1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
O R D E R
G.B.Jain & Sons Vs. Shrimat Pandey & ors.
S.B.CR. MISC.CONTEMPT PETITION NO.24/1998
UNDER SECTION 12 OF
THE CONTEMPT OF COURTS ACT.
Date of Judgment: March 09, 2009
P R E S E N T
HON'BLE MR.JUSTICE DEO NARAYAN THANVI
Mr.M.C.Bhoot, for petitioner.
Mr.M.S.Singhvi)
Mr.N.M.Lodha ) for respondents.
Mr.B.P.Bohra )
REPORTABLE BY THE COURT :
1. This protracted Contempt Petition filed long back
in June, 1998, captioned as “Criminal Contempt”, under
Section 12 of the Contempt of Courts Act, hereinafter
referred-to as “the Act”, is still under adjudication as to
whether disobedience of the order of this Court
dt.23.6.98 passed at 4.30 PM by the Vacation Judge of
2
this Court at his residence in S.B.Cr. Misc.Stay Petition
No.340/98 (Misc. Petition No. 478/1998), amounts to
Civil or Criminal Contempt.
2. Before narrating the brief facts as alleged in the
Contempt Petition filed on 25.6.98, it is apparent from
the body of Contempt Petition that it was titled as S.B.
Criminal Contempt Petition but on 5.4.1999, when the
case came up before the learned Single Judge, learned
Addl.Advocate General raised an objection that the
caption of the petition is “Criminal Contempt”,
therefore, the matter should be heard only by the
Division Bench. At this point, learned counsel for the
petitioner stated that it is a “Civil Contempt” and due to
misconception, it has been stated as “Criminal
Contempt”. In view of the above arguments, the learned
Single Judge deferred the matter for two days to first
decide as to whether it is a “Civil Contempt” or
“Criminal Contempt”. Then the case was adjourned for
one reason or the other. Ultimately, on 16.2.09,
learned counsel Mr.M.S.Singhvi appearing on behalf of
respondents submitted that this petition has become
infructuous, as the Division Bench has already decided
one of the issue involved in this Cr.Misc.Contempt
3
Petition in D.B.Cr.Contempt Petitions No.26/98 and
No.39/96 on 13.1.09. A copy of the said order was
supplied to Mr.M.C.Bhoot, learned counsel for the
petitioner, to which Mr.Bhoot wanted time to verify and
make submissions on 20.2.99 and further submitted
that unless the record of both these two
D.B.Cr.Contempt Petition is called for, the proceedings
of those Contempt Petitions cannot be referred in this
Contempt Petition. Upon this, with the consent of both
the parties, the record was ordered to be called for , to
decide as to whether this is a “Civil Contempt” or
“Criminal Contempt as well as this petition and the
case was posted on 25.2.09. Previous to that date,
learned counsel for the petitioner submitted an
application for correction of the caption from “Criminal
Contempt” to “Civil Contempt” alongwith the amended
cause title. Reply to the same was also filed by the
respondents showing the conduct of the petitioner in
judicial proceedings in S.B.Civil Revision No.114/04. On
2.3.09, when the case was listed, disposal of this
application for correction of caption was also kept open
with the main petition. Accordingly, the arguments on
the main petition alongwith the question as to whether
it is a “Civil Contempt” or “Criminal Contempt” and the
4
application for correction of the caption were heard at
length.
3. The order of this Court passed in S.B.Cr.Misc.Stay
Petition No.340/98 in S.B.Cr. Misc. Petition No.478/98
reads as under:
“Issue notice to the respondents, returnable on
26 t h June, 1998. Be given Dasti for service.In the meanwhile, status quo as it exists today be
maintained.”4. The respondents in this Cr.Misc. Petition were two
viz; State of Rajasthan through Collector Udaipur and
Commissioner Municipal Council Udaipur, whereas the
present Contempt Petition has been filed against four
persons viz; (1) Shrimat Pandey, Collector, Udaipur; (2)
Sumati Lal Bohra, Addl.Collector (City), Udaipur; (3)
Bharat Singh, Addl.S.P. Udaipur; and (4) Inder Singh
Solanki, Tehsildar, Girva, Distt.Udaipur.
5. In short, the facts of the present Contempt
Petition are that on 7.9.1995, a conditional order was
issued to the petitioner u/s.133 CrPC, whereby he was
called upon to remove the amusement equipments
commissioned at the places leased out/licensed to the
5petitioner by the Municipal Council. Petitioner while
giving the background of other circumstances detailed
in the main petition u/s.482 CrPC (478/98) as well as in
S.B.Civil Writ Petitions No.3184/95 and 1747/96,
apprehended dismantling of his equipments under the
garb of Section 133 CrPC despite orders from the
various courts referred in the above petitions, for which
no detailed reference is required. Ultimately, the trial
Court decided the proceedings u/s.133 CrPC on 15.6.98
with a direction to remove the establishment/ the
entertainment park within 7 days i.e. by 22.6.98, else,
the case will be registered against him under Sec.188
IPC and the SHO, Amba Mata shall remove the
equipments, confiscate them with the help of the Urban
Improvement Trust for which the expenditure shall be
recovered from the petitioner. Petitioner preferred a
revision petition against it on 18.6.98, which was
admitted on 19.6.98 by the learned Sessions Judge,
who transferred the same to the ADJ No.2, Udaipur. The
case was fixed on 20.6.98 for final hearing and after
hearing the final arguments on 22.6.98, the revision
was dismissed against which the petitioner preferred
the Cr.Misc. Petition being No.478/98 and obtained the
impugned stay order on 23.6.98, the disobedience of
6which is under challenge in this Contempt Petition. It is
also alleged in the Contempt Petition that prior to
passing of this order, petitioner sent a detailed
telegram to the authorities on 21.6.98. In the Contempt
Petition, it is also alleged that the respondents blatantly
belied the following order of this Court passed in Writ
Petition No.3184/95 on 10.11.95, whereby the
conditional order u/s.133 CrPC was challenged:
“In case, the proceedings are ultimately held
against the petitioner and there is an imminent
direction of dispossession, the petitioner would be
granted breathing time to move the other
appropriate forums available to him under the
law.”6. On getting the certified copy, the petitioner filed
the present Misc. Petition, obtained the stay order at
the residence of the Vacation Judge on 23.6.98 at 4.30
PM and sent a fax to respondent No.1 i.e. the Collector
Udaipur at 17:51 Hrs and also to U.I.T. at 17:55 Hrs. It
is also pleaded in this contempt petition that Shri
Hanuman Prasad Sharma, advocate and a
representative of the petitioner Shri Gani Mohd. also
went at the residence of respondent No.1, where
Sumatilal Bohra, respondent No.2, was present, who
read it and thereafter refused to receive it officially and
7returned the same. Their oral request was also
declined. The P.A. of the respondent No.1 i.e. the
Collector, Udaipur was available at the residence was
delivered the copy at 6 PM and he made an entry to
that effect in the register. Both the representatives of
the petitioner went at the site at 6.15 PM but none of
the non-petitioners present on the site obliged the
petitioner by respecting the order of this Court and
bluntly declined to receive it. By reading and showing
the stay order to them, added fuel to the fire and from
7 PM onwards, the activities were additionally
intensified inasmuch as thereafter the respondents No.1
and 2 reached at the site at 8.30 PM, commissioned
additional labourers and machineries and destroyed
equipments. This process continued upto 10.30 PM.
However, further dismantling activities continued till
late night by acting under vengeance. The incident was
also reported in the press, the copies of which have
been attached with the file, which according to the
petitioner, supports his version. The copies of the
notices were sent by fax on 26.6.98 for appearance of
the respondent No.1 but the fax machine was switched
off and later on somehow or the other, they were
received. It is also alleged in the petition that these
8dismantling activities were undertaken in defiance of
this Court’s order by respondents No.1 and 2 and just
to wreak vengeance on account of filing criminal case
against them and they are guilty of wilful and deliberate
disobedience of the stay order of this Court and in
order to uphold the majesty and dignity of the order of
this Court, stern action be taken against them with
maximum punishment. Alongwith this petition, an
affidavit of the petitioner has been filed vis a vis
Annex.A, a copy of the telegram addressed to six
persons dt.21.6.98, Annex.B telegram dt.22.6.98,
Annex.C fax copy dt.23.6.98 and Annex.D photostat
copies of the news items.
7. Reply to the Contempt Petition has been filed
jointly by the respondents No.1 and 2 in which they
have denied for having committed any contempt and
have also stated at the outset that advertently or
inadvertently, if any contempt has been committed by
them, they tender unconditional apology. While
admitting various orders passed in the proceedings as
referred-to above, it has been stated that the final
order u/s.133 CrPC was passed by the Addl.District
Magistrate (City) Udaipur on 15.6.98 and 7 days’ time
9was granted to the petitioner to remove the equipments
installed at the amusement park by 22.6.98. The
revision was also dismissed against this order by the
ADJ No.2, Udaipur and in compliance of the order, the
SHO, PS, Amba Mata went on the spot by taking the aid
of the UIT and seized the property at 12.30 PM and
started dismantling the equipments fixed at the
amusement park. It is stated in the reply that some
person on behalf of the petitioner came at the residence
of respondent No.1 i.e. the Collector and delivered the
message to the Security Guard at 6.30 PM, who in turn,
delivered the same to one Shri Chauhan, LDC.
Respondent No.1 i.e. the Collector, Udaipur, who had
left for inspection at 4 PM on the same day and was not
available at the time the message was delivered.
Therefore, Shri Chauhan read the message and
immediately contacted the Addl.Collector, respondent
No.2, who in turn, directed the respondent No.4 Inder
Singh Solanki, Tehsildar, Girwa that the status quo be
maintained and work be stayed and the order of this
Court be complied with. Respondent No.4 Tehsildar
reached at the spot at 7 PM and informed the SHO,
Amba Mata to comply with the order of this Court. The
dismantled material was loaded in the trucks provided
10by the UIT and dumped in the compound of Municipal
Council, Udaipur for safety. Despite complying with the
directions contained in the judicial orders 15.6.98 and
22.6.98, petitioner has made wild and baseless
allegations to gain the sympathy of this Court to hide
his fault. They have denied that the respondents No.1
and 2 ever visited the site and no deliberate, malicious
and contemptuous act was done by them. Respondent
No.2 has also filed affidavit in support of his reply.
Respondents No.3 Bharat Singh, Addl.S.P. and
respondent No.4 Inder Singh Solanki, Tehsildar have
submitted the reply to the extent of the facts relating
to them, narrated by respondents No.1 and 2 and have
also filed their affidavits.
8. Thereafter, a rejoinder was filed by the petitioner
in which it is stated that the respondent No.1 has not
filed affidavit in support of the reply and reply of all the
respondents is ex facie false and by & large, repeated
the same facts as stated in the main Contempt Petition.
In the last, it is also stated that the action of the
respondents in removing the equipments on 23.6.98 by
itself tantamounts to criminal contempt in the light of
the earlier order made by this Court for giving
11breathing time. It is also stated that the petitioner has
been literally ruined and in such circumstances,
tendering of apology is of no consequence, unless the
status quo is restored, as it existed on 22.6.98.
Petitioner has also filed the affidavit in support of it
alongwith additional affidavits of one Hanuman Prasad
Sharma advocate, Gani Mohd., Ram Prakash,
Vyanktesh, Ashok Kumar, Suryakant, Bhimanand and
Kailash in which they have stated that the dismantling
activity was going on at 10.30 PM, where respondents
No.1 and 2 were present. In addition, the copies of
newspaper items of 24.6.98 have also been filed.
Thereafter, additional affidavit was filed by Shri
Pandey, Collector in which he has supported the
averments taken in the reply and clearly stated that he
was not immediately available. His staff informed the
Addl.Collector, respondent No.2 with regard to the
receipt of the fax message, who in turn, directed
respondent No.4 to comply with the directions of this
Court. Accordingly, whatever material was dismantled
till the time of receipt of the order, was also carried to
the Municipal Council. The allegations have been
emphatically denied by him in his additional affidavit.
The similar affidavit has been filed by the respondent
12No.2 Sumati Lal Bohra. Petitioner also submitted 11
documents alongwith his affidavit again on 16.11.98
relating to the proceedings under the Rajasthan
Municipalities Act and also by the District Magistrate,
Udaipur in Case No.76/95 etc. including the order of
this Court passed in Civil Writ No.1747/96 and the copy
of the FIR Annex.9 filed against respondents No.1 and 2
on 4.6.98, log book, Commissioner’s report etc.
9. A counter to the rejoinder was also filed by
respondent No.1 with the support of 15 documents
marked as Annex.R1/1 to R1/15 relating to the log
book, applications, licence, letters etc. They have also
filed the affidavits of V.K.Singhvi, Yeshwant Singh
Choudhary, Rooplal & Dhan Singh Rathore. Petitioner
also moved an application with the affidavit of one
Narayan Singh that Rooplal is not the same, whose
affidavit has been filed by the respondents also
alongwith the counter affidavit of one Rooplal s/o Nathu
Meena so as to make out a case of enquiry under
Section 340 CrPC.
10. On the basis of the petition and the documents
filed by the petitioner, it is contended by Mr.M.C.Bhoot
13learned counsel for the petitioner that the respondents
have taken false pleas that they were not having
knowledge of the order of this Court dt.23.6.98, which
was delivered to them at 6 PM and the work continued
upto 3 AM as per the log book. The respondents also
tried to obtain false affidavit of Rooplal whereas the
affidavit filed by the petitioner is more genuine. The
seizure memo is contrary to Commissioner’s report.
According to him, there is no specific denial with regard
to the affidavits filed by the petitioner in the reply filed
by respondent No.2. The action of the respondent was
in utter disregard of the order of this Court as well as
the earlier orders. They were having malice with the
petitioner, as they also initiated proceedings u/s.285 of
the Rajasthan Municipalities Act. According to him, this
Contempt Petition should be treated as a Civil Contempt
punishable under Sec.12 of the Act and the order
passed on 13.1.09 by the Division Bench of this Court
in Criminal Contempt is behind the back of the
petitioner. It has been further argued by Mr.M.C.Bhoot
that the log book filed y respondent No.1 in 2005
cannot be looked into at this later stage. It is a
manipulated document. The malice of the respondents
is clear from the letter Annex.8 in which the reference
14of the discussion with the Collector has been given. The
action being malafide and deliberate, the respondents
should be adequately punished. In support of his
contentions, he has also placed reliance on the case of
State of Raj. v. Smt.Sohani Devi reported in 1999(1)
RLW p.269, dealing with breach of injunction order
under Order 39, Rule 1 & 2 read with Section 151 CPC.
11. In reply, Mr.M.S.Singhvi, learned counsel for the
respondents has submitted that it is a case of Criminal
Contempt in the light of the orders passed by the
Division Bench, referred-to above, wherein allegations
were similar to that of the present Contempt Petition.
This Contempt Petition should be dismissed by virtue of
Section 20 of the Act. According to the learned counsel,
petitioner to gain his profit out of the business, has
falsely implicated the respondents in various litigations
and this Court has observed so while deciding the above
two D.B.Cr.Contempt Petitions, which were filed on
6.7.98 i.e. just after the present Contempt Petition,
wherein the same relief was sought. According to the
learned counsel, even if it is treated to be a Civil
Contempt, then also, no case is made out as the
activities were carried out prior to receipt of the order
15of this Court in compliance to the judicial order.
According to him, the allegation of malice is also devoid
of force because the proceeding of Section 285 of the
Municipalities Act was initiated in the year 1985, when
the respondent No.1 was not posted there. While
drawing the attention of the Court towards various
orders filed with the reply, it is submitted that in this
amusement park, there was a complaint that one girl
died on account of accident, which was located to
disturb the public road and the Superintendent of
Police, Udaipur also wrote for the same. According to
him, the orders of the Municipal Board were not signed
by the Commissioner. They were simply signed by the
Administrator, who was not competent to grant the
licence etc. and to issue various corrigendum. He has
further submitted that the news items are no evidence
and if at all, this Court looks into it, there is no
mention that the respondent No.1 was present at the
site as alleged in the petition and the affidavits are self
contradictory to the rejoinder. It was the duty of the
SHO to dismantle as per the direction in judicial
proceedings but he has not been made party to the
petition. The seizure memo was prepared at 12.30 PM
and thereafter, dismantling started, which continued
16upto 6.30 or 7 PM, till stay was received. According to
him, even if this Court comes to the conclusion that
there is any technical disobedience of the orders of this
Court in an interval of half to one hour, the answering
respondents have sought unconditional apology, which
may be accepted. In support of his contentions, he has
relied on various authorities to strengthen his argument
that there cannot be a contempt, unless it is wilful or
deliberate disobedience.
12. Mr.N.M.Lodha, appearing on behalf of respondent
No.2, has submitted that the Addl.Collector Sumatilal
Bohra was not party in the main Misc. Petition and no
notice was served on him and, therefore, he cannot be
held liable for contempt but despite that, when he came
to know from the clerk of the Collector, he immediately
directed the Tehsildar to comply with the orders of this
Court. According to him, this Contempt Petition has
been filed to blackmail the officers, who were
discharging their duties in a lawful manner to protect
public cause.
13. Having bestowed deep consideration on the rival
contentions putforth by the learned counsel for the
17parties, it will be first appropriate to examine as to
whether the present Criminal Contempt Petition filed
u/s.12 of the Act is a Civil Contempt or Criminal
Contempt, which is still kept open by the order of this
Court dated 5.4.99 and also the application of the
petitioner dt.24.2.09 for correction of the caption from
“Criminal” to “Civil” vis a vis the nature of the present
petition.
14. Section 2 of the Act deals with the definition.
Clause (a) of Section 2 defines “contempt of court”
which means either civil contempt or criminal contempt.
Clauses (b) & (c) of Section 2 deals with “civil
contempt” and “criminal contempt” respectively, which
are as under:
“2. Definitions.- In this Act, unless the context
otherwise requires,-(a) xxx
(b) “civil contempt” means wilful disobedience to
any judgment, decree, direction, order, writ or
other process of a court or wilful breach of an
undertaking given to a court;(c) “criminal contempt” means the publication
(whether by words, spoken or written, or by signs,
or by visible representation, or otherwise) of any
matter or the doing of any other act whatsoever
which –(i) scandalises or tends to scandalise, or
lowers or tends to lower the authority of, any
18court; or
(ii) prejudices, or interferes or tends to
interfere with, the due course of any judicial
proceeding; or(iii) interferes or tends to interfere with, or
obstructs or tends to obstruct, the
administration of justice in any other manner.”
15. From the bare perusal of these clauses, it appears
that any disobedience to any judgment, decree,
direction, order, writ or other process of a court or
wilful breach of an undertaking given to a court is civil
contempt, whereas any publication, whether by words,
spoken or written, or by signs, or by visible
representation, or otherwise, of any matter or the doing
of any other act whatsoever which scandalizes or tends
to scandalize, or lowers or tends to lower the authority
of any court or prejudices or interferes or tends to
interfere with, the due course of any judicial proceeding
or obstructs the administration of justice in any
manner, is a criminal contempt. If these definition
clauses of the Act are read in the light of the averments
made in the present contempt petition, particularly with
relief, it appears to be a case of disobedience of this
court’s order dated 23.06.98 passed by the learned
vacation Judge at 4.30 PM at Jodhpur residence which
19was in the form of the directions to the respondents at
Udaipur arrayed in the S.B. Criminal Misc. Petition
No.478/98, being Civil Contempt. But in addition to this
disobedience of the order of this Court dated 23.06.98,
if the petition is read as a whole, there are certain
more allegations. The relevant paras of the contempt
petition are reproduced below:
"7. xxx Since what had transpired in the
learned trial court and under what
circumstances, the case was transferred by the
learned sessions Judge and what was going on
outside the Court, the petitioner could sense it
all very well and hesitate to describe in the
petition lest it might divert the attention of this
Hon’ble Court and may possibly provide some
handle to the other camp to start harassing the
petitioner by filing another contempt against
him.
8. xxx Therefore, on 21.6.1998 itself, a
detailed telegram running into 3 closely typed
pages was sent to all such various authorities at
whose corner the petitioner could apprehend the
dismantling of the establishment, including all
the non-petitioners. A copy of the telegram is
annexed herewith and marked as Annex.A.
10. That despite all apprehensions, the
petitioner as a law abiding citizen believed in
the observations of this Hon’ble Court dated
10.11.1995 and falsely continued to have
faith in the system and applied for certified
copy of the order which was received by him in
the late hours on 22.6.1998.”
16. If the above referred allegations are looked into in
the light of the definition of “criminal contempt” as
20
defined in Clause (c) of Section 2 of the Act, it not only
relates to scandalizing or lowering the authority of the
Court but also in the nature of prejudicing the due
course of judicial proceeding and interference or
obstruction in the administration of justice, because
para 7 as referred-to above, is nothing but it casts
aspersion on the authority of the learned Sessions
Judge, who transferred the case to the learned
Addl.Sessions Judge. Further, para 8 relates to Annex.A
of the petition, which is a three page telegram sent on
21.6.98, copies of the same were also endorsed to
Hon’ble the Chief Justice and judge concerned, who
passed the order in Writ No.1747/97 as well as to the
Civil Judge in Civil Suit No.181/98. Though this
telegram dt.21.6.98 was with regard to the order to be
passed on 22.6.98 in the revision petition against the
order u/s.133 CrPC, wherein the reminder of the earlier
order about stay passed on 24.5.96 by this Court,
Annex.4 was also given. In the last para of this
telegram, it is mentioned that if the order passed on
15.6.98, wherein the time of 7 days was given to the
petitioner to remove the amusement equipments, is
given effect-to, then it will be a contempt of the order
of this Court as well as of the Civil Court and in the
21
last, it is stated that if the revision petition is
dismissed, they would file appeal before the competent
court and till then, no dismantling activities should be
carried out. In the endorsement, apprehension of the
expected order of succeeding day has been brought to
the notice of the Hon’ble Chief Justice as well as the
judge concerned, who passed the order in Writ
No.1747/97. The contents of para 7 & reference of
telegram in para 8 are nothing but are in the nature of
prejudicing & interfering in the due course of judicial
proceeding pending in the court of ADJ No.2, which was
decided on 22.6.98 against the petitioner and also
administration of justice, being clearly within the
purview of Sub Clauses (ii) and (iii) of Clause (c) of
Section 2 of the Act. Likewise, the allegations in para
10 that the petitioner falsely continued to have faith in
the system, is also in the form of scandalizing the
authority of this Court as defined in Sub Clause (i) of
Clause (c) of Section 2 of the Act. Therefore, from both
the angles, the allegations in the Contempt Petition are
designed to bring this petition as the “Criminal
Contempt” as well as the “Civil Contempt”, but the
caption has been given as “Criminal Contempt”.
22
17. When the objection was raised by the learned
Addl.Advocate General that if it is the “Criminal
Contempt”, it should be placed before the Division
Bench and this Court on 5.4.99 kept this matter open
for arguments then the learned counsel for the
petitioner submitted that due to misconception, it has
been stated as the “Criminal Contempt” probably
because the Cr.Misc. Petition was filed on 6.7.98 i.e.
prior to the objection. After 5.4.99, the petitioner never
tried to move an application for correction of caption
but all of a sudden, when this case came up for
arguments, then on 24.2.09, an application for
correction of the caption from “Criminal” to “Civil” has
been moved, whereas Criminal Contempt Petitions
No.39/96 and 26/98 were dismissed by the Division
Bench of this Court on 13.1.09, wherein it was held that
no urgency was shown nor a case was made out for
initiation of Criminal Contempt against the respondents
and, therefore, the matter was allowed to die down by
keeping the same for more than a decade and at no
point of time, the Court took cognizance for Criminal
Contempt in terms of Section 15 of the Act. It was
further observed in this order that neither these
proceedings were initiated suo moto by the court nor
23
the petitioner filed these applications with consent in
writing of the Advocate General as required under
Sec.15 of the Act. In this order, it has also been
observed that it would not be discernible from the
materials on record that it was an act of deliberation or
with any ill motive the respondents had committed any
breach of law or had violated the orders passed by the
competent courts and keeping in view the fact that the
civil for damages was also filed, the petitions were
dismissed with the finding that the petitioners had not
made out any case of criminal contempt against the
respondents.
18. I have gone through the contents of D.B.Cr.Contempt Petition No.26/98, which was
dismissed on 13.1.09 by the Division Bench of this
Court. From a bare reading of paras 42 and 43 of the
said petition, it appears that reference of telegram,
Annex.A as well as of the order passed by the
Addl.Sessions Judge on 22.6.98 and the stay order
granted by this Court on 23.6.98 has been given. It is
also stated that a contempt petition has been filed in
this Court for violation of the order dt.23.6.98. In these
two paras, there is no reference that whether the
24
present Contempt Petition, which is referred in para 43,
is a Civil Contempt or a Criminal Contempt. It will not
be worthwhile to mention as to why there was no
reference of Civil or Criminal Contempt in the
D.B.Cr.Contempt Petition No.26/98 but suffice it to say
that these two paras i.e. paras No.42 and 43 had been
adjudicated upon by the Division Bench of this Court in
the said D.B.Criminal Contempt Petition on 13.1.09, as
discussed above and now this Court on the same facts
cannot reopen it for adjudication, as the limitation for
taking cognizance in the Criminal Contempt Petition is
one year by virtue of Section 20 of the Act.
19. Normally, under Sub Rule (1) of Rule 324 of the
Rules of High Court of Judicature for Rajasthan, 1952,
when an application for taking proceedings in contempt
of Court is presented before a Judge, the same is
placed before the Hon’ble Chief Justice for orders but
this sub-rule (1) is not applicable by virtue of sub-rule
(2) which says that where the contempt consists in
disobedience of a judicial order of the High Court, the
Bench concerned may pass appropriate orders and the
same need not be laid before the Hon’ble Chief Justice.
Though the present matter is also covered in part under
25
sub rule (2) of Rule 324 of the said Rules relating to
disobedience of the order of this court dt.23.6.98 but it
has been titled as S.B.Criminal Contempt, probably
because of the paras 7,8 & 10 of this petition. In such a
situation, Rule 324(2) of the said Rules is not attracted
and the case has to be taken up under Section 15 of the
Act for which the reference has been given by the
Division Bench of this Court in the order dt.13.1.09
passed in the above referred D.B.Cr.Contempt Petition.
Provisions of the Rule 324 of the Rules cannot override
Section 15 of the Act. Since no cognizance has been
taken in this Criminal Contempt Petition for the last
about 11 years and the issue, as referred above,
involved in the present Contempt Petition, has been
adjudicated upon, this Court cannot resort to sub rule
(2) of Rule 324 of the said Rules for disobedience of the
order of this Court dt.23.6.98, especially when the
present Contempt Petition is coupled with the numerous
allegations in the nature of Criminal Contempt, as
discussed above by taking support from the latin maxim
“Nemo debet bis vexari, si constat curiae quod sit pro
una et eadem causa”, which means no one must be
vexed twice, if it appears to the Court that it is for one
and the same cause.
26
20. Even for the sake of argument, which now remains
academic, if this Court goes into disobedience of the
order, being of civil nature for which lengthy arguments
have been advanced, suffice it to say that even the Civil
Contempt is also not made out for the reasons stated
hereinbelow.
21. Firstly, the impugned order dt.23.6.98 was passed
in S.B.Cr.Misc. Petition No.478/98 in which there were
only two respondents viz; State of Rajasthan through
the Collector, Udaipur and Commissioner, Municipal
Council, Udaipur, whereas in the present Contempt
Petition, in addition to the Collector Shri Pandey, the
Addl.Collector viz; Sumatilal Bohra, the Addl.S.P. viz;
Bharat Singh and the Tehsildar Inder Singh Solanki
have been made as party respondents. As a broad
proposition in the common course of nature as well as
of law, contempt proceedings are initiated against those
to whom the notice of Court has been given for
compliance. When the notices were not given to
respondents No.2 to 4, impleading them as party
respondents and as contemners, is per se illegal. The
Commissioner, Municipal Council, Udaipur, who was
party respondent in the Misc. Petition No.478/98 in
27
which the impugned order has been passed on 23.6.98,
has not been even made party to the Contempt petition
and the State of Rajasthan has been made party
through the Collector, who is respondent No.1 in the
Contempt Petition. For the sake of argument, if it is
believed that the respondent No.2 Shri Bohra being
Addl.Collector was also responsible in the absence of
the Collector, then it is to be seen as to how far, his
responsibility persists vis a vis the Addl.S.P. and the
Tehsildar.
22. Learned counsel for the petitioner has tried to
establish the case of Civil Contempt on the basis of
service of notice of Contempt Petition to the
respondents by filing various affidavits, news items and
other documents including the log book of the driver,
who took the material in the mid night of 23.6.98 till
next day morning at 3 AM on 24.6.98. It is an admitted
position that the impugned order was passed on
23.6.98 by the Vacation Judge of this Court at his
residence at 4.30 PM and the same was communicated
by fax to the respondent No.1 i.e. the Collector,
Udaipur as per the allegation in the petition at 17:51
Hrs i.e. at 5.51 PM and to the UIT at 17:55 Hrs i.e. at
28
5.55 PM and also delivered to the employee of the
Collector at his residence, where respondent No.2 i.e.
Addl.Collector was present and he refused to receive
the same. In this regard, if the reply is looked into, it is
clearly stated that at 4 PM, the Collector left Udaipur
and as per the log book filed by him long back in 2005
which is Annex.R.1/1, he visited Tehsil Kherwara at 4
PM and returned at 9 PM. This log book is signed by the
Collector himself and is an official record, the
reference of which has been given in the affidavit also
filed by respondent No.1 in his counter to the rejoinder
in which he has also stated that the allegations are
absolutely false. The log book filed by the petitioner on
23.6.98 is also not supported by affidavit of any
driver or authorized user. In this log book, the entry
about the time of the most of the dates is blank and
five trips of Sukhadia Circle to Municipality have been
shown from 2 PM to 3 AM, the date has been erased
and the driver is Madu but there is no affidavit of this
driver. Even the Column of vehicle No. is also blank.
Likewise in another log book of 23.6.98, time has been
erased and the signatory of the log book is some one
else, who has not filed his affidavit. So far as the other
affidavits are concerned, they have not been filed with
29
the Contempt Petition but are of 9.7.98. First affidavit
is of Hanuman Prasad Sharma in which he stated that
on 23.6.98 at 6 PM, he went at the residence of the
Collector, where Addl.Collector Shri Bohra met and
thereafter a copy was given to him as well as to the PA
to Collector, who made entry in the register and gave it
to the Collector in his presence. If this affidavit is
looked into in the light of para 15 of the Contempt
Petition, it is nowhere stated that PA delivered the copy
to the Collector. The affidavit thus falsifies the version
about the presence of the Collector in the light of the
petition itself and there is every reason to believe that
the Collector was not at the Headquarter on 23.6.98
from 4 PM to 9 PM and as per his reply on getting the
information, he ordered to stop the dismantling work.
Rest of the affidavits are also of no consequence filed
by the petitioner in the light of the above discussion
because Gani Mohd., Vyanktesh, Suryakant and Kailash
are the employees of the petitioner Firm and interested
parties. Likewise, Ramprakash, Ashok Kumar and
Bhimanand are the `thelewalas’ (hawkers), whose
reference has neither been given in the Contempt
Petition with regard to their presence nor they have
produced any licence of hawking.
30
23. So far as the news items are concerned, firstly
they are not admissible in the evidence as the affidavits
of concerned correspondent have not been filed and
secondly in these news items, it is nowhere stated that
the Collector was present at his residence or at the
site. Learned counsel has much stressed on the
affidavit of one Rooplal, another hawker and also
moved an application for initiating proceedings u/s.340
CrPC but it is not specifically stated as to who
presented this affidavit and for the sake of argument,
if it is believed that this Rooplal s/o Nathu is not of
Karakali, Salumbar, then there are two affidavits of this
person from both sides. This Court cannot suo moto
proceed u/s.340 CrPC on the application of the party,
especially when there is a counter affidavit of one
Laxman Singh, who says that Parthia alias Rooplal is
working at his Stall. Further, it is doubtful as to how
these hawkers can prove the identity of administrative
or police authorities.
24. When the Collector was not present on the spot
and rest of the respondents were not party to the Misc.
Petition, wherein impugned order dt.23.6.98 has been
passed and if it is assumed for the moment that the
31
order reached at the residence of the Collector by 6 PM,
which the Collector says to be 7 PM, even then, it
cannot be termed as wilful disobedience of the order of
this Court because the petitioner was asked to remove
the equipments from the Sukhadia Circle by order
dt.15.6.98 of ADM(City) and latest by 22.6.98. He filed
revision against that, which was dismissed on 22.6.98
and on 23.6.98, there was no stay order upto 6 PM
before the respondents and they carried out the orders
of the Court upto 7 PM. It is revealed from the affidavit
of Sh.V.K.Singhvi, Executive Engineer, UIT and
Yashwant Singh Choudhary in which it is clearly stated
that the work was stopped on getting the order of this
Court at the behest of directions of SHO, PS, Amba
Mata and Tehsildar Shri Inder Singh Solanki. Further,
from Annex.15, it is also revealed that the amusement
instruments were seized on 23.6.98 at 12.30 PM itself
in the presence of Tehsildar Shri Inder Singh Solanki
and Dhan Singh in compliance of the orders of the
Court of ADM, Udaipur dt.15.6.98 and of ADJ dt.
22.6.98 and the work was stopped at 7 PM. This is an
official document signed by the SHO, PS, Amba Mata
alongwith the Tehsildar and one Yashwant Singh, who
has also filed his affidavit. When amusement
32
equipments were seized at 12.30 PM, the details of
which have been given in 6 pages being a document of
the police station, there is no allegation that this
document has been forged and, therefore, there is
every reason to believe that the work was stopped at 7
PM and there was absolutely no defiance of the order of
this Court dt.23.6.98. Rather, the respondents acted in
a bonafide manner because there is no substantial
allegation against the respondents that they were
having malice against the petitioner, except one FIR
lodged against the respondents No.1 and 2 on 4.6.98.
The proceedings u/s.285 of the Municipalities Act about
which the argument has been made, were initiated by
Dr.Ashok Singhvi in May, 1996, when the present
respondent No.1 Shri Pandey was not posted at
Udaipur. Annex.R.1/2 to R.1/14, which are of the year
1993, also speaks that how the petitioner has tried to
obtain the licence by getting it extended through
various corrigendum but without going into the legality
and propriety of these documents, suffice it to say that
Annex.R.1/15 dt.22.7.93 is a letter written by
Superintendent of Police, Udaipur to Administrator,
Municipal Board, Udaipur itself speaks about the
ingredients of nuisance defined u/s.133 CrPC in which it
33
is stated that the amusement park installed at Sukhadia
Circle is located at the National Highway No.8, where
large number of people assemble, thereby causing
hurdle to the traffic and also danger to the life of ladies
and small children and on being extended, there may be
public agitation and in the last, it was requested to shift
it at some other place. It is also argued that on account
of this hindrance, there was one complaint about death
of a child. Thus, the initiation of proceeding u/s.133
CrPC and u/s.285 of the Municipalities Act were
undertaken against the petitioner prior to the posting of
respondent No.1 Shri Pandey as Collector, Udaipur,
which clearly counters the allegation of malice.
Accordingly, the petitioner has not been able to make
out a case of Civil Contempt as well.
25. The contention of the learned counsel for the
petitioner that he was not given adequate opportunity
to avail appropriate remedy after passing of the order,
is also devoid of force, because the order was passed
by the ADM for removal of the installations of
amusement park on 15.6.98 and he was given 7 days’
time. He filed revision against that order and that too,
was dismissed on stipulated seventh day i.e. on 22.6.98
34
and on the next day, the proceedings were initiated in
the morning and by 12.30 PM, amusement equipments
were seized and the equipments lying on the road were
shifted for the sake of argument little later, which
cannot be termed as disobedience of the order of this
Court. Seven days’ time cannot be termed as an
unreasonable time, but is surely a breathing time as
observed in the order of this Court on 10.11.95 in Writ
Petition No.3184/95. If the revision was dismissed on
22.6.98, even then the petitioner was not prohibited
from making an application for extension of time for a
day or two to seek remedy by way of extra ordinary
jurisdiction u/s.482 CrPC, but he preferred to send
telegram, Annex.A on day earlier casting aspersion on
the outcome of judicial order. This Court feels not to
make out any inference on such conduct but to
adjudicate the issue in hand, being paramount function
of a Judge.
26. Lastly, the respondents have tendered
unconditional apology, which is not even required in the
light of the facts of the present case, as they have
acted with no malice & performed their duty and in the
interest of the public at large. Public Cause is
35
paramount in a democratic set up than permitting the
profit gaining business like amusement park on a public
road and that too, on national highway.
27. The power of contempt is to be exercised with
great caution and reluctance. The judges’ duty is to
protect public justice, as they have no concern in a
particular case in which the order has been passed
because the punishment is not meted out as a balm to
hurt mind. It has been repeatedly held by the Courts
long ago that a welfare State is protected by its
independent judiciary. If, on technicalities, the Court
exercises its power of contempt, it may adversely affect
its dignity, decency and decorum. While exercising such
power, the Court should have regard to both
considerations viz; the public good on the one hand and
the dignity of the Court on the other. In the light of the
facts and circumstances of the case, as discussed
above, the present litigation which is going on for more
than a decade, is the outcome of technicalities of a
party on the one hand for getting individual benefit and
the maintenance of public order on the other. If in
maintaining the public order, the orders are strictly
implemented and if the executive order hurts the
36
individual gainer, it cannot be termed as an act of Civil
or Criminal Contempt. The manner in which the
petitioner has tried to approach this Court by invoking
extra ordinary jurisdiction of this Court under Section
482 CrPC, when he failed to get the relief in the
revision, shows that he was more conscious about
contempt, rather than to get redressal of his grievance
in a legitimate manner.
28. Consequently, the present Contempt Petition is
neither “Civil” nor “Criminal” and the same is
dismissed. The notices issued to the respondents No.1
to 4 viz; (1) Shrimat Pandey, Collector, Udaipur;
(2) Sumati Lal Bohra, Addl.Collector (City), Udaipur;
(3) Bharat Singh, Addl.S.P. Udaipur; and (4) Inder
Singh Solanki, Tehsildar, Girva, Distt.Udaipur, stand
discharged.
(DEO NARAYAN THANVI), J.
RANKAWAT JK, PS