Keshwa Nand And Others vs Devesh Kumar & Others

Sandeep Sharma, J

By way of instant Contempt Petition preferred under Sections 11 & 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India, petitioners herein (respondents No.5 to 14 in CWP No.494 of 2018) have prayed for initiation of contempt proceedings against the contemnors- respondents for willful violation and disobedience of directions contained in judgment dated 31.10.2018 passed by Division Bench of this Court in CWP No.494 of 2018, titled: Surinder Singh Chauhan vs. State of H.P. & Others.

In nutshell, case of the petitioners herein, as emerge from the pleadings and documents annexed therewith and canvassed by Mr.B.N. Misra, learned Senior Counsel representing the petitioners, is that since respondents No.1 to 4, who were officials of Irrigation and Public Health Department, have failed to disconnect illegal water connection of respondent No.5 despite there being specific directions contained in the aforesaid judgment passed by Division Bench of this Court, appropriate action under Contempt of Courts Act is required to be taken against respondents No.1 to 4 as well as respondent No.5, who happened to be the illegal beneficiary.

Record reveals that respondent No.5 Surender Singh Chauhan (original petitioner in CWP No.494 of 2018) approached this Court by way of CWP No.494 of 2018 for the redressal of his grievance with regard to sanctioning of drinking water supply connection and its execution in terms of letter dated 7th February, 2018. Petitioner, named hereinabove, also sought restraint order against IPH Department from disconnecting drinking water supply connection granted in his favour, pursuant to sanction letter dated 7th February, 2018.

It emerge from the record that controversy regarding supply of drinking water, as raised by the petitioner, got expanded beyond the claim of the petitioner and as such this Court vide order dated 30th August, 2018 constituted a Committee comprising (i) Sub Divisional Magistrate, Theog, (ii) Executive Engineer, IPH Division Jubbal and (iii) Sub Divisional Officer (IPH), Kotkhai, with a direction to convene a meeting of all the elected public representatives, including Pradhan, Up-Pradhan, Ward Members of the area as well as the officials of the IPH Department for ascertaining as to how best water available in terms of the existing scheme can be distributed equally amongst all the residents of the area/beneficiaries.

Division Bench of this Court also directed the Committee to examine the possibility of augmenting availability of water on short term basis, till such time the Scheme, as envisaged by the Government, is augmented. Court also directed the Committee to ascertain the position with regard to the existing illegal water connections, if any, but, qualified the same by stating that such connections would not be disconnected without the leave of the Court.

Pursuant to aforesaid directions passed by this Court, Committee submitted its report dated 8th October, 2018, which otherwise stands reproduced in para-5 of the judgment, alleged to have been violated. Committee, as referred hereinabove, also made certain suggestions for improvement of water distribution in the area, which have also been reproduced in para-6 of the judgment.

Division Bench, having carefully perused aforesaid report submitted by the Committee, noticed in its judgment that

"It thus emerges out from the report of the Committee that there are two Water Tanks i.e. Upper Bhuila Water Storage Tank and the Lower Bhuila Water Storage Tank. The water supply in both the tanks appears to be sufficient, but the Committee has found fault in the distribution system. In this regard, the measures suggested by the Committee for improvement of water distribution system become relevant."

In the aforesaid background, Division Bench of this Court observed that there is no reason for IPH Department to not give effect to the measures suggested by the Committee, as reproduced in para-6 of the judgment (except measure (i) for the time being) and take all necessary steps to ensure equitable distribution of water to all the residents/beneficiaries in the area and also take steps for augmenting the additional water for that purpose.

In paras-9 and 10 of the judgment, which are heavily relied upon by Mr.B.N. Misra, learned Senior counsel, for establishing that respondents No.1 to 4 and respondent No.5 are contemnors, Division Bench of this Court observed that as far as illegal water connections are concerned, there can be no exception, and directed that all illegal connections be removed/disconnected, forthwith and water supply should be ensured only to such beneficiaries in whose favour a connection has been legally released.

In para-11 of the judgment, Division Bench further observed that every consumer, having legal water connection, should be supplied sufficient water on equitable and proportionate basis so that no resident of the area has any grievance and for that purpose, if need be, legal connection can be shifted from lower Bhuila Water Storage Tank to upper Bhuila Water Storage Tank and vice versa.

Mr.B.N. Misra, learned Senior Counsel appearing for the petitioners herein, contended that it stands duly established from the reply filed by Superintending Engineer, I&PH Circle Rohru, District Shimla, H.P. to the main writ petition that respondent No.5 laid down the pipe line from other point located in the upper Bhuila on his own sweet will without any sanction from such point and as such, respondents, in compliance to judgment dated 31.10.2018, passed by Division Bench, ought to have removed his connection. Mr.Misra further contended that the Departmental action against the officials of IPH Department stands already initiated, which fact itself establishes that no communication was ever issued in favour of the petitioners, who on his own sweet will, without there being any authority, connected the water connection from the tank situated in the upper Bhuila.

Having heard learned counsel appearing for the parties and perused the material available on record, this Court sees no force in the arguments of Mr.B.N. Misra, learned Senior Counsel appearing for the petitioners, because affidavit, if any, filed by Superintending Engineer, I&PH Circle Rohru, District Shimla in CWP No.494/2018 has no relevance at this stage because admittedly Division Bench of this Court has passed final judgment relying upon the report submitted by the Committee constituted by it.

Needless to say that though Division Bench of this Court has categorically held in the aforesaid judgment that all illegal connections would be dis-connected forthwith, but, as has been noticed above, Division Bench has further observed that if need, legal connection can be shifted from lower Bhuila Water Storage Tank to upper Bhuila Water Storage Tank and vice versa. Reply to the contempt petition, having been filed by respondents No.1 to 4, clearly reveals that respondent No.5 (petitioner in the main writ petition) was sanctioned water connection by Assistant Engineer vide his letter dated 7.2.2018. Though such connection was ordered to be connected from upper Bhuila Water Storage Tank, but, it appears that field staff connected the water connection from lower Bhuila Water Storage Tank.

It is quiet apparent from the specific averments contained in para-7 of the affidavit dated 23.2.2019, filed on behalf of respondents No.1 to 4, that though connection of respondent No.5 is legal and has been sanctioned by Assistant Engineer vide his letter dated 07.02.2018, but the same was connected from upper Bhuila Water Storage Tank instead of sanctioned point from lower Bhuila Water Storage Tank, as such, action of respondents cannot be said to be contemptuous, especially in view of the findings returned by Division Bench of this Court in para-11 of the judgment, alleged to have been violated, wherein Division Bench, while recording that every consumer having legal water connection should be supplied sufficient water on equitable and proportionate basis so that no resident of the area has any grievance, reserved liberty to the respondents for shifting the legal connections from lower Bhuila Water Storage Tank to upper Bhuila Water Storage Tank and vice versa.

There is nothing to dispute that respondent No.5 (Petitioner in CWP no.494/2018) was not having legal sanction to connect water from the upper Bhuila Water Storage Tank rather, as per own admission of the Assistant Engineer respondent No.4, respondent No.5 was sanctioned water connection vide letter dated 7.2.2018 from lower Bhuila Water Storage Tank, but same was inadvertently connected from upper Bhuila Water Storage Tank. Division Bench of this Court vide judgment dated 31.10.2018, alleged to have been violated, has itself permitted the Department to shift legal water connection, if any, from one tank to other so that sufficient water on equitable and proportionate basis is supplied to residents of the area.

In the instant proceedings, this Court cannot go beyond the mandate given in the judgment, alleged to have been violated, rather in contempt jurisdiction Court is only required to see whether judgment passed by Court has been complied with in its letter and spirit and it is not permissible for Court in its contempt jurisdiction to go beyond the mandate of the judgment alleged to have been violated.

Their lordships of the Hon'ble Supreme Court in Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and Others v. M. George Ravishekaran and Others, (2014) 3 SCC 373 have held as under:-

"19. The power vested in the High Courts as well as this Court to punish for contempt is a special and rare power available both under the Constitution as well as the Contempt of Courts Act, 1971. It is a drastic power which, if misdirected, could even curb the liberty of the individual charged with commission of contempt. The very nature of the power casts a sacred duty in the Courts to exercise the same with the greatest of care and caution. This is also necessary as, more often than not, adjudication of a contempt plea involves a process of self determination of the sweep, meaning and effect of the order in respect of which disobedience is alleged. Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor the plea of equities can be considered. Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above. The above principles would appear to be the cumulative outcome of the precedents cited at the bar, namely, Jhareswar Prasad Paul and Another vs. Tarak Nath Ganguly and Others[3], V.M.Manohar Prasad vs. N. Ratnam Raju and Another[4], Bihar Finance Service House Construction Cooperative Society Ltd. vs. Gautam Goswami and Others[5] and Union of India and Others vs. Subedar Devassy PV[6].

Applying the above settled principles to the case before us, it is clear that the direction of the High Court for creation of supernumerary posts of Marine Assistant Radio Operator cannot be countenanced. Not only the Courts must act with utmost restraint before compelling the executive to create additional posts, the impugned direction virtually amounts to supplementing the directions contained in the order of the High Court dated 02.8.2006. The alterative direction i.e. to grant parity of pay could very well have been occasioned by the stand taken by the Corporation with regard to the necessity of keeping in existence the cadre itself in view of the operational needs of the Corporation. If despite the specific stand taken by the Corporation in this regard the High Court was of the view that the respondents should be absorbed as Marine Assistant Radio Operator nothing prevented the High Court from issuing a specific direction to create supernumerary posts of Marine Assistant Radio Operator. The same was not done. If that be so, the direction to create supernumerary posts at the stage of exercise of the contempt jurisdiction has to be understood to be an addition to the initial order passed in the Writ Petition. The argument that such a direction is implicit in the order dated 02.08.2006 is self defeating. Neither, is such a course of action open to balance the equities, i.e. not to foreclose the promotional avenues of the petitioners, as vehemently urged by Shri Rao. The issue is one of jurisdiction and not of justification. Whether the direction issued would be justified by way of review or in exercise of any other jurisdiction is an aspect that does not concern us in the present case. Of relevance is the fact that an alternative direction had been issued by the High Court by its order dated 02.08.2006 and the appellants, as officers of the Corporation, have complied with the same. They cannot be, therefore, understood to have acted in willful disobedience of the said order of the Court. All that was required in terms of the second direction having been complied with by the appellants, we are of the view that the order dated 02.08.2006 passed in W.P. No. 21518 of 2000 stands duly implemented. Consequently, we set aside the Order dated 19.01.2012 passed in Contempt Petition No. 161 of 2010, as well as the impugned order dated 11.07.2012 passed in Contempt Appeal No.2 of 2012 and allow the present appeal."

Their lordships of the Hon'ble Supreme Court in Bihar State Government Secondary School, Teachers Association vs. Ashok Kumar Sinha and Others, (2014) 7 SCC 416, have held as under:

"24. At the outset, we may observe that we are conscious of the limits within which we can undertake the scrutiny of the steps taken by the respondents, in these Contempt proceedings. The Court is supposed to adopt cautionary approach which would mean that if there is a substantial compliance of the directions given in the judgment, this Court is not supposed to go into the nitty gritty of the various measures taken by the Respondents. It is also correct that only if there is willful and contumacious disobedience of the orders, that the Court would take cognizance. Even when there are two equally consistent possibilities open to the Court, case of contempt is not made out. At the same time, it is permissible for the Court to examine as to whether the steps taken to purportedly comply with the directions of the judgment are in furtherance of its compliance or they tend to defeat the very purpose for which the directions were issued. We can certainly go into the issue as to whether the Government took certain steps in order to implement the directions of this Court and thereafter withdrew those measures and whether it amounts to non-implementation. Limited inquiry from the aforesaid perspective, into the provisions of 2014 Rules can also be undertaken to find out as to whether those provisions amount to nullifying the effect of the very merger of BSES with BES. As all these aspects have a direct co-relation with the issue as to whether the directions are implemented or not. We are, thus, of the opinion that this Court can indulge in this limited scrutiny as to whether provisions made in 2014 Rules frustrate the effect of the judgment and attempt is to achieve those results which were the arguments raised by the respondents at the time of hearing of C.A. No. 8226-8227 of 2012 but rejected by this Court. To put it otherwise, we can certainly examine as to whether 2014 Rules are made to implement the judgment or these Rules in effect nullify the result of merger of the two cadres."

Consequently, in view of the discussion made as well as law referred hereinabove, this Court finds no merit in the present Contempt Petition and the same is dismissed without any order as to costs.

All the interim orders are vacated. All the miscellaneous applications are disposed of.