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2009 DIGILAW 249 (GAU)

A. J. Tayeng v. Anshu Prakash

2009-04-09

BROJENDRA PRASAD KATAKEY

body2009
ORDER B.P. Katakey, J. 1. The Petitioner has filed this application under Section 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India praying for initiation of a contempt proceeding against the Respondent and to punish him adequately under the said Act, alleging that the order dated 10.2.2008 passed in W.P.(C) No. 465 (AP) of 2008 has been wilfully violated by the Respondent in so far the direction contained in the said order to the effect that "the writ Petitioner may not be disturbed until expiry of his tenure as prescribed". 2. I have heard Mr. T. Michi, the learned Counsel for the Petitioner and the learned Advocate General, assisted by Ms. G. Deka, learned State Counsel, appearing on behalf of the Respondent. 3. Mr. Michi, the learned Counsel for the Petitioner has submitted that though vide order dated 10.12.2008 this Court while dismissing the W.P.(C) No. 465 (AP) of 2008 has directed that the writ Petitioner may not be disturbed until expiry of his tenure as prescribed under Section 138of the Arunachal Pradesh Panchayati Raj Act, 1997 (in short, 1997 Act), the Respondent who is the Commissioner and Secretary (PR), Govt. of Arunachal Pradesh, by passing the order dated 09.02.2009, whereby and whereunder all concerned have been intimated that the tenure of the Chairman/Member of the State Finance Commission is upto 20.05.2008 and accordingly the Petitioner has completed his tenure, has wilfully and deliberately violated the aforesaid direction contained in the order dated 10.12.2008, as under Section 138 of the 1997 Act, the tenure of appointment of the Petitioner as member of the Finance Commission is 5 (five) years, which will expire on 21.09.2005, keeping in view the order of reconstitution of the State Finance Commission with the Petitioner as the lone member, dated 22.09.2005. The learned Counsel, therefore, submits that the Respondent may adequately be punished after drawing the contempt proceeding against him. 4. The learned Counsel, therefore, submits that the Respondent may adequately be punished after drawing the contempt proceeding against him. 4. In the show-cause reply submitted by the Respondent on receipt of the notice issued vide order dated 11.02.2009, the Respondent has contended that the order dated 10.12.2008 has never been wilfully of deliberately violated and there being no tenure of the State Finance Commission provided in Section 138 of the 1997 Act and the tenure of the Petitioner as member of such Commission having been over on 20.05.2008 on expiry of the period upto which the extension for submission of the report has been granted, the Respondent has not violated the court's order dated 10.12.2008 passed in the aforesaid writ petition, by passing the order dated 09.02.2009. The learned Advocate General, referring to the averments made in the show cause reply and also to the order dated 10.12.2008 passed in the aforesaid writ petition, has submitted that what directed by the order dated 10.12.2008 was not to disturb the Petitioner for the period for which he has been appointed and the period of extension for the purpose of submission of the report by the Commission having not been extended after 31.03.2008, the Respondent by passing the order dated 09.02.2009 has not violated the order dated 10.12.2008 passed in the aforesaid writ petition. 5. The Petitioner has filed W.P.(C) No. 465 (AP) of 2008 claiming that his tenure of appointment as the member of the State Finance Commission dated 22.09.2005 is 5 (five) years i.e. upto 22.09.2010, so the order of the authority dated 26.11.2008 withdrawing the Govt. vehicle provided to him until completion of the 5 (five) years tenure as Chairman of the said Finance Commission is illegal. The said writ petition was taken up for consideration on 10.12.2008, on which date though the writ petition has been dismissed there being no merit, the court has passed an order that the writ Petitioner may not be disturbed until expiry of his tenure as prescribed in Section 138 (sic) The order dated 10.12.21 (sic) reproduced below: 10.12.2008 Heard Mr. T. Michi, learned c(sic)r the Petitioner and Mr. N. Lowang, learned Sr. Addl. Govt. Adv. for the Respondent. From a close perusal of the entire matter, this Court finds that this petition does not carry any merit and deserve consideration. Petition accordingly stands dismissed. T. Michi, learned c(sic)r the Petitioner and Mr. N. Lowang, learned Sr. Addl. Govt. Adv. for the Respondent. From a close perusal of the entire matter, this Court finds that this petition does not carry any merit and deserve consideration. Petition accordingly stands dismissed. However, in consideration of the provisions of Section 138 of the Arunachal Pradesh Panchayati Raj Act, 1997, it is made clear that the writ Petitioner may not be disturbed until expiry of his tenure as prescribed. 6. It appears from the materials made available on record that the Respondent on 09.02.2009 has passed an order intimating all concerned that the tenure of the Chairman/Members of the State Finance Commission was upto 20.05.2008 and hence the Petitioner has completed his tenure and will be paid his dues as admissible upto that date. According to the Petitioner, the said action of the Respondent amounts to civil contempt within the meaning of Section 2(b) of the Contempt of Courts Act, 1971, as the Respondent has wilfully disobeyed or violated the direction contained in the aforesaid order dated 10.12.2008. 7. It appears from the order dated 10.12.2008 that the writ petition filed by the Petitioner claiming that his tenure as member of the State Finance Commission is upto 21.09.2010 and therefore, the order of the authority in withdrawing the facilities is illegal, has been dismissed having no merit. While dismissing the writ petition by the aforesaid order, however, the court has directed that the Petitioner may not be disturbed until completion of his tenure as provided in Section 138 of the 1997 Act. According to the Respondent Section 138 of the said Act does not fix any tenure for the Chairman/Members of the State Finance Commission. While dismissing the writ petition by the aforesaid order, however, the court has directed that the Petitioner may not be disturbed until completion of his tenure as provided in Section 138 of the 1997 Act. According to the Respondent Section 138 of the said Act does not fix any tenure for the Chairman/Members of the State Finance Commission. Section 138 of the said Act requires the Government to constitute State Finance Commission at the expiry of every 5th year, after first constitution which is to be made within 1 (one) year from the date of commencement of the said act, moreover, Sub-rule (3) of Rule 3 of Arunachal Pradesh Panchayati Raj (Constitution of Finance Commission) Rules, 2003, framed under the 1997 Act requires the Finance Commission to submit its recommendation to the Governor within 6 (six) months of its constitution unless the Governor extends the period for that purpose and the Government has in fact extended the time upto 31.03.2008 for submission of the report by the Petitioner being the member of the State Finance Commission, therefore, the term of the Petitioner came to an end on 31.03.2008. 8. To constitute 'civil contempt' within the meaning of Section 2(b) of the Contempt of Courts Act, 1971, the disobedience to any judgment, decree, direction, order, writ or other process of the court has to be wilful or deliberate. The proceeding under the provisions of the Contempt of Courts Act is, a quasi judicial proceeding and as such the standard of proof required is that of a criminal proceeding and it must be established beyond reasonable doubt that the contempt of Court has been committed by the Respondent. An unintentional, accidental or involuntary act would not constitute a civil contempt within the meaning of the said Act. It is also a settled position of law that if two interpretations of the order which is ambiguous, are possible, a contempt proceeding would not be maintainable. 9. In the instant case, as noticed above, what was directed by the order dated 10.12.2008 was not to disturb the Petitioner in completing his tenure as provided in Section 138 of the 1997 Act. 9. In the instant case, as noticed above, what was directed by the order dated 10.12.2008 was not to disturb the Petitioner in completing his tenure as provided in Section 138 of the 1997 Act. By the order dated 09.02.2009 what the Respondent did is that he by the said order informed all concerned that the Petitioner had completed the period on 20.05.2008, there being no extension of period for submission of report and there being no tenure prescribed in Section 138 of the 1997 Act, in the perception of the Respondent. The Respondent being under impression that by the order dated 10.12.2008 what has been directed is to allow the Petitioner to continue only if the law permits the same, no wilful or deliberate violation of the order dated 10.12.2008 has been made by the Respondent by passing the order dated 09.02.2009, when the said order dated 10.12.2008 can have more than one possible meaning. The said action on the part of the Respondent, in view of the aforesaid discussion, does not constitute 'civil contempt' within the meaning of the Contempt of Courts Act, 1971. 10. Hence the contempt petition is dismissed.