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2017 DIGILAW 748 (JK)

Balbir Singh v. Dewan Chand, Executive Engg.

2017-08-25

B.S.WALIA, TASHI RABSTAN

body2017
JUDGMENT : TASHI RABSTAN, J. 1. Initiation of contempt proceedings against respondents herein for dishonoring and disobeying interim order dated 10.07.2014 passed in OWP(PIL) No. 19/2014, titled Balbir Singh v. State & Ors., is called-in-question in the instant petition. It would be profitable to reproduce the Order dated 10th July, 2014, hereunder: "1. Notice in the main as well as CMA Mrs. Seema Shekhar, learned AAG, accepts notice on behalf of respondent No. 3 and on behalf of Respondent Nos. 2, 7 and 8 vice Mr. H.A. Siddiqui, learned AAG. List on 12.08.2014. Meanwhile, further construction in the areas of water body or abetting the water body shall remain stayed. We also direct that the sale of land concerning the bed of the river and the land recorded in the revenue records as 'Khad' shall also remain stayed." Petitioner avers in the application on hand that order was known to the respondents yet they did not honour the same. He sent notices through his counsel, which was duly received by them. Despite receipt of notice, respondent have not stopped the construction. This is apparent from the copy of photographs taken on the spot which shows that JCB Machine and Tippers are working in the Nallah, viz. water body, and construction is being raised in the water body by raising the abutment. It is further contended that an officer, howsoever high, he may be is under an obligation to obey the directions passed by the Court in its letter and spirit. 2. This contempt petition is against interim order passed in WPPIL No. 19/2014, which came to be disposed of vide order dated 12.02.2016. It would be profitable to reproduce operative part of order dated 12.02.2016 hereunder:- "25. Since the petitioners before filing the present public interest litigations have not approached the competent authority under the Jammu and Kashmir Water Resources (Regulation and Management) Act, 2010, we are of the opinion that no writ of mandamus can be issued against the respondents at this stage. However, the petitioners are at liberty to approach before the competent authority for agitating their grievance and, in such an event, competent authority to expeditiously consider and decide the matter accordingly. However, the petitioners are at liberty to approach before the competent authority for agitating their grievance and, in such an event, competent authority to expeditiously consider and decide the matter accordingly. Since, the State respondents have failed to disclose about the framing of State Water Policy and Plan/Scheme in terms of the Act, we direct them to frame such policy/scheme for safety, prevention and restoration of wetlands/marshland/flood channels as well as lands recorded as 'Khads' in the revenue record as also for preserving the sanctity of river Tawi from being polluted by the waster and toxic water emanating from authorized/unauthorized colonies alongside river Tawi by including stringent and effective measures, positively within a period of two months from today, strictly keeping in view the discussion/observations made hereinabove. While framing such Water Policy and Plan/Scheme, the State respondents would also taken into consideration and strictly follow the observations made by the Apex Court in case, titled as, Jagpal Singh v. State of Punjab, AIR 2011 SC 1123 , as well as by this Court in case titled as, Dharm Chand & Ors. v. State of J&K, 2015 (3) JKJ 39 [HC]. Till the time such policy/scheme is framed by the State Government, order dated 10th July, 2014 and status-quo with respect to such lands/khads shall remain in force. 26. For the above stated reasons, both the PILs as well as contempt petitions are accordingly disposed of along with connected MPs. 3. Statement of facts/compliance report has been filed by the respondents contending therein that there is no question of disobeying order dated 10.07.2014. However, it is contended that abutment of both sides of the river has damaged due to floods. Answering respondents laid crates on both sides of the nallaha. It is contended that the house of petitioner is the obstruction in the smooth flow of water in the nallaha. The petitioner has constructed his house in the middle of the nallaha and has narrowed the breadth of the nallaha, which is required to be removed by demolition of the house, which is obstructing the natural flow of nallahas during heavy rain falls. It is further contended that order dated 10.07.2014 is against carrying out of construction in the water body but they have simply provided temporary protection to the eroded land on both sides of the nallaha. It is further contended that order dated 10.07.2014 is against carrying out of construction in the water body but they have simply provided temporary protection to the eroded land on both sides of the nallaha. The answering respondents, it is maintained, have not constructed such thing, which would obstruct the smooth flow of water, but they have simply provided temporary protection to the eroded land which has been damaged and that in this way they have not raised any permanent structure there but simply provided the temporary protection. It is also stated that respondents are duty bound to lay creates on the bank of the rivers and nallahas to protect the irrigation land as well as houses. Respondents also state that petitioner has himself constructed his house very much in the middle of nallaha, which can be seen from the photographs attached with the affidavit. 4. We have heard learned counsel for parties and considered the matter. 5. First and foremost point that is to be taken note of is that petitioner, though not being party in main petition, has filed the instant petition and he also alleges violation and disobedience of order passed in aforementioned PIL, by Shri Vijay Kumar Duggal and others. However, while making such allegations against Shri Vijay Kumar Duggal and others, petitioner has not made them party respondent in the application on hand, which is one of the important facets of the matter which we took note of while going through the breadth and length of the instant petition inasmuch as the said persons of Shri V.K. Duggal and others cannot be condemned unheard. 6. Apart from the above, instant motion is for initiation of contempt proceedings against respondents for non-implementation and disobedience of order dated 10th July, 2014, passed in WPPIL No. 19/2014. This Court disposed of aforesaid petition vide order dated 12.02.2016 with certain directions. 7. Respondents have filed compliance report, which is duly supported by an affidavit. They have given therein the whole picture of subject-matter of writ petition, including steps taken by them towards implementation of order passed in aforesaid PIL. 8. This Court disposed of aforesaid petition vide order dated 12.02.2016 with certain directions. 7. Respondents have filed compliance report, which is duly supported by an affidavit. They have given therein the whole picture of subject-matter of writ petition, including steps taken by them towards implementation of order passed in aforesaid PIL. 8. Glance of compliance report also divulge that it is present petitioner,, who has constructed his house in the middle of the nallaha and has narrowed the breadth of the nallaha, which is required to be removed by demolition of his house, inasmuch as petitioner's house has been obstructing the natural flow of nallaha during heavy rain falls. In such circumstances, the petition on hand has not been filed by petitioner for the purpose, what he has beseeched for, but, in view of the averments made in compliance report, filed by respondents, it abundantly shows and suggests opposite side of the story that has been curtained by petitioner in the petition on hand. Besides, respondents are implementing the order that has been passed by this Court in aforesaid PIL, in letter and spirit. Apart from this, the report submitted by Commissioners, appointed by this Court vide order dated 10th June 2015, also pointed towards dispute between the parties, which cannot be adjudicated upon in the present contempt proceedings inasmuch as the submissions and counter-submissions of patties would take this Court to the conclusion that it would be appropriate for petitioner to avail appropriate remedy by challenging the action(s) of respondents, of which he claims to have been aggrieved. It is pertinent to mention here that there are cases in which even if a technical breach is proved and the respondent had mens rea, the court will nonetheless dismiss the application. For contempt proceedings to be instituted, there must be something more involved than a mere technicality. In the words of Arlidge Eady and Smith "the process of contempt should not be invoked in aid of a civil remedy where some other method of achieving the desired result is available" (Adam Phones v. Goldschmidt (1999) 4 All ER 486). 9. This Court, in contempt proceedings, cannot go beyond proceedings available under contempt and open another branch of proceedings, which is beyond the scope of contempt proceedings. 9. This Court, in contempt proceedings, cannot go beyond proceedings available under contempt and open another branch of proceedings, which is beyond the scope of contempt proceedings. Reliance in this regard is made to Lalith Mathur v. L. Maheshwara Rao (2000) 10 Supreme Court Cases 285, wherein the Supreme Court has held that in view of consideration accorded by respondents, further directions in contempt proceedings will be without jurisdiction. It would be advantageous to reproduce relevant portion of the said judgment hereunder: "3. The above will show that the High Court has directed the State Government to absorb the respondent against a suitable post either in a government department or in any public sector undertaking. This order, in our opinion, is wholly without jurisdiction and could not have been made in proceedings under the Contempt of Courts Act or under Article 215 of the Constitution. 4. The High Court in the writ petition had issued a direction for the consideration of the respondent's representation by the State Government. This direction was carried out by the State Government which had considered and thereafter rejected the representation on merits. Instead of challenging that order in a fresh writ petition under Article 226, the respondent took recourse to contempt proceedings which did not lie as the order had already been complied with by the State Government which had considered the representation and rejected it on merits." 10. Further to point out here that the Court in Contempt jurisdiction has to consider only whether the direction or judgment of the Court passed in regular proceeding, has been complied with or not. It cannot go beyond the directions contained in the order, disobedience whereof is complained. In the present case, whatever stated and projected by petitioner takes this Court beyond the proceedings, which were subject-matter of the order, of which disobedience is alleged and pass fresh directions, in that, same would amount to exercising jurisdiction to consider the matter on merits in contempt proceedings, which is not otherwise permissible. My these views are fortified by judgement rendered in J.S. Parihar v. Ganpat Duggar & Ors., AIR 1997 SC 113 . My these views are fortified by judgement rendered in J.S. Parihar v. Ganpat Duggar & Ors., AIR 1997 SC 113 . The Supreme Court hold in the said case that seniority list may or may not be in conformity with the directions, the aggrieved party can avail of opportunity of judicial review and order of Single Judge of High Court in contempt proceedings ordering for re-drawal of list, amounts to exercising jurisdiction to consider the matter on merits in the contempt proceedings, which is not permissible in contempt proceedings. Our said view is again buttressed by the decision rendered by the Supreme Court in Babu Ram Gupta v. Sudhir Bhasin, AIR 1979 SC 1528 . This Court, in contempt proceedings, cannot go beyond proceedings available under contempt and open another branch of proceedings, which is beyond the scope of contempt proceedings. 11. For the foregoing reasons, we are not satisfied that there has been any willful and intentional disobedience of the order(s) of this Court. The contempt petition lacks in merit and is, accordingly, dismissed along with connected MP(s). 12. However, it is made clear that petitioner is at liberty to file a representation before respondents in case he has any gravamen vis-à-vis aforesaid person and respondents shall do well to take appropriate action as warranted under law governing the field. While doing so, respondents shall give opportunity of reasonable hearing to the person(s) as well against whom petitioner makes any representation. Notice issued, is discharged.