Rajasthan High Court

Milap Chand Dandia S/O Late Shri ... vs D.B. Gupta on 22 March, 2022

Bench: Pankaj Bhandari, Anoop Kumar Dhand

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

           D.B. Civil Contempt Petition No. 1503/2019

                                       In
           D.B. Civil (PIL) Writ Petition No. 20267/2017

Milap Chand Dandia S/o Late Shri Gendilal Ji Dandia, Aged About
85 Years, R/o C-5, Chikitsalaya Marg, Bapu Nagar, Jaipur. Mobile
No. 94140-41879
                                                                    ----Petitioner
                                   Versus
1.     D.B. Gupta, Chief Secretary, Government Of Rajasthan,
       Secretariat, Jaipur (Raj.).
2.     State   Of   Rajasthan,          Through         Its     Chief   Secretary,
       Government Of Rajasthan, Secretariat, Jaipur (Raj)
3.     Shri Rajeev Swarup, Chief Secretary, Government Of
       Rajasthan, Secretariat, Jaipur (Raj.)
4.     Shri Niranjan Arya, Chief Secretary, Government Of
       Rajasthan, Secretariat, Jaipur. (Raj.)
                                              ----Respondents/Contemnors

For Petitioner(s) : Mr. Vimal Chand Chaudhary Mr. Yogesh Tailor Mr. Diwakar Khaldwa For Respondent(s) : Mr. M.S. Singhvi, Advocate General with Mr. Sheetanshu Sharma Mr. Siddhant Jain

HON'BLE MR. JUSTICE PANKAJ BHANDARI HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Order Date of Reserve :: 08.03.2022 Date of Pronouncement :: March 22, 2022

For compliance of the judgment dated 04.09.2019 passed in

D.B. Civil Writ Petition No. 20267/2017, the petitioner has filed

this contempt petition with the following prayer:-

"It is therefore prayed that this Hon'ble Court may kindly be pleased to allow this contempt petition with heavy cost and the Respondent/contemnor may kindly be punished. The direction may also be issued to the

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contemnor to comply the judgment passed by this Hon'ble Court and to withdraw the facilities from the Ex Chief Ministers, which has provided under provisions of Section 7 BB and Section 11(2) of the Rajasthan Ministers and Salaries (Amendment) Act, 2017 (Act No. 30/2017) with means profit. The arrears may also be recovered from the Ex Chief Ministers."

Brief facts of the case are that the petitioner submitted a

petition challenging the constitutional validity of Section 7 BB and

Section 11 of the Rajasthan Ministers' Salaries (Amendment) Act,

2017 (for short 'the Act of 2017') which provides that former Chief

Ministers shall get for the remainder of their lives, a government

residence, a car for their family members, telephone and a staff of

10 persons including a driver.

After hearing both the parties, the Court allowed the writ

petition on 04.09.2019 and declared that Section 7 BB and 11(2)

of the Act of 2017 as arbitrary, contrary to Article 14 of the

Constitution of India.

On 23.10.2019, the petitioner submitted this contempt

petition before this Court alleging that despite expiry of more than

a month, no steps were taken by the respondents to get the

possession of the house of the former Chief Ministers and

withdraw the facilities provided to them under the provisions of

Section 7 BB and Section 11 (2) of the Act of 2017. Hence, such

act of the respondents amounts to contempt of this Court's order

dated 04.09.2019.

The respondents in the reply submitted that against the

judgment dated 04.09.2019, the State Government submitted

Special Leave to Petition before the Hon'ble Supreme Court and

the same was dismissed and immediately thereafter in compliance

of the judgment dated 04.09.2019, the staff of the Ex-Chief

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Ministers Smt. Vasundhara Raje and Shri Jagannath Pahadia was

withdrawn vide order dated 19.01.2020.

And on 21.01.2020, the Ex-Chief Minister Shri Jagannath

Pahadia vacated the Bungalow No.5 Hospital Road, Jaipur and

handed over its vacant possession to the Public Works

Department. It is stated in the reply that the Ex-Chief Minister

Smt. Vasundhara Raje continues to occupy the Bungalow being

entitled for it as Member of Legislative Assembly.

It is stated in the reply that both Ex-Chief Ministers Smt.

Vasundhara Raje and Shri Jagannath Pahadia have returned the

government vehicles along with the services of the drivers and the

same have been deposited in the State Motor Garage on

19.01.2020.

It is also stated in the reply that the facilities provided to

former Chief Ministers in terms of the provisions of Section 7 BB

and Section 11 of the Act of 2017 have been withdrawn and the

judgment dated 04.09.2019 passed by the Court has been

complied with.

In rejoinder, the petitioner submitted that the respondents

requested the Ex-Chief Minister Shri Jagannath Pahadia to vacate

the Bungalow No.5 situated at Hospital Road vide letter dated

19.01.2020 and on 21.01.2020 Shri Jagannath Pahadia vacated

the house. But no notice was given to the Ex-Chief Minister Smt.

Vasundhara Raje to vacate the Bungalow No. 13 and she was

allowed to continue to occupy this Bungalow, so penalty of Rs.

10,000/- be imposed upon her per day in view of Section 5 of the

Rajasthan Ministers Salaries (Amendment) Act, 1956 as she has

not vacated the house after demitting the Office of the Chief

Minister.

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In reply to the rejoinder, the respondents submitted an

additional affidavit to bring on record the following subsequent

developments:-

(i) That in compliance of the order dated 04.09.2019 passed by the Hon'ble Court, the facilities provided to former Chief Ministers in terms of provisions of Section 7 BB and Section 11 of the Rajasthan Ministers Salaries Act, 2017 have already been withdrawn. It was also submitted that so far as Bungalow allotted to Ex-Chief Minister Smt. Vasundhara Raje is concerned, she continues to occupy the said Bungalow being entitled for it as Member, Rajasthan Legislative Assembly.

(ii) That the State Government vide notification dated 01.08.2020, in exercise of the powers conferred by clause

(e) of sub-Section (2) of Section 11 of the Rajasthan Legislative Assembly (Officers and Members Emoluments and Pension) Act, 1956 made amendment in Rule 3 of the Rajasthan Legislative Assembly (Members Residential Accommodation) Rules, 1973 (hereinafter referred to as 'the Rules of 1973') and after existing sub-Rule (6) and before existing sub-Rule (7) following new sub-Rule 6 A has been inserted:-

"(6A) While making allotment, the House Committee may, after due consideration, make out of turn allotment of appropriate house to the Member who has been, -

(i) Chief Minister of the State of Rajasthan

(ii) Union Cabinet Minister,

(iii) Minister of a State, Government of India and at least three times Member;

(iv) Cabinet Minister of the State and at least two times Member; or

(v) At least two times Member of Lok Sabha/ Rajya Sabha."

(iii) That vide notification dated 01.08.2020 amendment in Appendix- B appended to the Rules of 1973 and after existing serial No. 6 and entries thereto, the following new serial Nos. 7 to 10 and entries thereto has been added:-

"7. 1/24, Gandhi Nagar, Jaipur.

8. 1/32, Gandhi Nagar, Jaipur.

9. B-2, Bhagat Singh Marg, Jaipur.

10. 13, Civil Lines, Jaipur.

(iv) That in view of the aforesaid amendments in the Rules of 1973, vide order dated 18th August, 2020, Smt. Vasundhara Raje, Shri Mahendrajeet Singh Malviya, Shri Mahadev Singh and Shri Narendra Budania have been allotted Government Bungalows included at serial Nos. 7 to 10 as Members of the Rajasthan Legislative Assembly.

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        (v)     That in view of the aforesaid subsequent

developments, the present contempt proceedings may kindly be dropped as no case of any contempt much less a willful and deliberate contempt of the order dated 04.09.2019 passed by the Hon'ble Court is made out."

Retreating the arguments, learned counsel for the petitioner

argued that the respondents have committed willful contempt of

the order of this Court. Counsel further submitted that the

respondents be punished for non-compliance of the judgment and

the Ex-Chief Minister Smt. Vasundhara Raje be directed to vacate

the Bungalow No. 13 situated at Civil Lines, Jaipur and penal

charges of Rs. 10,000/- per day be charged till vacation of the

aforesaid Bungalow.

Per contra, learned counsel for the respondents opposed the

arguments raised by the counsel for the petitioner and argued that

the facilities provided to the former Chief Ministers have already

been withdrawn and compliance of the judgment dated

04.09.2019 has already been done. He submitted that the Ex-

Chief Minister Smt. Vasundhara Raje is a Member of Rajashtan

Legislative Assembly, hence, she is continuing to occupy the

aforesaid Bungalow in the capacity of Member of Legislative

Assembly.

He further submitted that while passing the judgment dated

04.09.2019, the Court allowed the writ petition filed by the

petitioner and declared Section 7 BB and Section 11(2) of the Act

of 2017 as arbitrary, contrary to Article 14 of the Constitution of

India and void only, but no such direction was issued to recover

any amount from the former Chief Ministers till vacation of the

houses.

Lastly, he argued that if the petitioner thinks that penalty

charges should be recovered either from the respondents or from

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the Ex-Chief Ministers, he may avail the remedy available under

the law for redressal of his grievances.

In support of his contentions, learned counsel for the

respondents has placed reliance on the judgments delivered by

the Hon'ble Supreme Court in the cases of Kanwar Singh Saini

Vs. High Court of Delhi, reported in 2012 (4) SCC 307,

Salauddin Ahmed & Anr. Vs. Samta Andolan, reported in

2012 (10) SCC 235 and J.S. Parihar Vs. Ganpat Duggar and

Ors., reported in 1996(6) SCC 291.

Heard, considered the arguments raised by both the parties.

The question before this Court is that "Whether the

respondents have committed deliberate and willful disobedience of

the order passed by this Court on 04.09.2019?"

A challenge was laid to the constitutionality of Section 7 BB

and Section 11 of the Act of 2017 which provides that former

Chief Ministers shall get for the remainder of their lives, a

government residence, a car for family members, telephone and a

staff of 10 persons including a driver. After hearing both the sides,

the Court declared Section 7 BB and Section 11(2) of the Act of

2017 as arbitrary, contrary to Article 14 of the Constitution of

India and void. No further directions/orders were issued.

As per the judgment delivered by the Hon'ble Supreme Court

in the case of Salauddin Ahmed (supra) in order to establish that a

person had deliberately and willfully committed contempt of Court,

two essential ingredients have to be proved. Firstly, it has to be

established that an order has been passed by the Court which

either directs certain things to be done by a person or to restrain

such person or persons from doing certain acts and that the

person or persons had knowledge of the said order. Secondly, it

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has to be established that despite having knowledge of such order,

the person concerned deliberately and willfully violated the same

with the intention of lowering the dignity and image of the Court.

We have to see whether in the facts of this case the said two

tests are satisfied.

On bare perusal of the judgment dated 04.09.2019, it is

clear that there was no such direction issued by the Court to get

the vacant possession of the houses from the former Chief

Ministers within a particular time frame. There was no such

direction that in case the former Chief Ministers do not vacate the

houses, then penalty should be recovered from them.

The judgment dated 04.09.2019 was challenged by the State

before the Hon'ble Supreme Court and after rejection of the

Special Leave to Petition, the staff and the vehicles were

withdrawn by the respondents on 19.01.2020 and the Ex-Chief

Minister Shri Jagannath Pahadia vacated the house on

21.01.2020. Smt. Vasundhara Raje continued to occupy the

Bungalow No. 13 in the capacity of being Member of Legislative

Assembly.

The contention of counsel for the petitioner that the

allotment to Smt. Vasundhara Raje Ex-Chief Minister was made

subject to the decision in writ petition and therefore the

respondents should have cancelled the allotment, has no force as

the State preferred S.L.P. and after its dismissal proceeded to

amend the Rules. There is thus no willful disobedience.

Their Lordships of the Hon'ble Supreme Court in the case of

Kanwar Singh Saini (supra) has held in Para 38 as under:-

"38. The contempt proceedings being quasi- criminal in nature, the standard of proof required is in the same manner as in other criminal cases. The alleged

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contemnor is entitled to the protection of all safeguards/rights which are provided in the Criminal Jurisprudence, including the benefit of doubt. There must be a clear-cut case of obstruction of administration of justice by a party intentionally to bring the matter within the ambit of the said provision. The case should not rest only on surmises and conjectures. In Debabrata Bandhopadhyaya Vs. State of W.B., this Court observed as under:-

"9. A question whether there is contempt of court or not is a serious one. The court is both the accuser as well as the judge of the accusation. It behoves the court to act with as great circumspection as possible making all allowances for errors of judgment and difficulties arising from inveterate practices in courts and tribunals. It is only when a clear case of contumacious conduct not explainable otherwise, arises that the contemnor must be punished......... Punishment under the law of Contempt is called for when the lapse is deliberate and in disregard of one's duty and in defiance of authority. To take action in an unclear case is to make the law of contempt do duty for other measures and is not to be encouraged."

Accordingly, we are of the view that there was no willful or

deliberate intention on the part of the respondents to defy the

order passed by this Court. Hence, the contempt petition is

dismissed.