis direct recruits. As, the petitioners have
been promoted first and also they are appointed as senior
clerk right before the direct recruits, their seniority is already
protected in this case as per the directions given in the
judgment. Hence, this present contempt petition is needs to
be dismissed, as it is complied."
14. In addition to this, so as to examine as to whether, is there
any willful or deliberate or intentional disobedience of the
direction or not, we may further peruse the affidavit filed later
in point of time dated 6.10.2023, wherein also, an intention is
declared that appropriate procedure shall be complied with
within a period of four weeks since approval from various
departments would be required and further the same will be
done subject to outcome of the Letters Patent Appeal which is
filed and pending for adjudication. Simultaneously,
unconditional apology has also been submitted in a categorical
term. We deem it proper to quote paragraphs 6 and 7 of the said
affidavit hereunder:
"6. I say and submit that the Respondent shall undertake
appropriate procedure for complying direction issued by the
Hon'ble Court and the same will be completed within 4 weeks
as approval from various department would be required. It is
further submitted that the compliance will be done subject to
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the outcome of Letters Patent Appeal filed before the Hon'ble
Court and which pending adjudication before this Hon'ble
Court.
7. I tender my sincere and unconditional apology for the
inconvenience caused to the Hon'ble Court once again. The
deponent thus humbly solicits for apologies as there was a
delay in complying the order of the Hon'ble Single Judge and
there was no action or inaction on deponent's part which may
amount to will-full disobedience of the order of this Hon'ble
Court and hence the contempt proceedings be dropped in the
interest of justice."
15. From the conjoint reading of the aforesaid discussion and
observations and effect of Rules, there appears to be no willful
disobedience or intentional or deliberate attempt to disobey the
directions issued by the Court and furthermore, when statement
in a categorical term has been made by learned Assistant
Government Pleader on instruction of Mr. M.L. Patel,
Superintending Engineer, who is personally present and
instructed that seniority aspect would be taken care of from the
year 2020, hence element of willful disobedience is missing in
the present proceedings and as such we are not inclined to
exercise our contempt jurisdiction since no clear case of
contempt is made out.
16. At this stage, we remind ourselves to some of the
observations made by the Hon'ble Apex Court on the issue of
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contempt of the Court which indicates that the power vested in
the High Courts as well as this Court to punish for contempt is a
special and rare power available both under the Constitution as
well as the Contempt of Courts Act, 1971. It is a drastic power
which, if misdirected, could even curb the liberty of the
individual charged with commission of contempt. The very
nature of the power casts a sacred duty in the Courts to
exercise the same with the greatest of care and caution. The
observations which are made in paragraph-19 of the decision of
Hon'ble the Apex Court in the case of Sudhir Vasudeva,
Chairman and Managing Director, Oil and Natural Gas
Corporation Limited and others v. M. George Ravishekaran and
others reported (2014) 3 SCC 373, we deem it proper to quote
hereunder:-
"19. The power vested in the High Courts as well as this Court to
punish for contempt is a special and rare power available both
under the Constitution as well as the Contempt of Courts Act,
1971. It is a drastic power which, if misdirected, could even curb
the liberty of the individual charged with commission of
contempt. The very nature of the power casts a sacred duty in
the Courts to exercise the same with the greatest of care and
caution. This is also necessary as, more often than not,
adjudication of a contempt plea involves a process of self
determination of the sweep, meaning and effect of the order in
respect of which disobedience is alleged. Courts must not,
therefore, travel beyond the four corners of the order which is
alleged to have been flouted or enter into questions that have
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not been dealt with or decided in the judgment or the order
violation of which is alleged. Only such directions which are
explicit in a judgment or order or are plainly self evident ought
to be taken into account for the purpose of consideration as to
whether there has been any disobedience or willful violation of
the same. Decided issues cannot be reopened; nor the plea of
equities can be considered. Courts must also ensure that while
considering a contempt plea the power available to the Court in
other corrective jurisdictions like review or appeal is not
trenched upon. No order or direction supplemental to what has
been already expressed should be issued by the Court while
exercising jurisdiction in the domain of the contempt law; such
an exercise is more appropriate in other jurisdictions vested in
the Court, as noticed above. The above principles would appear
to be the cumulative outcome of the precedents cited at the bar,
namely, Jhareswar Prasad Paul and Another vs. Tarak Nath
Ganguly and Others[3], V.M.Manohar Prasad vs. N. Ratnam Raju
and Another[4], Bihar Finance Service House Construction
Cooperative Society Ltd. vs. Gautam Goswami and Others[5] and
Union of India and Others vs. Subedar Devassy PV[6]."
17. Yet another decision of recent time of Hon'ble the Apex
Court in the case of Dr. U.N. Bora Ex. Chief Executive Officer
and others v. Assam Roller Flour Mills Association and Another
reported in (2022) 1 SCC 101, relevant observations we deem it
proper to quote hereunder:-
"8. We are dealing with a civil contempt. The Contempt of Courts
Act, 1971 explains a civil contempt to mean a willful
disobedience of a decision of the Court. Therefore, what is
relevant is the "willful" disobedience. Knowledge acquires
substantial importance qua a contempt order. Merely because a
subordinate official acted in disregard of an order passed by the
Court, a liability cannot be fastened on a higher official in the
absence of knowledge. When two views are possible, the
element of willfulness vanishes as it involves a mental element.
It is a deliberate, conscious and intentional act. What is required
is a proof beyond reasonable doubt since the proceedings are
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quasi-criminal in nature. Similarly, when a distinct mechanism is
provided and that too, in the same judgment alleged to have
been violated, a party has to exhaust the same before
approaching the court in exercise of its jurisdiction under the
Contempt of Courts Act, 1971. It is well open to the said party to
contend that the benefit of the order passed has not been
actually given, through separate proceedings while seeking
appropriate relief but certainly not by way of a contempt
proceeding. While dealing with a contempt petition, the Court is
not expected to conduct a roving inquiry and go beyond the very
judgment which was allegedly violated. The said principle has to
be applied with more vigor when disputed questions of facts are
involved and they were raised earlier but consciously not dealt
with by creating a specific forum to decide the original
proceedings.
9. We do not wish to reiterate the aforesaid settled principle of law
except by quoting the reasoned decision of this Court in Hukum
Chand Deswal v. Satish Raj Deswal, 2020 SCC Online SC 438
wherein the celebrated judgment in Ram Kishan v. Tarun Bajaj,
(2014) 16 SCC 204, has been quoted. The following paragraphs
would govern the aforesaid principle:
"20. At the outset, we must advert to the contours delineated by this
court for initiating civil contempt action in Ram Kishan vs. Tarun Bajaj
& Ors. In paragraphs 11, 12 and 15 of the reported decision, this
Court noted thus:
"11. The contempt jurisdiction conferred on to the law courts power to
punish an offender for his wilful disobedience/ contumacious conduct
or obstruction to the majesty of law, for the reason that respect and
authority commanded by the courts of law are the greatest guarantee
to an ordinary citizen that his rights shall be protected and the entire
democratic fabric of the society 5 (2014) 16 SCC 204 18 will crumble
down if the respect of the judiciary is undermined. Undoubtedly, the
contempt jurisdiction is a powerful weapon in the hands of the courts
of law but that by itself operates as a string of caution and unless,
thus, otherwise satisfied beyond reasonable doubt, it would neither be
fair nor reasonable for the law courts to exercise jurisdiction under the
Act. The proceedings are quasi criminal in nature, and therefore,
standard of proof required in these proceedings is beyond all
reasonable doubt. It would rather be hazardous to impose sentence for
contempt on the authorities in exercise of the contempt jurisdiction on
mere probabilities. (Vide V.G. Nigam v. Kedar Nath Gupta, (1992) 4
SCC 697, Chhotu Ram v. Urvashi Gulati, (2001) 7 SCC 530, Anil Ratan
Sarkar v. Hirak Ghosh, (2002) 4 SCC 21, Bank of Baroda v. Sadruddin
Hasan Daya, (2004) 1 SCC 360, Sahdeo v. State of U.P., (2010) 3 SCC
705 and National Fertilizers Ltd. v. Tuncay Alankus, (2013) 9 SCC 600.
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12. Thus, in order to punish a contemnor, it has to be established that
disobedience of the order is "wilful". The word "wilful" introduces a
mental element and hence, requires looking into the mind of a person/
contemnor by gauging his actions, which is an indication of one's state
of mind. "Wilful" means knowingly intentional, conscious, calculated
and deliberate with full knowledge of consequences flowing therefrom.
It excludes casual, accidental, bona fide or unintentional acts or
genuine inability. Wilful acts does not encompass involuntarily or
negligent actions. The act has to be done with a "bad purpose or
without justifiable excuse or stubbornly, obstinately or perversely".
Wilful act is to be distinguished from an act done carelessly,
thoughtlessly, heedlessly or inadvertently. It does not include any act
done negligently or involuntarily. The deliberate conduct of a person
means that he knows what he is doing and intends to do the same.
Therefore, there has to be a calculated action with evil motive on his
part. Even if there is a disobedience of an order, but such
disobedience is the result of some compelling circumstances under
which it was not possible for the contemnor to comply with the order,
the contemnor cannot be punished. "Committal or sequestration will
not be ordered unless contempt involves a degree of default or
misconduct." (Vide S. Sundaram Pillai v. V.R. Attabiraman, (1985) 1
SCC 591, Rakapalli Raja Ram Gopala Rao v. Naragani Govinda
Sehararao, (1989) 4 SCC 255, Niaz Mohammad v. State of 19
Haryana, (1994) 6 SCC 332, Chordia Automobiles v. S. Moosa, (2000)
3 SCC 282, Ashok Paper Kamgar Union v. Dharam Godha, (2003) 11
SCC 1, State of Orissa v. Mohd. Illiyas, (2006) 1 SCC 275 and
Uniworth Textiles Ltd. v. CCE, (2013) 9 SCC 753.
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15. It is well settled principle of law that if two interpretations
are possible, and if the action is not contumacious, a contempt
proceeding would not be maintainable. The effect and purport of the
order is to be taken into consideration and the same must be read in
its entirety. Therefore, the element of willingness is an indispensable
requirement to bring home the charge within the meaning of the Act.
[See Sushila Raje Holkar v. Anil Kak, (2008) 14 SCC 392 and Three
Cheers Entertainment (P) Ltd. v. CESC Ltd., (2008) 16 SCC 592."
21. Similarly, in R.N. Dey & Ors. vs. Bhagyabati Pramanik &
Ors., this Court expounded in paragraph 7 as follows:
"7. We may reiterate that the weapon of contempt is not to be used in
abundance or misused. Normally, it cannot be used for execution of
the decree or implementation of an order for which alternative remedy
in law is provided for. Discretion given to the court is to be exercised
for maintenance of the court's dignity and majesty of law. Further, an
aggrieved party has no right to insist that the court should exercise
such jurisdiction as contempt is between a contemner and the court. It
is true that in the present case, the High Court has kept the matter
pending and has ordered that it should be heard along with the first
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appeal. But, at the same time, it is to be noticed that under the
coercion of contempt proceeding, appellants cannot be directed to pay
the compensation amount which they are disputing by asserting that
claimants were not the owners of the property in question and that
decree was obtained by suppressing the material fact and by fraud.
Even presuming that the claimants are entitled to recover the amount
of compensation as awarded by the trial court as no stay order is
granted by the High Court, at the most they are entitled to recover the
same by executing the 6 (2000) 4 SCC 400 20 said award wherein the
State can or may contend that the award is a nullity. In such a
situation, as there was no wilful or deliberate disobedience of the
order, the initiation of contempt proceedings was wholly unjustified."
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25. Pertinently, the special leave petitions were filed by the
respondent against the order dated 28.1.2019, which as aforesaid, did
not deal with the question regarding the monthly rent payable by the
respondent but explicitly left the parties to pursue the same before the
executing Court. The plaintiff/petitioner having acquiesced of that
observation of the High Court, cannot be allowed to contend to the
contrary. This Court in Jhareswar Prasad Paul & Anr. vs. Tarak Nath
Ganguly & Ors., in paragraph 11, opined thus:
"11. ... The court exercising contempt jurisdiction is not entitled to
enter into questions which have not been dealt with and decided in the
judgment or order, violation of which is alleged by the applicant. The
court has to consider the direction issued in the judgment or order and
not to consider the question as to what the judgment or order should
have contained. At the cost of repetition, 7 (2002) 5 SCC 352 23 be it
stated here that the court exercising contempt jurisdiction is primarily
concerned with the question of contumacious conduct of the party,
which is alleged to have committed deliberate default in complying
with the directions in the judgment or order. If the judgment or order
does not contain any specific direction regarding a matter or if there is
any ambiguity in the directions issued therein then it will be better to
direct the parties to approach the court which disposed of the matter
for clarification of the order instead of the court exercising contempt
jurisdiction taking upon itself the power to decide the original
proceeding in a manner not dealt with by the court passing the
judgment or order. If this limitation is borne in mind then criticisms
which are sometimes levelled against the courts exercising contempt
of court jurisdiction "that it has exceeded its powers in granting
substantive relief and issuing a direction regarding the same without
proper adjudication of the dispute" in its entirety can be avoided. This
will also avoid multiplicity of proceedings because the party which is
prejudicially affected by the judgment or order passed in the contempt
proceeding and granting relief and issuing fresh directions is likely to
challenge that order and that may give rise to another round of
litigation arising from a proceeding which is intended to maintain the
majesty and image of courts."
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xxx xxx xxx
26. Thus understood, we find force in the explanation offered by the
respondent that as per its bona fide understanding, there was no
outstanding dues payable to the petitioner. Moreover, as observed by
the High Court, these aspects could be answered by the executing
Court if the parties pursue their claim(s) before it in that regard.
Suffice it to observe that it is not a case of intentional violation or
wilful disobedience of the order passed by this Court to initiate
contempt action against the respondent. Instead, we hold that it would
be open to the parties to pursue their claim(s) in execution
proceedings or any other proceedings, as may be permissible in law in
respect of the issue(s) under consideration. In such proceedings, all
aspects can be considered by the concerned forum/Court on merits in
accordance with law. We say no more.
27. Reverting to the allegation about damage caused to the suit
property by the respondent at the time of vacating the same, in our
opinion, the respondent has made out a formidable case that it did not
cause any damage, much less permanent damage to the structure in
the suit property. Whereas, the petitioner was relying on photographs
concerning the debris on the site left behind at the time of vacating
the suit property. The debris cannot cause damage and it is certainly
not a case of defacement of the suit property. That position is
reinforced from the fact that the water park in the suit premises was
started and became fully functional within 2-3 months. Viewed thus, it
is rightly urged that it can be safely assumed that no damage was
caused by the respondent to the structure in question. Minor repairs
required to be carried out by the petitioner for making the water park
functional cannot be painted as intentional disobedience of the order
of this Court. In any case, that being a complex question of fact, need
not be adjudicated in the contempt proceedings. We leave it open to
the petitioner to pursue even that claim in execution proceedings or
such other proceedings as may be permissible in law. We may not be
understood to have expressed any final opinion in respect of condition
of the suit premises, whilst handing over possession to the petitioner.
We hold that even this issue under consideration does not warrant
initiation of contempt action against the respondent."
(emphasis supplied)
18. Further, the observations contained in another decision of
the Hon'ble Apex Court in the case of Bordeuri Samaj of Sri Sri
Maa Kamakhya v. Riju Prasad Sarma and others reported in
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2021 SCC OnLine 1254, are indicating that contempt
jurisdiction is always discretionary which should be exercised
sparingly and with circumspection. Hence, keeping in view the
observations contained in paragraph-11, we are of the opinion
that applicants have not made out any clear case which may
permit us to initiate step(s) under the provisions of the
Contempt of Courts Act and more particularly when seniority
issue of these applicants is taken care of, as submitted by
learned Assistant Government Pleader, and further, Letters
Patent Appeal is stated to be pending, we refrain ourselves from
exercising our contempt jurisdiction and as such we hereby
DISMISS the present contempt petition. Notice is discharged.
19. However, this dismissal will not come in the way of the
applicants to takeout appropriate proceedings which are
permissible in law to ventilate their grievance and we clarify
that these observations which are made are strictly to examine
whether any defiance is made by the authority or not and as
such, these observations may not come in the way of the
applicants in any other proceedings which may take place.
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20. While parting with present order, we must indicate that
we were inclined to impose costs upon the applicants for
persistently pursuing the present proceedings, but looking to
the overall circumstances, we refrain ourselves from imposing
costs.
Sd/-
(ASHUTOSH SHASTRI, J)
Sd/-
(HEMANT M. PRACHCHHAK,J)
OMKAR
