Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

1994 (10) TMI 324

..... s For Respondents: V.M. Tarkunde, A.K. Goel, R.B. Misra, Kamini Jaiswal And B.Y. Kulkarni, Advs. ORDER 1. These petitions raise certain important issues as to the amenability of the State and of its Ministers to be proceeded against in contempt for failure of obedience to the judicial pronouncements. These proceedings have the echo of the disastrous event that ended in the demolition on the 6th December, 1992 of the disputed structure of 'Ram Janam Bhoomi-Babri Masjid' in Ayodhya. Thousands of innocent lives of citizens were lost, extensive damage to property caused and more than all a damage to the image of this great land as one fostering great traditions of tolerance, faith, brotherhood amongst the various communities inhabiting the land was impaired in the international scene. Though the proceedings for suo motu contempt against the then Chief Minister of the State of Uttar Pradesh and its officers in relation to the happening of the 6th December, 1992 were initiated those are pending and shall be dealt with independently. 2. The subject matter of the present contempt proceedings, however, arises out of certain antecedent events that occurred during the month of July 19 .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ) Judgment of the Allahabad High Court in the cases pending before it will not be violated. We shall take it, and Mr. Jaitley has no objection to our doing so, that the State of Uttar Pradesh remains bound by what has been stated in this paragraph and this shall be obligation of the State of Uttar Pradesh to stand by our order of today which is made after taking into account the stand of the State of Uttar Pradesh and disclosed by the Chief Minister and reiterated in the affidavit of the Home Secretary. It shall, therefore, be taken as a representation to the Court on which we have made this Order. 5. On 15th July, 1992 the High Court of Allahabad in C.M.A. No. 83(0)/92 made and order to the following effect:- Learned Advocate General has prayed for & is allowed 3 days time to file counter Affidavit. 3 Days time is allowed for filling rejoinder to the petitioner the list immediately thereafter (.) k In the meantime the opposite parties are restrained from raising any construction on the land (.) If there is any necessity for doing something on the land for its use, prior permission from the Court would be obtained (.) 6. The grievance in these contempt proceedings is that these .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... odged. learned Counsel says that later on, from time to time, the State and other respondents are called upon to meet a shifting and entirely different set of allegations, said to arise out of certain events that occurred subsequent to the filing of the contempt petitions, particularly in the month of July, 1992. Shri Vehugopal stated that without being understood to be insistent upon a technicality that a further notice on the initiation of contempt is required to be issued on the new set of allegations, his clients' stand is that they be afforded a reasonable opportunity to traverse, in a comprehensive way, and cumulatively all the allegations contained in the affidavits filed from time to time by both the petitioners, as also traverse the material such as photographs etc. relied upon in support of the allegations. 3. We think that this prayer is reasonable and the respondents should have such an opportunity. They shall meet the case as presented in the affidavits filed by the petitioners in the month of July, 1992 in the pending contempt petitions in regard to the allegations of continued violation of the orders of the Courts, said to have occurred during the month of July, .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... been carried out by the State Government and its authorities, there would be no doubt whatsoever that constitute a flagrant violation of the orders of the Court. What was, however, sought to be pleaded was that the area in question, by a long religious tradition in Ayodhya, attracts a large number of pilgrims and particularly in the month of July which coincides with the period of 'Chaturmas' where a large number of Sadhus congregate to celebrate 'Sarvadev Anusthan'. It was urged that there Pilgrim-Sadhus embarked upon the construction of the cement concrete platform and that the number of their was so large that any coercive preventive action would have triggered off an adverse reaction which might have endangered the safety of the disputed 'Ram Janam Bhoomi-Babri Masjid Structure' which was situate in the immediate vicinity and for whose protection the Government stood committed. In view of these conflicting considerations and of the risks involved in the operations Government felt compelled to abstain from any coercive steps to prevent the constructions by the pilgrims. We shall later advert to the merit sand bona fides of this version. Suffice it to say .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... bove the law, but (what is a different thing) that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amendable to the jurisdiction of the ordinary tribunals. In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person. 15. In these formative years of our nation building, it is more important than even to recognise that in a pluralist societ .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ing on the possible purpose of this structure, Sri Prabhat Kumar himself says, 'however, according to the statements of those involved in the construction work it was intended to be the first step towards putting up of the "Singh Dwar" of the proposed "Ram Mandir" as and when the same would be constructed'. 19. In the report dated 18th July, 1992 by the District Magistrate and Senior Superintendent of Police, to the Chief Secretary, as to the nature and extent of construction, while admitting the progress of construction, the District Magistrate says:- On 18.7.1992 at 8.45 to 9.30 AM we met Shri Ashok Singal and Shri Onkar Bhave and requested them to have the work stopped in compliance with order dated 15.7.1992 of the High Court, responsibility for which had been entrusted to us. They informed that at 5 PM on 17.7.1992 decision was taken in the meeting of about 50 saints at the Digamber Akhara that construction will not be stopped. In view of this decision construction could not be stopped and they suggested that talks may be held with members of Temple Renovation Committee. 20. This Court constituted a committee consisting of Sri S. Rai, Registrar Gene .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... report of the Expert Committee headed by Sri S. Rai, Registrar General, was of the month of August, 1992. But the significance of the report as to the nature and extent of work and whether it could be related to the month of July is determined by the fact that on Uttar Pradesh Govt.'s own admission the work had stopped on 26th July, 1992. It is, therefore, permissible to relate the factual state of construction indicated in the Expert Committee's Report to what must be presumed to have been carried out in the month of July, 1992 itself. We have no hesitation in finding that there was massive work undertaken and executed on the land in violation of the Court's orders. 23. The next question is whether these activities were carried on by a congregation of Sadhus at the site and not by the State Govt. and despite Government's efforts. Apart from a glib suggestion that any attempt to prevent the work would have created a violent situation endangering the safety of the 'Ram Janam Bhoomi Babri Masjid structure' itself, nothing is indicated as to what was sought to be done at all to prevent constructional material coming in. There is no mention in any of the affidav .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... effort had been made and evidence of that placed before Court, it might have been possible for the Court to assess the situation in the light of that explanation to find out whether such steps had been taken. In the absence, we are constrained to hold that the Government failed to take steps to prevent the grossest violation of the order of this Court. We record a finding accordingly. 24. The last question is whether the undertaking furnished by the Chief Minister was a personal undertaking or was on behalf of the State of U.P. It was both. 25. There is no immunity for any authority of Government, if a personal element is shown in the act of disobedience of the order of the Court, from the consequence of an order of the Court. Even in England where the maxim 'Crown can do no wrong' has had its influence, a distinction is made between the Crown as such and the Executive. 26. In a recent pronouncement of far reaching impact the House of Lords in 'In re M. v. Home Office' 1994 (1) AC 377, observed (as per Lord Templeman) :- My Lords Parliament makes the law, the executive carry the law into effect and judiciary enforce the law. The expression "the Crown" has .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... was found as a matter of fact that there was no personal element involved in the violation at the instance of the Home Secretary, Mr. Baker. Therefore, Lord Templeman observed:- I am also satisfied that Mr. Baker was throughout acting in his official capacity, on advice which he was entitled to accept and under a mistaken view as to the law. In these circumstances I do not consider that Mr. Baker personally was guilty of contempt. 28. In the leading speech Lord Woolf said :- This was the first time that a minister of the Crown had been found to be in contempt by a court. The finding of contempt was made for not complying with an injunction granted by Garland J. ordering M., who had made a claim for asylum, which was rejected by the Home Office, to be returned to this country. Nolan L.J., at p. 311, considered that the fact that proceedings for contempt are "essentially personal and punitive" meant that it was not open to a court, as a matter of law, to make a finding of contempt against the Home Office or the Home Secretary. While contempt proceedings usually have these characteristics and contempt proceedings against a government department or a minister in an official c .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... wing view of Chakravartti, C.J., in AIR1952Cal919 : I do not say that in fit cases a writ for contempt may not be asked for against a corporation itself, or against a Government. In what form, in such a case, any penal order, if considered necessary, is to be passed & how it is to be enforced are different matters which do not call for decision in this case. In England, there is a specific rule providing for sequestration of the corporate property of the party concerned, where such party is a corporation. I am not aware of any similar rule obtaining in this country, but I do not consider it impossible that in a fit case a fine may be imposed and it may be realised by methods analogous to sequestration which would be a distress warrant directed against the properties of the Government or the Corporation. (emphasis supplied) 30. The State Government is, therefore, liable in contempt. A Minister or Officer of Government is also either in his official capacity or if there is a personal element contributing to contempt, in his personal capacity, liable in contempt. 31. We find that the undertaking given by Sri Kalyan Singh was both in his personal capacity and on behalf of his Gover .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||