Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 144 (JHR)

Vishal Prasad v. State of Jharkhand

2012-01-25

APARESH KUMAR SINGH, PRAKASH TATIA

body2012
Judgment One Interlocutory Application No. 971 of 2011 was submitted in W.P. (PIL) No.1872 of 2010. However, on 25.3.2011 in I.A. No. 971 of 2011, an order was passed to convert the I.A. No. 971 of 2011 into contempt petition and therefore, this contempt petition has come before us. 2. The petitioner complained that in spite of the order passed by this Court in W.P.(PIL) No. 5926 of 2009 (Suresh Prasad Vrs. The State of Jharkhand and others) directing the authorities to remove the encroachment made over or on the property of Zila Parishad, Dhanbad, encroachments have not been removed. 3. After registering this contempt petition, this Court observed that there appears to be a tacit consent of the authorities in such illegal activities of continuing encroachment over the public property and therefore, on 20.4.2011, the Registrar General was directed to lodge F.I.R. with the Vigilance Department of the State to investigate the irregularities and illegalities in such matters. That order was clarified by the order dated 12.5.2011 and on 13.07.2011 and the State was directed to submit the status report with respect to the action taken against the unauthorized occupants of the public property situated in the area of Zila Parishad in the State of Jharkhand. 4. Learned Advocate General, who was requested to assist this Court in this Contempt petition, submitted that encroachment over the properties of Zila Parishad in the State of Jharkhand also are covered by a direction issued by the Hon'ble Supreme Court in the case of Jagpal Singh and others Vrs. State of Punjab passed in Civil Appeal No. 1132 of 2011 arising out of S.L.P.(C) No. 3109 of 2011 wherein Hon'ble Supreme Court gave direction to all the State Governments in the Country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Proamboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. Therefore, according to learned Advocate General, the State may be submitting the factual position whether the State has submitted compliance report in the Hon'ble Supreme Court in above case. 5. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. Therefore, according to learned Advocate General, the State may be submitting the factual position whether the State has submitted compliance report in the Hon'ble Supreme Court in above case. 5. Be that as it may, in the High Court of Jharkhand approximately 1592 Civil contempt cases are pending and this figure is as on today i.e. on 25.01.2012. We make it clear that this is the position even when the contempt petitions, if are taken for consideration by the Court wherein reply has been filed and no much time is consumed of the Court in passing appropriate orders and normally the party, in whose favour there is an order, gets relief but even after deciding a large number of contempt matters by the High Court, the pendency of total cases is of 1592, which is certainly not a small issue but it is a big issue. We may state that these matters take not much time for decision provided State takes a stand in time before the matter reaches to the Court for consideration. These matters can be disposed of though within a period of 15 days only by the State at its own level by granting relief to the persons in whose favour judgment has attained finality but we expect that the State Government shall not only concentrate over the matter of deciding these contempt matters but shall also develop mechanism for implementation of the High Court orders and for that purpose, task may be given to one high authority of the Government so appropriate direction may be issued to the concerned Department either to show why the order has not been implemented or to direct its implementation within 15 days from the receipt of the notice of contempt itself and for that, without waiting for the next date of contempt petition, the compliance report may be submitted and the matter may be mentioned to the Court with request that relief has been granted to the contempt petitioner so that those matters may be taken by the Court without waiting for its turn and may be disposed of. 6. 6. At this juncture, we may draw attention of all the Head of Departments and Secretaries of the various Departments of the State of Jharkhand towards the recent judgment of the Hon'ble Supreme Court delivered in the case of Maninderjit Singh Bitta Vrs. Union of India and others reported in (2012) 1 SCC 273 and particularly to paragraphs-20, 22, 23, 24, 26, 27, 28 and 29 which are as follows: 20. In exercise of its contempt jurisdiction, the courts are primarily concerned with enquiring whether the contemnor is guilty of intentional and wilful violation of the orders of the court, even to constitute a civil contempt. Every party to lis before the court, and even otherwise, is expected to obey the orders of the court in its true spirit and substance. Every person is required to respect and obey the orders of the court with due dignity for the institution. The Government Departments are no exception to it. The departments or instrumentalities of the State must act expeditiously as per orders of the court and if such orders postulate any schedule, then it must be adhered to. Whenever there are obstructions or difficulties in compliance with the orders of the court, least that is expected of the Government Department or its functionaries is to approach the court for extension of time or clarifications, if called for. But, where the party neither obeys the orders of the court nor approaches the court making appropriate prayers for extension of time or variation of order, the only possible inference in law is that such party disobeys the orders of the court. In other words, it is intentionally not carrying out the orders of the court. Flagrant violation of the court’s orders would reflect the attitude of the concerned party to undermine the authority of the courts, its dignity and the administration of justice. 22. Another very important aspect even of the Civil Contempt is, ‘what is the attribution of the contemnor?’ There may be cases of disobedience where the respondent commits acts and deeds leading to actual disobedience of the orders of the court. Such contemnor may flout the orders of the court openly, intentionally and with no respect for the rule of law. While in some other cases of civil contempt, disobedience is the consequence or inference of a dormant or passive behaviour on the part of the contemnor. Such contemnor may flout the orders of the court openly, intentionally and with no respect for the rule of law. While in some other cases of civil contempt, disobedience is the consequence or inference of a dormant or passive behaviour on the part of the contemnor. Such would be the cases where the contemnor does not take steps and just remains unmoved by the directions of the court. As such, even in cases where no positive/active role is directly attributable to a person, still, his passive and dormant attitude of inaction may result in violation of the orders of the court and may render him liable for an action of contempt. 23. It is not the offence of contempt which gets altered by a passive/negative or an active/positive behaviour of a contemnor but at best, it can be a relevant consideration for imposition of punishment, wherever the contemnor is found guilty of contempt of court. 24. With reference to Government officers, this Court in the case of E.T. Sunup v. C.A.N.S.S. Employees Assn. took the view that it has become a tendency with the Government officers to somehow or the other circumvent the orders of the Court by taking recourse to one justification or the other even if exfacie they are unsustainable. The tendency of undermining the court orders cannot be countenanced. 26. It is also of some relevancy to note that disobedience of court orders by positive or active contribution or nonobedience by a passive and dormant conduct leads to the same result. Disobedience of orders of the court strikes at the very root of rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. If the Judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs (refer T.N. Godavarman Thirumulpad’s case SCC p.6 para 5). The proceedings before the highest court of the land in a public interest litigation, attain even more significance. These are the cases which come up for hearing before the court on a grievance raised by the public at large or public spirited persons. The proceedings before the highest court of the land in a public interest litigation, attain even more significance. These are the cases which come up for hearing before the court on a grievance raised by the public at large or public spirited persons. The State itself places matters before the Court for determination which would fall, statutorily or otherwise, in the domain of the executive authority. 27. It is where the State and its instrumentalities have failed to discharge its statutory functions or have acted adversely to the larger public interest that the courts are called upon to interfere in exercise of their extraordinary jurisdiction, to ensure maintenance of the rule of law. These are the cases which have impact in rem or on larger section of the society and not in personam simplicitor. Courts are called upon to exercise jurisdiction with twin objects in mind. Firstly, to punish the persons who have disobeyed or not carried out orders of the court i.e. for their past conduct. Secondly, to pass such orders, including imprisonment and use the contempt jurisdiction as a tool for compliance of its orders in future. This principle has been applied in the United States and Australia as well. 28. For execution of the orders of the court even committal for an indefinite term has been accepted under Australian law [Australasian Meat Industry Employees Union v. Mudginberri Station Pty. Ltd.] and American law, though this is no longer permissible under English Law. While referring to detention of a person for a long period to ensure execution of the orders in Re Nevitt, In re, F. at p. 461, Sanborn , J. observed that the person subjected to such a term “carries the keys of his prison in his own pocket.” 29. Lethargy, ignorance, official delays and absence of motivation can hardly be offered as any defence in an action for contempt. Inordinate delay in complying with the orders of the courts has also received judicial criticism. It is inappropriate for the parties concerned to keep the execution of the court’s orders in abeyance for an inordinate period. Inaction or even dormant behaviour by the officers in highest echelons in the hierarchy of the Government in complying with the directions/orders of this Court certainly amounts to disobedience. It is inappropriate for the parties concerned to keep the execution of the court’s orders in abeyance for an inordinate period. Inaction or even dormant behaviour by the officers in highest echelons in the hierarchy of the Government in complying with the directions/orders of this Court certainly amounts to disobedience. Inordinate delay of years in complying with the orders of the court or in complying with the directed stipulations within the prescribed time, has been viewed by this Court seriously and held to be the contempt of court, as it undermines the dignity of the court. Reference in this regard can be made to Maniyeri Madhavan v. Inspector of Police and Anil Ratan Sarkar and Ors. v. Hirak Ghosh. Even a lackadaisical attitude, which itself may not be deliberate or wilful, have not been held to be a sufficient ground of defence in a contempt proceeding. Obviously, the purpose is to ensure compliance of the orders of the court at the earliest and within stipulated period. 7. In view of the Article 144 of the Constitution of India, it is mandate of the Constitution of India that all parties, Civil and Judicial, shall act in accordance with the pronouncement of the Supreme Court. Therefore, now it is constitutional obligation of this Court to pass this order with the object to see that the order of the Hon'ble Supreme Court, referred above, be implemented in the State of Jharkhand in its true spirit. Meaning thereby the litigants should not be made to suffer because of the passive act or conduct of the Government or the authorities which has been declared to be an act of contempt of Court by the Hon'ble Supreme Court in the above referred judgment. 8. We are issuing this direction to the State Government to make the State Government aware that the State Government should not take the contempt matters lightly so as to treat this contempt petition at par with the other petitions only because of the reason that officers have not been punished in past only in view of the fact that orders have been complied with though belatedly. 9. 9. Copy of this order be sent to the Chief Secretary, Government of Jharkhand for effective implementation of this order in the light of the direction issued by the Hon'ble Supreme Court declaring that passive act of the Government or conduct of the officers in given circumstances may lead to holding him guilty for committing contempt of Court. 10. Learned Advocate General submitted that the State Government has already prepared a plan to implement the litigation policy wherein there is already a provision to deal with the problem of non filing of the reply in various matters on behalf of the State Government and it also includes taking care of implementation of the order passed by the Courts so as to avoid contempt litigation and for that purpose some posts have already been sanctioned. It is submitted that certain administrative sanctions are yet required which will be obtained in short time. If this is so, then we appreciate the steps taken by the State but it is necessary to keep them working and therefore, this order will be a guideline to such officers. 11. Copy of this order be given to the nodal officers and other persons who have been posted under litigation policy of the State so that they themselves may look into the matter and take lesson from the order of Hon'ble Supreme Court, referred above. The copy be provided by the office of the State Government through Office of learned Advocate General to these officers. 12. The State Government may immediately see that whenever a notice of contempt is received at Secretariat level, normally Secretary of the concerned Department or Head of Department, who is a party in the contempt petition relating to a particular Department, be intimating the Office of learned Advocate General by the concerned Department or Head of Departments either by the Secretary or by the Head of Departments of concerned Department or his nominated officer for this purpose without any delay and a monthly statement be sent to the Office of Advocate General with respect to pending contempt cases of said Department so that Office of Advocate General who is willing to assist the Court in getting rid of those contempt matters may take care in these contempt matters. 13. 13. Copy of this order be given by the Government to all the bodies of the State Government like Municipal Corporation, Zila Parishad, Electricity Board, Transport Authorities and the Universities etc. and other authorities who are State within the definition of Article 12 of the Constitution of India so that those Departments may also immediately evolve the process for addressing these contempt petitions. 14. Copy of this order be also given to the learned counsel appearing for both sides and considering the factual position that the report will be submitted to the Hon'ble Supreme Court in pursuance of its direction referred above, we post this matter on 14.2.2012.