{"id":136692,"date":"2009-03-09T00:00:00","date_gmt":"2009-03-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/g-b-jain-sons-vs-shri-shrimat-pandya-ors-on-9-march-2009"},"modified":"2016-07-26T17:41:26","modified_gmt":"2016-07-26T12:11:26","slug":"g-b-jain-sons-vs-shri-shrimat-pandya-ors-on-9-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/g-b-jain-sons-vs-shri-shrimat-pandya-ors-on-9-march-2009","title":{"rendered":"G B Jain & Sons vs Shri Shrimat Pandya & Ors on 9 March, 2009"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
G B Jain & Sons vs Shri Shrimat Pandya & Ors on 9 March, 2009<\/div>\n
                                          1\n\n            IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN\n\n                                 AT JODHPUR\n\n                                  O R D E R\n\n\n           G.B.Jain & Sons           Vs.    Shrimat Pandey & ors.\n                  S.B.CR. MISC.CONTEMPT PETITION NO.24\/1998\n\n\n                           UNDER SECTION 12 OF\n                       THE CONTEMPT OF COURTS ACT.\n\n\n           Date of Judgment:                                March 09, 2009\n\n\n                                    P R E S E N T\n\n\n                 HON'BLE MR.JUSTICE DEO NARAYAN THANVI\n\n\n\n           Mr.M.C.Bhoot, for petitioner.\n\n           Mr.M.S.Singhvi)\n           Mr.N.M.Lodha ) for respondents.\n           Mr.B.P.Bohra )\n\n\nREPORTABLE BY THE COURT :<\/pre>\n
           1.   This protracted Contempt Petition filed long back<\/p>\n
           in June, 1998, captioned as “Criminal Contempt”, under<\/p>\n
           Section 12 of the Contempt of Courts Act, hereinafter<\/p>\n
           referred-to as “the Act”, is still under adjudication as to<\/p>\n
           whether   disobedience    of       the   order   of   this   Court<\/p>\n
           dt.23.6.98 passed at 4.30 PM by the Vacation Judge of
\n                                                2<\/span><\/p>\n
this Court at his residence in S.B.Cr. Misc.Stay Petition<\/p>\n
No.340\/98 (Misc. Petition                          No. 478\/1998), amounts to<\/p>\n
Civil or Criminal Contempt.\n<\/p>\n<\/p>\n
2.    Before narrating the brief facts as alleged in the<\/p>\n
Contempt Petition filed on 25.6.98, it is apparent from<\/p>\n
the body of Contempt Petition that it was titled as S.B.<\/p>\n
Criminal Contempt Petition                         but on 5.4.1999, when the<\/p>\n
case came up before the learned Single Judge, learned<\/p>\n
Addl.Advocate          General           raised          an     objection       that   the<\/p>\n
caption     of        the        petition           is       “Criminal        Contempt”,<\/p>\n
therefore,       the       matter        should be              heard    only    by    the<\/p>\n
Division Bench. At this point, learned counsel for the<\/p>\n
petitioner stated that it is a “Civil Contempt” and due to<\/p>\n
misconception,              it     has         been          stated      as    “Criminal<\/p>\n
Contempt”. In view of the above arguments, the learned<\/p>\n
Single Judge deferred the matter for two days to first<\/p>\n
decide     as    to    whether            it       is    a    “Civil    Contempt”       or<\/p>\n
“Criminal Contempt”. Then the case was adjourned for<\/p>\n
one   reason          or     the    other.              Ultimately,      on     16.2.09,<\/p>\n
learned counsel Mr.M.S.Singhvi appearing on behalf of<\/p>\n
respondents submitted that this petition has become<\/p>\n
infructuous, as the Division Bench has already decided<\/p>\n
one   of   the     issue         involved           in       this   Cr.Misc.Contempt
\n                                       3<\/span><\/p>\n
Petition   in   D.B.Cr.Contempt            Petitions     No.26\/98    and<\/p>\n
No.39\/96 on 13.1.09. A copy of the said order was<\/p>\n
supplied   to   Mr.M.C.Bhoot,             learned   counsel    for   the<\/p>\n
petitioner, to which Mr.Bhoot wanted time to verify and<\/p>\n
make submissions on 20.2.99 and further submitted<\/p>\n
that   unless      the         record       of   both      these     two<\/p>\n
D.B.Cr.Contempt Petition is called for, the proceedings<\/p>\n
of those Contempt Petitions cannot be referred in this<\/p>\n
Contempt Petition. Upon this, with the consent of both<\/p>\n
the parties, the record was ordered to be called for , to<\/p>\n
decide as to whether this is a “Civil Contempt” or<\/p>\n
“Criminal Contempt as well as this                     petition and the<\/p>\n
case was posted on 25.2.09. Previous to that date,<\/p>\n
learned    counsel       for    the       petitioner     submitted    an<\/p>\n
application for correction of the caption from “Criminal<\/p>\n
Contempt” to “Civil Contempt” alongwith the amended<\/p>\n
cause title. Reply to the same was also filed by the<\/p>\n
respondents showing the conduct of the petitioner in<\/p>\n
judicial proceedings in S.B.Civil Revision No.114\/04. On<\/p>\n
2.3.09, when the case             was listed,          disposal of this<\/p>\n
application for correction of caption was also kept open<\/p>\n
with the main petition. Accordingly, the arguments on<\/p>\n
the main petition alongwith the question as to whether<\/p>\n
it is a “Civil Contempt” or “Criminal Contempt” and the
\n                                     4<\/span><\/p>\n
application for correction          of the caption were heard at<\/p>\n
length.\n<\/p>\n<\/p>\n
3.   The order of this Court passed in S.B.Cr.Misc.Stay<\/p>\n
Petition No.340\/98 in S.B.Cr. Misc. Petition No.478\/98<\/p>\n
reads as under:\n<\/p>\n
     “Issue notice to the respondents, returnable on
\n     26 t h June, 1998. Be given Dasti for service.<\/p>\n
     In the meanwhile, status quo as it exists today be
\n     maintained.”\n<\/p><\/blockquote>\n
4.   The respondents in this Cr.Misc. Petition were two<\/p>\n
viz; State of Rajasthan through Collector Udaipur and<\/p>\n
Commissioner Municipal Council Udaipur, whereas the<\/p>\n
present Contempt Petition has been filed against four<\/p>\n
persons viz; (1) Shrimat Pandey, Collector, Udaipur; (2)<\/p>\n
Sumati Lal Bohra, Addl.Collector (City), Udaipur; (3)<\/p>\n
Bharat Singh, Addl.S.P. Udaipur; and (4) Inder Singh<\/p>\n
Solanki, Tehsildar, Girva, Distt.Udaipur.<\/p>\n
5.   In    short,     the   facts       of   the   present    Contempt<\/p>\n
Petition are that on 7.9.1995, a conditional order was<\/p>\n
issued to the petitioner u\/s.133 CrPC, whereby he was<\/p>\n
called    upon   to    remove       the      amusement       equipments<\/p>\n
commissioned at the places leased out\/licensed to the
\n                                       5<\/span><\/p>\n
petitioner     by the     Municipal         Council. Petitioner        while<\/p>\n
giving the background of other circumstances detailed<\/p>\n
in the main petition u\/s.482 CrPC (478\/98) as well as in<\/p>\n
S.B.Civil     Writ     Petitions      No.3184\/95         and    1747\/96,<\/p>\n
apprehended dismantling of his equipments under the<\/p>\n
garb   of    Section     133    CrPC       despite    orders    from    the<\/p>\n
various courts referred in the above petitions, for which<\/p>\n
no detailed reference is required. Ultimately, the trial<\/p>\n
Court decided the proceedings u\/s.133 CrPC on 15.6.98<\/p>\n
with   a     direction   to    remove        the    establishment\/       the<\/p>\n
entertainment park within 7 days i.e. by 22.6.98, else,<\/p>\n
the case will be registered against him under Sec.188<\/p>\n
IPC    and    the    SHO,      Amba        Mata      shall    remove    the<\/p>\n
equipments, confiscate them with the help of the Urban<\/p>\n
Improvement Trust for which the expenditure shall be<\/p>\n
recovered from the petitioner. Petitioner preferred a<\/p>\n
revision     petition    against      it    on     18.6.98,    which    was<\/p>\n
admitted on 19.6.98 by the learned Sessions Judge,<\/p>\n
who transferred the same to the ADJ No.2, Udaipur. The<\/p>\n
case was fixed on 20.6.98 for final hearing and after<\/p>\n
hearing the final arguments on 22.6.98, the revision<\/p>\n
was dismissed against which the petitioner preferred<\/p>\n
the Cr.Misc. Petition being No.478\/98 and obtained the<\/p>\n
impugned stay order on 23.6.98, the disobedience of
\n                                          6<\/span><\/p>\n
which is under challenge in this Contempt Petition. It is<\/p>\n
also   alleged      in     the   Contempt       Petition   that prior         to<\/p>\n
passing      of     this    order,       petitioner    sent      a    detailed<\/p>\n
telegram to the authorities on 21.6.98. In the Contempt<\/p>\n
Petition, it is also alleged that the respondents blatantly<\/p>\n
belied the following order of this Court passed in Writ<\/p>\n
Petition      No.3184\/95            on       10.11.95,     whereby          the<\/p>\n
conditional order u\/s.133 CrPC was challenged:<\/p>\n
       “In case, the proceedings are ultimately held
\n       against the petitioner and there is an imminent
\n       direction of dispossession, the petitioner would be
\n       granted breathing time to move the other
\n       appropriate forums available to him under the
\n       law.”\n<\/p><\/blockquote>\n
6.     On getting the certified copy, the petitioner filed<\/p>\n
the present Misc. Petition, obtained the stay order at<\/p>\n
the residence of the Vacation Judge on 23.6.98 at 4.30<\/p>\n
PM and sent a fax to respondent No.1 i.e. the Collector<\/p>\n
Udaipur at 17:51 Hrs and also to U.I.T. at 17:55 Hrs. It<\/p>\n
is   also    pleaded       in    this   contempt      petition       that   Shri<\/p>\n
Hanuman           Prasad          Sharma,         advocate            and     a<\/p>\n
representative of the petitioner Shri Gani Mohd. also<\/p>\n
went    at    the     residence         of   respondent       No.1,     where<\/p>\n
Sumatilal Bohra, respondent No.2, was present, who<\/p>\n
read it and thereafter refused to receive it officially and
\n                                     7<\/span><\/p>\n
returned      the   same.        Their    oral   request      was       also<\/p>\n
declined.     The   P.A.   of    the     respondent       No.1   i.e.   the<\/p>\n
Collector, Udaipur was available at the residence was<\/p>\n
delivered the copy at 6 PM               and he made an entry to<\/p>\n
that effect in the register. Both the representatives of<\/p>\n
the petitioner went at the site at 6.15 PM but none of<\/p>\n
the   non-petitioners       present on       the    site    obliged     the<\/p>\n
petitioner by respecting the order of this Court and<\/p>\n
bluntly declined to receive it. By reading and showing<\/p>\n
the stay order to them, added fuel to the fire and from<\/p>\n
7     PM    onwards,       the     activities      were      additionally<\/p>\n
intensified inasmuch as thereafter the respondents No.1<\/p>\n
and 2 reached at the site at 8.30 PM, commissioned<\/p>\n
additional    labourers      and    machineries        and    destroyed<\/p>\n
equipments. This       process          continued   upto     10.30      PM.<\/p>\n
However, further dismantling activities continued till<\/p>\n
late night by acting under vengeance. The incident was<\/p>\n
also reported in the press, the copies of which have<\/p>\n
been attached with the file, which according to the<\/p>\n
petitioner,    supports     his    version.      The   copies     of    the<\/p>\n
notices were sent by fax on 26.6.98 for appearance of<\/p>\n
the respondent No.1 but the fax machine was switched<\/p>\n
off and later on somehow or the other, they were<\/p>\n
received. It is also alleged in the petition that these
\n                                          8<\/span><\/p>\n
dismantling activities were undertaken in defiance of<\/p>\n
this Court’s order by respondents No.1 and 2 and just<\/p>\n
to wreak vengeance on account of filing criminal case<\/p>\n
against them and they are guilty of wilful and deliberate<\/p>\n
disobedience of the stay order of this Court and in<\/p>\n
order to uphold the majesty and dignity of the order of<\/p>\n
this Court, stern action be taken against them with<\/p>\n
maximum            punishment.       Alongwith        this     petition,         an<\/p>\n
affidavit    of     the     petitioner       has   been    filed    vis    a    vis<\/p>\n
Annex.A,       a    copy      of   the   telegram     addressed           to    six<\/p>\n
persons      dt.21.6.98,           Annex.B         telegram        dt.22.6.98,<\/p>\n
Annex.C fax copy dt.23.6.98 and Annex.D photostat<\/p>\n
copies of the news items.\n<\/p>\n<\/p>\n
7.     Reply       to   the    Contempt        Petition    has     been        filed<\/p>\n
jointly by the respondents No.1 and 2 in which they<\/p>\n
have denied for having committed any contempt and<\/p>\n
have    also       stated     at   the   outset     that     advertently         or<\/p>\n
inadvertently, if any contempt has been committed by<\/p>\n
them,       they        tender      unconditional          apology.        While<\/p>\n
admitting various orders passed in the proceedings as<\/p>\n
referred-to above, it has been stated that the final<\/p>\n
order u\/s.133 CrPC was passed by the Addl.District<\/p>\n
Magistrate (City) Udaipur on 15.6.98 and 7 days’ time
\n                                          9<\/span><\/p>\n
was granted to the petitioner to remove the equipments<\/p>\n
installed      at    the    amusement          park        by    22.6.98.     The<\/p>\n
revision was also dismissed against this order by the<\/p>\n
ADJ No.2, Udaipur and in compliance of the order, the<\/p>\n
SHO, PS, Amba Mata went on the spot by taking the aid<\/p>\n
of the UIT and seized the property at 12.30 PM and<\/p>\n
started     dismantling           the    equipments             fixed    at    the<\/p>\n
amusement park.              It is stated in the reply that some<\/p>\n
person on behalf of the petitioner came at the residence<\/p>\n
of respondent No.1 i.e. the Collector and delivered the<\/p>\n
message to the Security Guard at 6.30 PM, who in turn,<\/p>\n
delivered       the        same     to   one        Shri    Chauhan,          LDC.<\/p>\n
Respondent No.1 i.e. the Collector, Udaipur, who had<\/p>\n
left for inspection at 4 PM on the same day and was not<\/p>\n
available      at     the    time    the     message            was    delivered.<\/p>\n
Therefore,          Shri    Chauhan          read     the       message       and<\/p>\n
immediately contacted the Addl.Collector, respondent<\/p>\n
No.2, who in turn, directed the respondent No.4 Inder<\/p>\n
Singh Solanki, Tehsildar, Girwa that the status quo be<\/p>\n
maintained and work be stayed and the order of this<\/p>\n
Court     be   complied       with.      Respondent             No.4    Tehsildar<\/p>\n
reached at the spot at 7 PM and informed the SHO,<\/p>\n
Amba Mata to comply with the order of this Court. The<\/p>\n
dismantled material was loaded in the trucks provided
\n                                 10<\/span><\/p>\n
by the UIT and dumped in the compound of Municipal<\/p>\n
Council, Udaipur for safety. Despite complying with the<\/p>\n
directions contained in the judicial orders 15.6.98 and<\/p>\n
22.6.98,    petitioner    has    made    wild     and     baseless<\/p>\n
allegations to gain the sympathy of this Court to hide<\/p>\n
his fault. They have denied that the respondents No.1<\/p>\n
and 2 ever visited the site and no deliberate, malicious<\/p>\n
and contemptuous act was done by them. Respondent<\/p>\n
No.2 has also filed affidavit in support of his reply.<\/p>\n
Respondents      No.3     Bharat      Singh,     Addl.S.P.      and<\/p>\n
respondent No.4 Inder Singh Solanki, Tehsildar have<\/p>\n
submitted the reply to the extent of the facts relating<\/p>\n
to them, narrated by respondents No.1 and 2 and have<\/p>\n
also filed their affidavits.\n<\/p>\n<\/p>\n
8.    Thereafter, a rejoinder was filed by the petitioner<\/p>\n
in which it is stated that the respondent No.1 has not<\/p>\n
filed affidavit in support of the reply and reply of all the<\/p>\n
respondents is ex facie false and by & large, repeated<\/p>\n
the same facts as stated in the main Contempt Petition.<\/p>\n
In the last, it is also stated that the action of the<\/p>\n
respondents in removing the equipments on 23.6.98 by<\/p>\n
itself tantamounts to criminal contempt in the light of<\/p>\n
the   earlier   order    made    by   this     Court    for   giving
\n                                      11<\/span><\/p>\n
breathing time. It is also stated that the petitioner has<\/p>\n
been      literally    ruined      and      in   such     circumstances,<\/p>\n
tendering of apology is of no consequence, unless the<\/p>\n
status     quo    is   restored,      as    it   existed    on     22.6.98.<\/p>\n
Petitioner has also filed the affidavit in support of it<\/p>\n
alongwith additional affidavits of one Hanuman Prasad<\/p>\n
Sharma          advocate,         Gani      Mohd.,        Ram      Prakash,<\/p>\n
Vyanktesh, Ashok Kumar, Suryakant, Bhimanand and<\/p>\n
Kailash in which they have stated that the dismantling<\/p>\n
activity was going on at 10.30 PM, where respondents<\/p>\n
No.1 and 2 were present. In addition, the copies of<\/p>\n
newspaper        items    of      24.6.98    have    also       been    filed.<\/p>\n
Thereafter,       additional       affidavit     was      filed    by       Shri<\/p>\n
Pandey,      Collector       in   which     he    has     supported          the<\/p>\n
averments taken in the reply and clearly stated that he<\/p>\n
was not immediately available. His staff informed the<\/p>\n
Addl.Collector,        respondent         No.2   with     regard       to    the<\/p>\n
receipt    of    the   fax     message,      who     in   turn,    directed<\/p>\n
respondent No.4          to comply with the directions of this<\/p>\n
Court. Accordingly, whatever material was dismantled<\/p>\n
till the time of receipt of the order, was also carried to<\/p>\n
the    Municipal       Council.      The     allegations        have        been<\/p>\n
emphatically denied by him in his additional affidavit.<\/p>\n
The similar affidavit has been filed by the respondent
\n                                          12<\/span><\/p>\n
No.2 Sumati Lal Bohra. Petitioner also submitted 11<\/p>\n
documents alongwith his affidavit again on 16.11.98<\/p>\n
relating      to    the        proceedings     under       the     Rajasthan<\/p>\n
Municipalities Act and also by the District Magistrate,<\/p>\n
Udaipur in Case No.76\/95 etc. including the order of<\/p>\n
this Court passed in Civil Writ No.1747\/96 and the copy<\/p>\n
of the FIR Annex.9 filed against respondents No.1 and 2<\/p>\n
on 4.6.98, log book, Commissioner’s report etc.<\/p>\n
9.      A   counter       to    the   rejoinder      was    also    filed    by<\/p>\n
respondent No.1 with the support of 15 documents<\/p>\n
marked as Annex.R1\/1 to R1\/15 relating to the log<\/p>\n
book, applications, licence, letters etc. They have also<\/p>\n
filed   the    affidavits        of   V.K.Singhvi,     Yeshwant        Singh<\/p>\n
Choudhary, Rooplal & Dhan Singh Rathore. Petitioner<\/p>\n
also moved an application with the affidavit of one<\/p>\n
Narayan Singh that Rooplal is not the same, whose<\/p>\n
affidavit     has     been       filed    by   the    respondents           also<\/p>\n
alongwith the counter affidavit of one Rooplal s\/o Nathu<\/p>\n
Meena so as to make out a case of enquiry under<\/p>\n
Section 340 CrPC.\n<\/p>\n<\/p>\n
10.     On the basis of the petition and the documents<\/p>\n
filed by the petitioner, it is contended by Mr.M.C.Bhoot
\n                                       13<\/span><\/p>\n
learned counsel for the petitioner that the respondents<\/p>\n
have   taken     false   pleas    that        they     were       not    having<\/p>\n
knowledge of the order of this Court dt.23.6.98, which<\/p>\n
was delivered to them at 6 PM and the work continued<\/p>\n
upto 3 AM as per the log book. The respondents also<\/p>\n
tried to obtain false affidavit of Rooplal whereas the<\/p>\n
affidavit filed by the petitioner is more genuine. The<\/p>\n
seizure memo is contrary to Commissioner’s report.<\/p>\n
According to him, there is no specific denial with regard<\/p>\n
to the affidavits filed by the petitioner in the reply filed<\/p>\n
by respondent No.2. The action of the respondent was<\/p>\n
in utter disregard of the order of this Court as well as<\/p>\n
the earlier orders. They were having malice with the<\/p>\n
petitioner, as they also initiated proceedings u\/s.285 of<\/p>\n
the Rajasthan Municipalities Act. According to him, this<\/p>\n
Contempt Petition should be treated as a Civil Contempt<\/p>\n
punishable      under    Sec.12       of     the    Act     and    the       order<\/p>\n
passed on 13.1.09 by the Division Bench of this Court<\/p>\n
in   Criminal    Contempt        is        behind     the    back        of    the<\/p>\n
petitioner. It has been further argued by Mr.M.C.Bhoot<\/p>\n
that the log book filed y respondent No.1 in 2005<\/p>\n
cannot   be     looked   into    at        this    later    stage.      It    is   a<\/p>\n
manipulated document. The malice of the respondents<\/p>\n
is clear from the letter Annex.8 in which the reference
\n                                   14<\/span><\/p>\n
of the discussion with the Collector has been given. The<\/p>\n
action being malafide and deliberate, the respondents<\/p>\n
should   be   adequately      punished.        In   support     of    his<\/p>\n
contentions, he has also placed reliance on the case of<\/p>\n
State of Raj. v. Smt.Sohani Devi reported in                  1999(1)<\/p>\n
RLW p.269, dealing with breach of injunction order<\/p>\n
under Order 39, Rule 1 & 2 read with Section 151 CPC.<\/p>\n
11.   In reply, Mr.M.S.Singhvi, learned counsel for the<\/p>\n
respondents has submitted that it is a case of Criminal<\/p>\n
Contempt in the light of the orders passed by the<\/p>\n
Division Bench, referred-to above, wherein allegations<\/p>\n
were similar to that of the present Contempt Petition.<\/p>\n
This Contempt Petition should be dismissed by virtue of<\/p>\n
Section 20 of the Act. According to the learned counsel,<\/p>\n
petitioner to gain his profit out of the business, has<\/p>\n
falsely implicated the respondents in various litigations<\/p>\n
and this Court has observed so while deciding the above<\/p>\n
two   D.B.Cr.Contempt        Petitions,   which      were     filed   on<\/p>\n
6.7.98 i.e. just after the present Contempt Petition,<\/p>\n
wherein the same relief was sought. According to the<\/p>\n
learned counsel, even if it is treated to be a Civil<\/p>\n
Contempt,     then   also,   no    case   is    made   out     as     the<\/p>\n
activities were carried out prior to receipt of the order
\n                                       15<\/span><\/p>\n
of    this   Court   in     compliance       to     the    judicial    order.<\/p>\n
According to him, the allegation of malice is also devoid<\/p>\n
of force because the proceeding of Section 285 of the<\/p>\n
Municipalities Act was initiated in the year 1985, when<\/p>\n
the    respondent       No.1        was    not    posted     there.    While<\/p>\n
drawing the attention of the Court towards various<\/p>\n
orders filed with the reply, it is submitted that in this<\/p>\n
amusement park, there was a complaint that one girl<\/p>\n
died    on    account     of    accident,        which    was   located    to<\/p>\n
disturb      the   public      road   and    the     Superintendent        of<\/p>\n
Police, Udaipur also wrote for the same. According to<\/p>\n
him, the orders of the Municipal Board were not signed<\/p>\n
by the Commissioner. They were simply signed by the<\/p>\n
Administrator, who was not competent to grant the<\/p>\n
licence etc. and to issue various corrigendum. He has<\/p>\n
further submitted that the news items are no evidence<\/p>\n
and if at all, this Court looks into it, there is no<\/p>\n
mention that the respondent No.1 was present at the<\/p>\n
site as alleged in the petition and the affidavits are self<\/p>\n
contradictory to the rejoinder. It was the duty of the<\/p>\n
SHO     to    dismantle        as   per    the    direction     in    judicial<\/p>\n
proceedings but he has not been made party to the<\/p>\n
petition. The seizure memo was prepared at 12.30 PM<\/p>\n
and thereafter, dismantling started, which continued
\n                                  16<\/span><\/p>\n
upto 6.30 or 7 PM, till stay was received. According to<\/p>\n
him, even if this Court comes to the conclusion that<\/p>\n
there is any technical disobedience of the orders of this<\/p>\n
Court in an interval of half to one hour, the answering<\/p>\n
respondents have sought unconditional apology, which<\/p>\n
may be accepted. In support of his contentions, he has<\/p>\n
relied on various authorities to strengthen his argument<\/p>\n
that there cannot be a contempt, unless it is wilful or<\/p>\n
deliberate disobedience.\n<\/p>\n<\/p>\n
12.    Mr.N.M.Lodha, appearing on behalf of respondent<\/p>\n
No.2, has submitted that the Addl.Collector Sumatilal<\/p>\n
Bohra was not party in the main Misc. Petition and no<\/p>\n
notice was served on him and, therefore, he cannot be<\/p>\n
held liable for contempt but despite that, when he came<\/p>\n
to know from the clerk of the Collector, he immediately<\/p>\n
directed the Tehsildar to comply with the orders of this<\/p>\n
Court. According to him, this Contempt Petition has<\/p>\n
been    filed   to   blackmail        the   officers,   who   were<\/p>\n
discharging their duties in a lawful manner to protect<\/p>\n
public cause.\n<\/p>\n<\/p>\n
13.    Having bestowed deep consideration on the rival<\/p>\n
contentions putforth by the learned counsel for the
\n                                         17<\/span><\/p>\n
parties, it will be first appropriate to examine as to<\/p>\n
whether the present Criminal Contempt Petition filed<\/p>\n
u\/s.12    of   the    Act    is    a    Civil   Contempt     or   Criminal<\/p>\n
Contempt, which is           still kept open by the order of this<\/p>\n
Court dated 5.4.99 and also the application of the<\/p>\n
petitioner dt.24.2.09 for correction of the caption from<\/p>\n
“Criminal” to “Civil” vis a vis the nature of the present<\/p>\n
petition.\n<\/p>\n<\/p>\n
14.   Section 2 of the Act deals with the definition.<\/p>\n
Clause (a) of Section 2 defines “contempt of court”<\/p>\n
which means either civil contempt or criminal contempt.<\/p>\n
Clauses     (b)   &    (c)    of       Section   2   deals    with   “civil<\/p>\n
contempt” and “criminal contempt” respectively, which<\/p>\n
are as under:\n<\/p>\n
      “2. Definitions.- In this Act, unless the context
\n      otherwise requires,-\n<\/p><\/blockquote>\n
      (a) xxx\n<\/p><\/blockquote>\n
      (b) “civil contempt” means wilful disobedience to
\n      any judgment, decree, direction, order, writ or
\n      other process of a court or wilful breach of an
\n      undertaking given to a court;\n<\/p><\/blockquote>\n
      (c) “criminal contempt” means the publication
\n      (whether by words, spoken or written, or by signs,
\n      or by visible representation, or otherwise) of any
\n      matter or the doing of any other act whatsoever
\n      which –\n<\/p><\/blockquote>\n
            (i)  scandalises or tends to scandalise, or
\n            lowers or tends to lower the authority of, any
\n                                    18<\/span><\/p>\n
           court; or<\/p>\n<\/blockquote>\n
           (ii) prejudices, or interferes or tends to
\n           interfere with, the due course of any judicial
\n           proceeding; or<\/p>\n<\/blockquote>\n
           (iii) interferes or tends to interfere with, or
\n           obstructs     or   tends    to   obstruct,  the
\n           administration of justice in any other manner.”\n<\/p><\/blockquote>\n<\/blockquote>\n
15.     From the bare perusal of these clauses, it appears<\/p>\n
that     any     disobedience      to    any   judgment,      decree,<\/p>\n
direction, order, writ or other process of a court or<\/p>\n
wilful breach of an undertaking given to a court is civil<\/p>\n
contempt, whereas any publication, whether by words,<\/p>\n
spoken      or     written,   or    by    signs,    or   by    visible<\/p>\n
representation, or otherwise, of any matter or the doing<\/p>\n
of any other act whatsoever which scandalizes or tends<\/p>\n
to scandalize, or lowers or tends to lower the authority<\/p>\n
of any court or prejudices or interferes or tends to<\/p>\n
interfere with, the due course of any judicial proceeding<\/p>\n
or     obstructs    the   administration       of   justice   in   any<\/p>\n
manner, is a criminal contempt.                If these definition<\/p>\n
clauses of the Act are read in the light of the averments<\/p>\n
made in the present contempt petition, particularly with<\/p>\n
relief, it appears to be a case of disobedience of this<\/p>\n
court’s order dated 23.06.98 passed by the learned<\/p>\n
vacation Judge at 4.30 PM at Jodhpur residence which
\n                                19<\/span><\/p>\n
was in the form of the directions to the respondents at<\/p>\n
Udaipur   arrayed   in   the   S.B.   Criminal   Misc.   Petition<\/p>\n
No.478\/98, being Civil Contempt. But in addition to this<\/p>\n
disobedience of the order of this Court dated 23.06.98,<\/p>\n
if the petition is read as a whole, there are certain<\/p>\n
more allegations. The relevant paras of the contempt<\/p>\n
petition are reproduced below:\n<\/p><\/blockquote>\n
        \"7. xxx      Since what had transpired in the\n        learned     trial   court    and    under     what\n<\/pre>\n
        circumstances, the case was transferred by the
\n        learned sessions Judge and what was going on
\n        outside the Court, the petitioner could sense it
\n        all very well and hesitate to describe in the
\n        petition lest it might divert the attention of this
\n        Hon’ble Court and may possibly provide some
\n        handle to the other camp to start harassing the
\n        petitioner by filing another contempt against
\n        him.\n<\/p><\/blockquote>\n
        8. xxx     Therefore, on 21.6.1998 itself, a
\n        detailed telegram running into 3 closely typed
\n        pages was sent to all such various authorities at
\n        whose corner the petitioner could apprehend the
\n        dismantling of the establishment, including all
\n        the non-petitioners. A copy of the telegram is
\n        annexed herewith and marked as Annex.A.\n<\/p><\/blockquote>\n
        10.    That  despite   all apprehensions,   the
\n        petitioner as a law abiding citizen believed in
\n        the observations of this Hon’ble Court dated
\n        10.11.1995 and falsely continued to have
\n        faith in the system and applied for certified
\n        copy of the order which was received by him in
\n        the late hours on 22.6.1998.”\n<\/p><\/blockquote>\n
16.   If the above referred allegations are looked into in<\/p>\n
the light of the definition of “criminal contempt” as
\n                                       20<\/span><\/p>\n
defined in Clause (c) of Section 2 of the Act, it not only<\/p>\n
relates to scandalizing or lowering the authority of the<\/p>\n
Court but also in the nature of prejudicing the due<\/p>\n
course    of    judicial     proceeding          and      interference      or<\/p>\n
obstruction in the administration of justice, because<\/p>\n
para 7 as referred-to above, is nothing but it casts<\/p>\n
aspersion      on    the    authority      of    the    learned      Sessions<\/p>\n
Judge,    who       transferred       the       case     to   the     learned<\/p>\n
Addl.Sessions Judge. Further, para 8 relates to Annex.A<\/p>\n
of the petition, which is a three page telegram sent on<\/p>\n
21.6.98, copies of the same were also endorsed to<\/p>\n
Hon’ble the Chief Justice and judge concerned, who<\/p>\n
passed the order in Writ No.1747\/97 as well as to the<\/p>\n
Civil   Judge       in   Civil   Suit      No.181\/98.         Though       this<\/p>\n
telegram dt.21.6.98 was with regard to the order to be<\/p>\n
passed on 22.6.98 in the revision petition against the<\/p>\n
order u\/s.133 CrPC, wherein the reminder of the earlier<\/p>\n
order about stay passed on 24.5.96 by this Court,<\/p>\n
Annex.4     was      also    given.     In      the    last   para    of   this<\/p>\n
telegram, it is mentioned that if the order passed on<\/p>\n
15.6.98, wherein the time of 7 days was given to the<\/p>\n
petitioner to remove the amusement equipments, is<\/p>\n
given effect-to, then it will be a contempt of the order<\/p>\n
of this Court as well as of the Civil Court and in the
\n                                        21<\/span><\/p>\n
last,   it    is     stated    that    if   the     revision      petition    is<\/p>\n
dismissed, they would file appeal before the competent<\/p>\n
court and till then, no dismantling activities should be<\/p>\n
carried out. In the endorsement, apprehension of the<\/p>\n
expected order of succeeding day has been brought to<\/p>\n
the notice of the Hon’ble Chief Justice as well as the<\/p>\n
judge        concerned,       who      passed       the    order     in    Writ<\/p>\n
No.1747\/97. The contents of para 7 & reference of<\/p>\n
telegram in para 8 are nothing but are in the nature of<\/p>\n
prejudicing & interfering in the due course of judicial<\/p>\n
proceeding pending in the court of ADJ No.2, which was<\/p>\n
decided       on     22.6.98    against      the    petitioner      and    also<\/p>\n
administration          of    justice,      being    clearly      within     the<\/p>\n
purview of Sub Clauses (ii) and (iii) of Clause (c) of<\/p>\n
Section 2 of the Act. Likewise, the allegations in para<\/p>\n
10 that the petitioner falsely continued to have faith in<\/p>\n
the system, is also in the form of scandalizing the<\/p>\n
authority of this Court as defined in Sub Clause (i) of<\/p>\n
Clause (c) of Section 2 of the Act. Therefore, from both<\/p>\n
the angles, the allegations in the Contempt Petition are<\/p>\n
designed        to    bring     this     petition     as    the     “Criminal<\/p>\n
Contempt” as well as the “Civil Contempt”, but the<\/p>\n
caption has been given as “Criminal Contempt”.
\n                                           22<\/span><\/p>\n
17.    When the          objection was raised by the learned<\/p>\n
Addl.Advocate           General      that        if     it    is    the     “Criminal<\/p>\n
Contempt”,        it    should     be     placed         before       the    Division<\/p>\n
Bench and this Court on 5.4.99 kept this matter open<\/p>\n
for    arguments            then   the         learned         counsel       for     the<\/p>\n
petitioner submitted that due to misconception, it has<\/p>\n
been     stated        as    the   “Criminal            Contempt”           probably<\/p>\n
because the Cr.Misc. Petition was filed on 6.7.98 i.e.<\/p>\n
prior to the objection. After 5.4.99, the petitioner never<\/p>\n
tried to move an application for correction of caption<\/p>\n
but    all   of   a    sudden,      when         this        case    came     up     for<\/p>\n
arguments,            then    on    24.2.09,             an        application       for<\/p>\n
correction of the caption from “Criminal” to “Civil” has<\/p>\n
been     moved,         whereas         Criminal             Contempt       Petitions<\/p>\n
No.39\/96 and 26\/98 were dismissed by the Division<\/p>\n
Bench of this Court on 13.1.09, wherein it was held that<\/p>\n
no urgency was shown nor a case was made out for<\/p>\n
initiation of Criminal Contempt against the respondents<\/p>\n
and, therefore, the matter was allowed to die down by<\/p>\n
keeping the same for more than a decade and at no<\/p>\n
point of time, the Court took cognizance for Criminal<\/p>\n
Contempt in terms of Section 15 of the Act. It was<\/p>\n
further      observed         in   this        order     that       neither        these<\/p>\n
proceedings were initiated suo moto by the court nor
\n                                   23<\/span><\/p>\n
the petitioner filed these applications with consent in<\/p>\n
writing of the Advocate General               as required under<\/p>\n
Sec.15 of the Act. In this order, it has also been<\/p>\n
observed that it would not be discernible from the<\/p>\n
materials on record that it was an act of deliberation or<\/p>\n
with any ill motive the respondents had committed any<\/p>\n
breach of law or had violated the orders passed by the<\/p>\n
competent courts and keeping in view the fact that the<\/p>\n
civil for damages was also filed, the petitions were<\/p>\n
dismissed with the finding that the petitioners had not<\/p>\n
made out any case of criminal contempt against the<\/p>\n
respondents.\n<\/p>\n<\/p>\n
18.   I   have      gone      through       the      contents    of\n\nD.B.Cr.Contempt         Petition       No.26\/98,      which     was\n\n<\/pre>\n
dismissed on 13.1.09 by the Division Bench of this<\/p>\n
Court. From a bare reading of paras 42 and 43 of the<\/p>\n
said petition, it appears that reference of telegram,<\/p>\n
Annex.A   as     well   as   of    the   order    passed   by   the<\/p>\n
Addl.Sessions Judge on 22.6.98 and the stay order<\/p>\n
granted by this Court on 23.6.98 has been given. It is<\/p>\n
also stated that a contempt petition has been filed in<\/p>\n
this Court for violation of the order dt.23.6.98. In these<\/p>\n
two   paras,   there    is   no   reference   that   whether    the
\n                               24<\/span><\/p>\n
present Contempt Petition, which is referred in para 43,<\/p>\n
is a Civil Contempt or a Criminal Contempt. It will not<\/p>\n
be worthwhile to mention as to why there was no<\/p>\n
reference   of   Civil   or   Criminal   Contempt   in   the<\/p>\n
D.B.Cr.Contempt Petition No.26\/98 but suffice it to say<\/p>\n
that these two paras i.e. paras No.42 and 43 had been<\/p>\n
adjudicated upon by the Division Bench of this Court in<\/p>\n
the said D.B.Criminal Contempt Petition on 13.1.09, as<\/p>\n
discussed above and now this Court on the same facts<\/p>\n
cannot reopen it for adjudication, as the limitation for<\/p>\n
taking cognizance in the Criminal Contempt Petition is<\/p>\n
one year by virtue of Section 20 of the Act.<\/p>\n
19.   Normally, under Sub Rule (1) of Rule 324 of the<\/p>\n
Rules of High Court of Judicature for Rajasthan, 1952,<\/p>\n
when an application for taking proceedings in contempt<\/p>\n
of Court    is presented before a Judge, the same is<\/p>\n
placed before the Hon’ble Chief Justice for orders but<\/p>\n
this sub-rule (1) is not applicable by virtue of sub-rule<\/p>\n
(2) which says that where the contempt consists in<\/p>\n
disobedience of a judicial order of the High Court, the<\/p>\n
Bench concerned may pass appropriate orders and the<\/p>\n
same need not be laid before the Hon’ble Chief Justice.<\/p>\n
Though the present matter is also covered in part under
\n                                      25<\/span><\/p>\n
sub rule (2) of Rule 324 of the said Rules relating to<\/p>\n
disobedience of the order of this court dt.23.6.98 but it<\/p>\n
has   been    titled   as    S.B.Criminal      Contempt,   probably<\/p>\n
because of the paras 7,8 & 10 of this petition. In such a<\/p>\n
situation, Rule 324(2) of the said Rules is not attracted<\/p>\n
and the case has to be taken up under Section 15 of the<\/p>\n
Act for which the reference has been given by the<\/p>\n
Division Bench of this Court in the order dt.13.1.09<\/p>\n
passed in the above referred D.B.Cr.Contempt Petition.<\/p>\n
Provisions of the Rule 324 of the Rules cannot override<\/p>\n
Section 15 of the Act. Since no cognizance has been<\/p>\n
taken in this Criminal Contempt Petition for the last<\/p>\n
about   11    years    and    the     issue,   as   referred   above,<\/p>\n
involved in the present Contempt Petition, has been<\/p>\n
adjudicated upon, this Court cannot resort to sub rule<\/p>\n
(2) of Rule 324 of the said Rules for disobedience of the<\/p>\n
order   of this Court dt.23.6.98,              especially when the<\/p>\n
present Contempt Petition is coupled with the numerous<\/p>\n
allegations    in   the     nature    of   Criminal   Contempt,    as<\/p>\n
discussed above by taking support from the latin maxim<\/p>\n
“Nemo debet bis vexari, si constat curiae quod sit pro<\/p>\n
una et eadem causa”, which means no one must be<\/p>\n
vexed twice, if it appears to the Court that it is for one<\/p>\n
and the same cause.\n<\/p>\n
                                    26<\/span><\/p>\n
20.   Even for the sake of argument, which now remains<\/p>\n
academic, if this Court goes into disobedience of the<\/p>\n
order, being of civil nature for which lengthy arguments<\/p>\n
have been advanced, suffice it to say that even the Civil<\/p>\n
Contempt is also not made out for the reasons stated<\/p>\n
hereinbelow.\n<\/p>\n<\/p>\n
21.   Firstly, the impugned order dt.23.6.98 was passed<\/p>\n
in S.B.Cr.Misc. Petition No.478\/98 in which there were<\/p>\n
only two respondents viz; State of Rajasthan through<\/p>\n
the   Collector,    Udaipur     and      Commissioner,        Municipal<\/p>\n
Council,     Udaipur,   whereas         in   the   present    Contempt<\/p>\n
Petition, in addition to the Collector Shri Pandey, the<\/p>\n
Addl.Collector viz; Sumatilal Bohra, the Addl.S.P. viz;<\/p>\n
Bharat Singh and the Tehsildar Inder Singh Solanki<\/p>\n
have been made as party respondents. As a broad<\/p>\n
proposition in the common course of nature as well as<\/p>\n
of law, contempt proceedings are initiated against those<\/p>\n
to    whom    the   notice    of    Court     has     been    given   for<\/p>\n
compliance.     When     the       notices     were    not    given    to<\/p>\n
respondents      No.2   to    4,    impleading        them    as    party<\/p>\n
respondents and as contemners, is per se illegal. The<\/p>\n
Commissioner,       Municipal       Council,       Udaipur,   who     was<\/p>\n
party respondent in the Misc. Petition No.478\/98 in
\n                                    27<\/span><\/p>\n
which the impugned order has been passed on 23.6.98,<\/p>\n
has not been even made party to the Contempt petition<\/p>\n
and    the    State     of   Rajasthan   has     been   made        party<\/p>\n
through the Collector, who is respondent No.1 in the<\/p>\n
Contempt Petition. For the sake of argument, if it is<\/p>\n
believed that the respondent No.2 Shri Bohra being<\/p>\n
Addl.Collector was also responsible in the absence of<\/p>\n
the Collector, then it is to be seen as to how far, his<\/p>\n
responsibility persists vis a vis the Addl.S.P. and the<\/p>\n
Tehsildar.\n<\/p>\n<\/p>\n
22.   Learned counsel for the petitioner has tried to<\/p>\n
establish the case of Civil Contempt on the basis of<\/p>\n
service      of     notice    of   Contempt      Petition      to     the<\/p>\n
respondents by filing various affidavits, news items and<\/p>\n
other documents including the log book of the driver,<\/p>\n
who took the material in the mid night of 23.6.98 till<\/p>\n
next day morning at 3 AM on 24.6.98. It is an admitted<\/p>\n
position     that     the    impugned    order    was       passed    on<\/p>\n
23.6.98 by the Vacation Judge of this Court at his<\/p>\n
residence at 4.30 PM and the same was communicated<\/p>\n
by    fax    to   the   respondent      No.1   i.e.   the    Collector,<\/p>\n
Udaipur as per the allegation in the petition at 17:51<\/p>\n
Hrs i.e. at 5.51 PM and to the UIT             at 17:55 Hrs i.e. at
\n                                  28<\/span><\/p>\n
5.55 PM and also delivered to the employee of the<\/p>\n
Collector at his residence, where respondent No.2 i.e.<\/p>\n
Addl.Collector was present and he refused to receive<\/p>\n
the same. In this regard, if the reply is looked into, it is<\/p>\n
clearly stated that at 4 PM, the Collector left Udaipur<\/p>\n
and as per the log book filed by him long back in 2005<\/p>\n
which is Annex.R.1\/1, he visited Tehsil Kherwara at 4<\/p>\n
PM and returned at 9 PM. This log book is signed by the<\/p>\n
Collector   himself   and   is        an   official   record,   the<\/p>\n
reference of which has been given in the affidavit also<\/p>\n
filed by respondent No.1 in his counter to the rejoinder<\/p>\n
in which he has also stated that the allegations are<\/p>\n
absolutely false. The log book filed by the petitioner on<\/p>\n
23.6.98 is also       not supported by          affidavit of any<\/p>\n
driver or authorized user. In this log book, the entry<\/p>\n
about the time of the most of the dates is blank and<\/p>\n
five trips of Sukhadia Circle to Municipality have been<\/p>\n
shown from 2 PM to 3 AM, the date has been erased<\/p>\n
and the driver is Madu but there is no affidavit of this<\/p>\n
driver. Even the Column of vehicle No. is also blank.<\/p>\n
Likewise in another log book of 23.6.98, time has been<\/p>\n
erased and the signatory of the log book is some one<\/p>\n
else, who has not filed his affidavit. So far as the other<\/p>\n
affidavits are concerned, they have not been filed with
\n                                    29<\/span><\/p>\n
the Contempt Petition but are of 9.7.98. First affidavit<\/p>\n
is of Hanuman Prasad Sharma in which he stated that<\/p>\n
on 23.6.98 at 6 PM, he went at the residence of the<\/p>\n
Collector,    where      Addl.Collector   Shri    Bohra      met   and<\/p>\n
thereafter a copy was given to him as well as to the PA<\/p>\n
to Collector, who made entry in the register and gave it<\/p>\n
to the Collector in his presence. If this affidavit is<\/p>\n
looked into in the light of para 15 of the Contempt<\/p>\n
Petition, it is nowhere stated that PA delivered the copy<\/p>\n
to the Collector. The affidavit thus falsifies the version<\/p>\n
about the presence of the Collector in the light of the<\/p>\n
petition itself and there is every reason to believe that<\/p>\n
the Collector was not at the Headquarter on 23.6.98<\/p>\n
from 4 PM to 9 PM and as per his reply on getting the<\/p>\n
information, he ordered to stop the dismantling work.<\/p>\n
Rest of the affidavits are also of no consequence filed<\/p>\n
by the petitioner in the light of the above discussion<\/p>\n
because Gani Mohd., Vyanktesh, Suryakant and Kailash<\/p>\n
are the employees of the petitioner Firm and interested<\/p>\n
parties.     Likewise,     Ramprakash,         Ashok     Kumar     and<\/p>\n
Bhimanand       are    the      `thelewalas’    (hawkers),     whose<\/p>\n
reference     has     neither    been   given    in    the   Contempt<\/p>\n
Petition with regard to their presence nor they have<\/p>\n
produced any licence of hawking.\n<\/p>\n
                                       30<\/span><\/p>\n
23.     So far as the news items are concerned, firstly<\/p>\n
they are not admissible in the evidence as the affidavits<\/p>\n
of concerned correspondent have not been filed and<\/p>\n
secondly in these news items, it is nowhere stated that<\/p>\n
the Collector was present at his residence or at the<\/p>\n
site.    Learned       counsel     has     much     stressed     on   the<\/p>\n
affidavit      of    one   Rooplal,    another     hawker       and   also<\/p>\n
moved an application for initiating proceedings u\/s.340<\/p>\n
CrPC     but    it    is   not   specifically     stated   as    to   who<\/p>\n
presented       this affidavit and for the sake of argument,<\/p>\n
if it is believed that this Rooplal s\/o Nathu is not of<\/p>\n
Karakali, Salumbar, then there are two affidavits of this<\/p>\n
person from both sides. This Court cannot suo moto<\/p>\n
proceed u\/s.340 CrPC on the application of the party,<\/p>\n
especially when there             is a counter affidavit of one<\/p>\n
Laxman Singh, who says that Parthia alias Rooplal is<\/p>\n
working at his Stall. Further, it is doubtful as to how<\/p>\n
these hawkers can prove the identity of administrative<\/p>\n
or police authorities.\n<\/p>\n<\/p>\n
24.     When the Collector was not present on the spot<\/p>\n
and rest of the respondents were not party to the Misc.<\/p>\n
Petition, wherein impugned order dt.23.6.98 has been<\/p>\n
passed and if it is assumed for the moment that the
\n                                     31<\/span><\/p>\n
order reached at the residence of the Collector by 6 PM,<\/p>\n
which the Collector says to be                 7 PM, even then, it<\/p>\n
cannot be termed as wilful disobedience of the order of<\/p>\n
this Court because the petitioner was asked to remove<\/p>\n
the   equipments        from    the      Sukhadia   Circle      by    order<\/p>\n
dt.15.6.98 of ADM(City) and latest by 22.6.98. He filed<\/p>\n
revision against that, which was dismissed on 22.6.98<\/p>\n
and on 23.6.98, there was no stay order upto 6 PM<\/p>\n
before the respondents and they carried out the orders<\/p>\n
of the Court upto 7 PM. It is revealed from the affidavit<\/p>\n
of    Sh.V.K.Singhvi,          Executive       Engineer,        UIT    and<\/p>\n
Yashwant Singh Choudhary in which it is clearly stated<\/p>\n
that the work was stopped on getting the order of this<\/p>\n
Court at the behest of directions of SHO, PS, Amba<\/p>\n
Mata and Tehsildar Shri Inder Singh Solanki. Further,<\/p>\n
from Annex.15, it is also revealed that the amusement<\/p>\n
instruments were seized on 23.6.98 at 12.30 PM itself<\/p>\n
in the presence of Tehsildar Shri Inder Singh Solanki<\/p>\n
and Dhan Singh in compliance of the orders of the<\/p>\n
Court    of    ADM,     Udaipur     dt.15.6.98      and    of    ADJ    dt.<\/p>\n
22.6.98 and the work was stopped at 7 PM. This is an<\/p>\n
official document signed by the SHO, PS, Amba Mata<\/p>\n
alongwith the Tehsildar and one Yashwant Singh, who<\/p>\n
has     also    filed    his      affidavit.     When      amusement
\n                                         32<\/span><\/p>\n
equipments were seized at 12.30 PM, the details of<\/p>\n
which have been given in 6 pages being a document of<\/p>\n
the   police    station,        there    is        no    allegation             that   this<\/p>\n
document       has   been        forged           and,       therefore,         there    is<\/p>\n
every reason to believe that the work was stopped at 7<\/p>\n
PM and there was absolutely no defiance of the order of<\/p>\n
this Court dt.23.6.98. Rather, the respondents acted in<\/p>\n
a   bonafide     manner         because           there       is    no     substantial<\/p>\n
allegation     against      the      respondents                that       they        were<\/p>\n
having malice against the petitioner, except one FIR<\/p>\n
lodged against the respondents No.1 and 2 on 4.6.98.<\/p>\n
The proceedings u\/s.285 of the Municipalities Act about<\/p>\n
which the argument has been made, were initiated by<\/p>\n
Dr.Ashok       Singhvi     in    May,         1996,          when         the    present<\/p>\n
respondent       No.1      Shri      Pandey              was        not    posted        at<\/p>\n
Udaipur. Annex.R.1\/2 to R.1\/14, which are of the year<\/p>\n
1993, also speaks that how the petitioner has tried to<\/p>\n
obtain   the     licence        by   getting            it    extended           through<\/p>\n
various corrigendum but without going into the legality<\/p>\n
and propriety of these documents, suffice it to say that<\/p>\n
Annex.R.1\/15         dt.22.7.93              is     a        letter       written        by<\/p>\n
Superintendent       of     Police,          Udaipur           to     Administrator,<\/p>\n
Municipal      Board,      Udaipur            itself         speaks        about        the<\/p>\n
ingredients of nuisance defined u\/s.133 CrPC in which it
\n                                       33<\/span><\/p>\n
is stated that the amusement park installed at Sukhadia<\/p>\n
Circle is located at the National Highway No.8, where<\/p>\n
large    number       of    people     assemble,         thereby     causing<\/p>\n
hurdle to the traffic and also danger to the life of ladies<\/p>\n
and small children and on being extended, there may be<\/p>\n
public agitation and in the last, it was requested to shift<\/p>\n
it at some other place. It is also argued that on account<\/p>\n
of this hindrance, there was one complaint about death<\/p>\n
of a child. Thus, the initiation of proceeding u\/s.133<\/p>\n
CrPC     and     u\/s.285       of    the    Municipalities         Act     were<\/p>\n
undertaken against the petitioner prior to the posting of<\/p>\n
respondent       No.1       Shri    Pandey       as   Collector,    Udaipur,<\/p>\n
which       clearly   counters        the        allegation   of     malice.<\/p>\n
Accordingly, the petitioner has not been able to make<\/p>\n
out a case of Civil Contempt as well.\n<\/p>\n<\/p>\n
25.     The    contention      of    the    learned      counsel     for    the<\/p>\n
petitioner that he was not given adequate opportunity<\/p>\n
to avail appropriate remedy after passing of the order,<\/p>\n
is also devoid of force, because the order was passed<\/p>\n
by    the     ADM     for     removal       of     the   installations       of<\/p>\n
amusement park on 15.6.98 and he was given 7 days’<\/p>\n
time. He filed revision against that order and that too,<\/p>\n
was dismissed on stipulated seventh day i.e. on 22.6.98
\n                                       34<\/span><\/p>\n
and on the next day, the proceedings were initiated in<\/p>\n
the morning and by 12.30 PM, amusement equipments<\/p>\n
were seized and the equipments lying on the road were<\/p>\n
shifted for the sake of argument little later, which<\/p>\n
cannot be termed as disobedience of the order of this<\/p>\n
Court.     Seven       days’   time    cannot        be    termed     as   an<\/p>\n
unreasonable time, but is surely a breathing time as<\/p>\n
observed in the order of this Court on 10.11.95 in Writ<\/p>\n
Petition No.3184\/95. If the revision was dismissed on<\/p>\n
22.6.98, even then the petitioner was not prohibited<\/p>\n
from making an application for extension of time for a<\/p>\n
day or two to seek remedy by way of extra ordinary<\/p>\n
jurisdiction u\/s.482 CrPC, but he preferred to send<\/p>\n
telegram, Annex.A on day earlier casting aspersion on<\/p>\n
the outcome of judicial order. This Court feels not to<\/p>\n
make     out     any     inference         on   such      conduct    but   to<\/p>\n
adjudicate the issue in hand, being paramount function<\/p>\n
of a Judge.\n<\/p>\n<\/p>\n
26.   Lastly,      the         respondents             have         tendered<\/p>\n
unconditional apology, which is not even required in the<\/p>\n
light of the facts of the present case, as they have<\/p>\n
acted with no malice           & performed their duty and in the<\/p>\n
interest    of    the     public      at    large.     Public   Cause      is
\n                                      35<\/span><\/p>\n
paramount in a democratic set up than permitting the<\/p>\n
profit gaining business like amusement park on a public<\/p>\n
road and that too, on national highway.\n<\/p>\n<\/p>\n
27.     The power of contempt is to be exercised with<\/p>\n
great caution and reluctance. The judges’ duty is to<\/p>\n
protect public justice, as they have no concern in a<\/p>\n
particular case in which the order has been passed<\/p>\n
because the punishment is not meted out as a balm to<\/p>\n
hurt mind. It has been repeatedly held by the Courts<\/p>\n
long    ago    that   a   welfare     State     is   protected      by   its<\/p>\n
independent judiciary. If, on technicalities, the Court<\/p>\n
exercises its power of contempt, it may adversely affect<\/p>\n
its dignity, decency and decorum. While exercising such<\/p>\n
power,     the    Court        should     have       regard    to     both<\/p>\n
considerations viz; the public good on the one hand and<\/p>\n
the dignity of the Court on the other. In the light of the<\/p>\n
facts    and   circumstances         of   the   case,    as   discussed<\/p>\n
above, the present litigation which is going on for more<\/p>\n
than a decade, is the outcome of technicalities of a<\/p>\n
party on the one hand for getting individual benefit and<\/p>\n
the maintenance of public order on the other. If in<\/p>\n
maintaining the public order, the orders are strictly<\/p>\n
implemented       and     if   the   executive       order    hurts      the
\n                                      36<\/span><\/p>\n
individual gainer, it cannot be termed as an act of Civil<\/p>\n
or    Criminal      Contempt.        The       manner       in    which      the<\/p>\n
petitioner has tried to approach this Court by invoking<\/p>\n
extra ordinary jurisdiction of this Court under Section<\/p>\n
482       CrPC,   when    he    failed    to    get   the    relief   in     the<\/p>\n
revision,     shows      that   he   was       more     conscious      about<\/p>\n
contempt, rather than to get redressal of his grievance<\/p>\n
in a legitimate manner.\n<\/p>\n<\/p>\n
28.       Consequently,    the    present       Contempt          Petition    is<\/p>\n
neither       “Civil”    nor    “Criminal”        and       the    same       is<\/p>\n
dismissed. The notices issued to the respondents No.1<\/p>\n
to    4    viz;   (1)   Shrimat      Pandey,      Collector,        Udaipur;<\/p>\n
(2) Sumati Lal Bohra, Addl.Collector (City), Udaipur;<\/p>\n
(3) Bharat Singh, Addl.S.P. Udaipur; and                          (4) Inder<\/p>\n
Singh Solanki, Tehsildar, Girva, Distt.Udaipur, stand<\/p>\n
discharged.\n<\/p>\n<\/p>\n
                                          (DEO NARAYAN THANVI), J.\n<\/p>\n
RANKAWAT JK, PS\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur G B Jain & Sons vs Shri Shrimat Pandya & Ors on 9 March, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,19],"tags":[],"class_list":["post-136692","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nG B Jain & Sons vs Shri Shrimat Pandya & Ors on 9 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/g-b-jain-sons-vs-shri-shrimat-pandya-ors-on-9-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"G B Jain & Sons vs Shri Shrimat Pandya & Ors on 9 March, 2009 - 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