Patna High Court
Sarup Jaykar Motilal C.R. Das Institute ... vs Union Of India (Uoi) And Ors. on 3 April, 1996
Equivalent citations: 1996(2)BLJR1246
JUDGMENT
Shashank Kumar Singh, JJ.
1. This is an application under Article 215 of the Constitution of India read with Sections 11 and 12 of the Contempt of Courts Act, 1971 (compendiously the Act) filed by Sapru Jaykar Motilal C.R. Das Institute of Legal Aid Studies and Research through its vice Chairman and others, against the Union of India, Sarvashri A.K. Basak, Chief Secretary, Government of Bihar, N.K Agrawal, Commissioner-cum-Secretary, Rural Development Department, Govt. of Bihar, T.N. Sheshan, Chief Election Commissioner, and K.K. Saha, State Election Commissioner (Government of Bihar) and the relief sought is for initiating proceeding for civil contempt as against those opposite parties as they have willfully disobeyed the order passed in the judgment of this Court dated 22.10.195 in C.W.J.C. No. 488 of 199S inasmuch as they did not hold the Panchayat Election in this State of Bihar by 31.1.1996.
2. The factual matrix of the case is that in this State Panchayat Elections were not held for the last more that 18 years. In absence of legality the elected representative of the people in accordance with the provisions of Bihar Panchayat Raj Act, 1993 (for short "the Panchayat Act") a lot of difficulties were faced by the people and also by the Government But nevertheless the elections could not be held even after the Panchayat Act was brought on the Statute-Book. One has to guess with open-mouthed-astonishment as to what prevented the holding of the Panchayat factions-even after the enforcement of the Panchayat Act in view of the Constitution 73rd Amendment Act, 1992 inserting Part IX adding Article 243 making provision for three-tier Panchayat Election in every State.
3. Our judgment dated 20.10.1995 (in CW.J.C No. 488 of 1995) was rendered in view of the supplementary counter affidavit (in the form of a positive undertaking) filed on 15.10.1995 on behalf of the Chief Secretary, Government of Bihar. The Secretary, Rural Development, Government of Bihar and Director, Panchayat Raj, Government of Bihar, the respondents 2, 3 and 4 in CW.J.C. No. 488 of 1995. It was stated in paragraph 5 of the said supplementary counter-affidavit that Bihar Panchayat Election Rules were published on 27.9.1995 and it has cleared the deck for putting the Panchayat Election process in motion. Under paragraph 6 it was stated that delineation of territorial constituencies for the three-tier Panchayat (i) the Grain Panchayat (ii) the Panchayat Samiti (Book Level) and (iii) the Zila Parishad levels and giving effect to the reservation of seats, etc. would start on 16.10.1995 will be completed on 29.11.1995. Under paras 5, 7 and 8 it was stated that Election Rolls would be completed between 22.11.95 to 18.12.95. The polling stations would be selected and finalised with the approval of the State Election Commission by 18th December, 1995. Under para 10 it was averred that under Section 136A of the Bihar Panchayat Raj Act, 1993 the dates for Panchayat polls is to be notified by His Excellency the Governor. Under Para 11 it was averred in an unequivocal term that Panchayat elections would be held between 17.1.1996 to 23.1.1996, the counting of votes and declaration of results would be done positively by 31.1.1996. In spite of all these positive avernments and undertakings Panchayat election could not be held by 31.1.1996.
4. Another application was filed (at flag 'Y') on behalf of the Bihar State Election Commission to extend the time for holding the Panchayat Elections and it was contended by Mr. Shyama Pd. Mukerjee, learned senior counsel that on account of certain difficulties including non-availability of ballot boxes and ballot papers the election could not be held. We did not find sufficient reason to extend the time hence rejected that application.
5. Thereafter the present application was filed to initiate contempt proceedings. Notices were issued for shows cause and the show cause has been I filed by the opposite parties, whereas Mr. T.N. Sheshan, the Chief Election Commissioner, has willfully disobeyed our judgment and order dated 22.10.1995 was taken up first. We have heard Mr. Basudev Prasad, learned Counsel for Sri I Sheshan, but as Mr. T.N. Sheshan was not a party in the C.W.J.C. No. 488 of 1995 and he could not get the information about our earlier order, hence no wilful disobedience was proved and consequently, feeling satisfied with the show cause of Mr. Sheshan, we discharged the notice.
6. Other opposite parties have taken a common defence in the show cause | about the non-availability of the Ballot Boxes and that Ballot Papers could not be printed in time. The Central Election Commission was approached but it did not accede to the request to supply Ballot Boxes. Ballot Papers were printed only to the extent of symbols. In the meantime a Division Bench of this Court in Krishna Kumar Mishra v. The State of Bihar and Ors. 1996 (1) All PLR.388, decided on 19.3.1996, the validity of certain provisions of Bihar Panchayat Raj Act, 1993 were held unconstitutional.
7. Shorn of details the Division Bench in Krishna Kumar Mishra (supra) has held Sub-section (1) of Section 13; Sub-section 7(1) of Section 15; and Sub-section (1) of Section 36, Sub-section (a) of Section 38; Sub-section 2(a) of Section 55 as unconstitutional. Similarly it was also held that the limit of reservation need not exceed fifty per cent. It was further held that Schedule 'i' to the Panchayat Raj Act does not contain any verification as to which backward caste is politically depressed, hence it cannot be acted, upon. Further it was directed that such Backward caste (s) as are dominating political field are to be carved out from the definition of Backward Class, It was the main plank of the opposite parties in the show cause that to implement the judgment of the Division Bench in Krishna Kumar Mishra's case (supra) it would take more time, hence it is not possible to hold Panchayat election within few months. Shri Shyama Pd. Mukherjee the learned senior counsel, appearing for the State Election Commissioner, was emphatic that keeping in view the non availability of Ballot Boxes and the time taken for the implementation of the Decision of the Division Bench in Krishna Kumar Mishra"s case (supra) the Panchayat Election would not be possible before November, 1996. Even though S.L.P. was sought to be filed against the Division Beach Decision before the Apex Court but it was subjudice.
8. Shri Ram Janam Ojha, the learned senior Counsel, on behalf of the applicant strongly contended that there could be no other illustration of deliberate and wilful disobedience of the judgment, orders and directions of this Court (dated 20.10.1995) than in the instant case. The time for holding election was granted till 31.1.1996 only after positive and unequivocal under taking was given, on behalf of the opposite parties Nos. 2, 3 and 4 in the form of Supplementary counter affidavit filed on 15.10.1995 and after positive assurance was given by Shri Rameshwar Pd., the Advocate-General and Shri Ganga Pd. Roy, the Additional Advocate-General consequently, Court may hold the opposite parties guilty of Civil Contempt as defined under Section 2(b) of the Act and tine opposite parties be punished according to law.
9. Shri Shyama Pd. Mukerjee, senior Advocate appeared for State Election Commission, Shri Ganga Pd. Roy, the third Addl. Advocate General appeared for the rest of the opposite parties. It was contended that in the circumstances of the case there may appear disobedience of the judgment and order of this Court committed by the opposite parties 2 to 5 and 7 but it was not wilful. Unless it is wilful, disobedience itself is no contempt Inspite of best efforts the Ballot papers could not be made available. A request was sent to the Central Election Commission to spare Ballot Boxes for holding the Panchayat election in the State but that request was turned down. Thereafter requests were made to some other States, including the State of U.P. but they also declined the same. In the State itself arrangements were sought to be made for having requisite number of Ballot Boxes but the same could not fructify. In getting Ballot papers containing symbols only, printed without names of candidates to a considerable extent the opposite parties succeeded. In the meanwhile another Division Bench, in K.K. Mishra v. The State of Bihar and Ors. decided on 19.3.1996 reported in 1996 (1) of Patna Law Reporter 388, held certain provision of the Bihar Panchayat Raj Act, 1993 (as unconstitutional (as stated above). Recurvation of the constituency became imperative. Schedule "I" attached to the Act containing the names of the castes of the Backward Class was also struck down. In these circumstances it was not possible to hold the Panchayat elections. Even before expiry of the 31.1.1996 the date fixed by the court for holding the election. An application (at flag 'Y') was moved by the State Election Commissioner and it was pressed by Shri Shyama Pd. Mukerjee, with all forensic qualities at his command for extending the time of election but we declined to interfere. In these facts situation the opposite parties have to face unsurmountable difficulties in holding the election. The circumstances indicated above were beyond the control of the opposite parties. Consequently the judgment, order and direction of the Division Bench to hold the election by 31.1.1996 could not be complied with. In any way it was not wilful. The show cause notices deserve to be discharged as no wilful disobedience.
10. As regards the opposite parties 2 to 5 and 7 are concerned supplementary counter-affidavit in the form of an undertaking was filed on behalf of opposite parties the Chief Secretary opposite parties No. 2, the Secretary Rural Development Department, opposite parties No. 3 and Director Panchayat Raj opposite party No. 5 20.10.1995 stating that the Election Rules were passed on 27.9.95 and that territorial delineation of constituency would be completed within a short period and other formalities would be completed by 29.11.1995. Electoral roll would be completed by 22.11.95 and 18.12.1995. The polling stations would be selected and finalised and election will be held on 17.1.1996 to 23.1.1996. The entire process would be completed by 31.1.1996. All these were a solemn undertaking given by the opposite parties for holding the election positively by 31.1.1996.
11. The civil contempt has been defined under Section 2(b) of the Act which is as follows:
2(b). "Civil Contempt" means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of undertaking given to a court.
But the legislature was conscious in providing that the wilful breach of an undertaking given to a court would constitute a civil contempt. The word "undertaking" in common parlance means to take upon oneself solemnly or expressly, to put oneself under obligation, to perform. In other words, to accept the responsibility for the care of. In the instant case the contents of the supplementary counter-affidavit with details arid they did not admit any exception including non-availability of the Ballot Boxes or printing of the Ballot papers or delineation of the constituency, etc. The opposite parties must have perceived the difficulties in getting Ballot Boxes and printing of Ballot papers before filing supplementary counter affidavit. In Oswald's Contempt of Court (1993 Edition) page 101, it has been stated that wilful disobedience to a judgment or order requiring a person to do an Act other than the payment to do an Act other than the payment of money or to abstain from doing anything is contempt of Court punishable by attachment or committal. The supplementary counter-affidavit filed and the same having been accepted by us and we decided the petition on 20.10.1996 (C.W.J.C. No. 488 or 95) and directed the opposite parties to hold the election by 31.1.1996. The subsequent explanation for not holding the election could not exonerate the opposite parties from the charge of civil contempt. In these circumstances in our opinion it was wilful and flagrant disregard of the assurance or undertaking given by the opposite parties by filing a supplementary affidavit and the same undertaking having been accepted there could be no deviation from the undertaking so given We have no opinion but to hold that the opposite parties have committed civil contempt. See Balaram Singh v. Bhikhamchand Jain . As regards the subsequent decision of D.B. in K.K. Mishra v. The State of Bihar, was concerned, this order was passed on 19.3.1996 much subsequent to 31.1.1996 when the date for holding the election was given by the opposite parties in their supplementary counter affidavit. The subsequent Division Bench Decision was not rendered prior to 31.1.1996. In case the opposite parties wanted sincerely in view of their undertaking given, they could have held the election per their own estimate by 31.1.1996 but obviously they have deliberately failed to do so. It was for them to have conceived the subsequent difficulties including the non-availability of the Ballot Boxes or the printing of the Ballot Papers prior to the filing of the supplementary counter affidavit. Once the positive assurance and undertaking was given in the supplementary counter-affidavit and the same was accepted by the Court and the writ was decided on merit their must be no exception to the same. In Dilip Kumar Mathur v. Union of India and Ors. JT 1995 (8) SC 27. The Apex Court directed that the reasonable time be given to the various industries for removal of the deficiencies in their effluent treatment plants shall not be beyond March 21, 1993 and that all those industries which did not remove the deficiencies within the said date and did not obtain the consent of P.C.B. by March 31, 1993 were to close down the violation of the orders, Court held that grant of consent on 21.4.1995 by the F.C.B. was in contravention of the order of the Apex Court. An application was filed in the form of the legal representative indicating the pollution caused in the river and it was treated as writ petition and the order was passed from time to lime. Mohan Meakin Brewerie is said to be one of the industries polluting the river. The consent was granted however on 21.4.1995 by the P.C.B. was in contravention of the order of the Apex Court. In these circumstances it was held that the opposite parties including the Chairmen and the member Secretary of the P.C.B are quality of violating the orders of the Apex Court. But as they have tendered unconditional apology the same was accepted with the warning that the writ petition of the same shall be viewed seriously. The facts of the present case are similar to that of Dilip Kumar Mmthur's case (supra). The opposite parties have obviously willfully disobeyed the judgment, order and directions of this Court and committed breach of undertaking given by them in not holding the Panchayat election in the State by 31.1.1996, the opposite parties accordingly in our opinion are guilty of contempt of Court.
12. The opposite parties have given unconditional apology, in these circumstances, we accept the same with the warning that in case the wilful disobedience was repeated again the same would be viewed seriously. In view of the premises aforesaid, in our opinion, the opposite parties are guilty of having committed contempt of Court but as they have tendered unconditional apology we accept the same and exonerate them from the charge of contempt.
13. Before parting with the case we shall be failing in our duty if we do not keep on the record the sincere and valuable service rendered by Shri Ram Janam Ojha in prosecuting the present proceedings and also the C.W.J.C. No. 488 of 1995. We are quite alive to the suggestion of Shri Shyama Pd. Mukerjee the learned senior counsel appearing for the State Election Commissioner Shri K.K. Saha opposite party No. 7 that the Panchayat Election may not be held before November, 1996. But in our opinion that is not practicable and that would be withholding the Panchayat elections without any sufficient cause.
14. In these circumstances, as we have accepted unconditional apology, the show cause issued is discharged and we direct mat the Panchayat election in this State be held within six weeks from the date of publication of the results of the Parliament. With this observation the present M.J.C. application No. 455 of 1996 succeeds and the same is allowed in part. There shall be no order as to costs.