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Judgment
Wangdi, ACJ
The institution of the present contempt proceeding was necessitated in view of an application filed by the Petitioner and moved on 14.11.2011, bringing to the notice of this Court violation of the order dated 11.11.2011, passed in Writ Petition (C) No. 46 of 2011, whereby it had been directed upon the respondent No. 1 and others as follows:
The submission is fair and just. Considering the facts and circumstances of the case and in view of the fact that the matter is pending before the Appellate Authority, let the impugned order dated 11.10.2011, Annexure P-12, be stayed until the Appellate Authority disposes of the appeal filed by the petitioner. The Appellate Authority may take up the matter expeditiously and while doing so also consider the facts and circumstances set out in the writ petition treating it as a part of the appeal.
Upon notices to show cause issued to the respondents as to why proceedings under the Contempt of Court should not be instituted against them, they have submitted their show causes supported by affidavits duly sworn by them. On 22.11.2011, the day when the matter came up for hearing before this Court, Mr. K.T. Bhutia, learned Senior Advocate appearing on behalf of the petitioner, sought permission to file additional documents in the form of photographs and a pen drive, which as per him would substantiate the allegation that the impugned actions of the respondents were taken subsequent to their being communicated with the order of this Court dated 11.11.2011. To this only respondent No. 1 has chosen to file a reply denying all material allegations. I have perused the show cause reply filed by the respondent No. 1 and I find, inter alia, the following averments:
3.b.(i) On 11/11/2011 at about 8.00 am, the file with draft orders concerning the execution of the order passed on 11/10/2011 along with other files was sent to the Camp office (residence) of the petitioner at Namchi along with the draft orders and the petitioner accordingly signed the order for execution of the order dated 11/10/2011. The order of execution was handed over to the Sub-Divisional Magistrate for execution. The process of execution started at about 10.00 am and the entire process was completed by 11:00 am as per the compliance report submitted by the Sub-Divisional Magistrate.
(ii) On 11/11/2011 an information was received at 11:35 am by the ld. Government Advocate in the High Court, Gangtok that the Hon''ble High Court of Sikkim had issued stay order on the execution of the order No. 2618/DCS dated 11/10/2011 issued under Sub-Section (1) of the Section 5 of the Sikkim Public Premises (Eviction of Unauthorized Occupants & Rent Recovery) Act, 1980 by the Court of the undersigned to Mr. Nuk Tshering Bhutia for eviction of the premises situated at Melli-Jorethang Road, Melli, South Sikkim.
(iii) Thereafter, this answering respondent requested the ld. Government Advocate to send a copy of the order but he said that the written order has not been issued yet by the Hon''ble High Court. The information was acknowledged by the undersigned who was in an official function organized to celebrate "Right to Education" at Government Girl''s School, Namchi and taking the information as a statement made under oath the undersigned tried contacting the SDM, Namchi. Despite of the several calls made by the undersigned the message could not be conveyed due to bad network.
(iv) When the undersigned came out of the junction to send him a W/T message, finally at 11.41 am a clear conversation could be established with him. The SDM, Namchi was informed about the same and was directed to stay the execution "as it is". The undersigned was informed by the SDM, Namchi that the sealing process of the premises has already been completed with due procedure and he was on his way to the Police Station, Melli to compete (sic) other legal formalities. He was directed to maintain status quo as per the stay order informed to be issued by the Hon''ble High Court and maintain everything "as it is at the time of 11.41 am" when he was conveyed about it. He was further directed to inform all concerned not to disturb the "stay status" and submit a compliance report to the undersigned accordingly.
(v) When the undersigned was told to contact to the ld. Additional Advocate General at 11.07 pm on 11/11/2011 over the phone, and he was contacted at 12.09 pm he was also informed that the status quo at the time of 11.41 am of 11.11.2011 has already been maintained. The undersigned requested to the ld. Additional Advocate General too to send a copy of the stay order but he informed that the written order could be faxed sometime in the afternoon. The same was recorded by the undersigned after coming back to the office.
(vi) On 12/11/2011 a phone call was received at around 9.10 am at the basic phone of the residence of the undersigned from Mr. Nuk Tshering Bhutia who had informed that his wife and another lady had been locked inside the premises at Melli-Jorethang Road, Melli which was sealed on 11/11/2011 by the Sub-Divisional Magistrate, Namchi. When asked why he did not inform about it to the undersigned on the date of sealing itself he told that he was out and he could not get information about the same. He was further asked the reason not to inform about the same even in the night, he did not answer. Instead he started using threatening language to the undersigned and warned of severe consequences. He answered in negative whether he had lodged any written complaint about the same at Melli Police Station. When he was asked to give written information to the undersigned or to the Melli Police Station about the same so that prompt action, was taken, he refused and suggested the undersigned to read news papers for the information.
(vii) The attitude of the respondent created doubt as it was not considerable (sic) that a husband won''t look for the whereabouts of his wife for whole night but could not be ignored as it was related to the life of two ladies and the Officer in Charge, Melli Police Station was asked telephonically to visit the spot and confirm the same. When the information was received by the Officer in Charge, Melli that there was possibility of two ladies staying inside the building, there was an urgency to take action to take people whosoever is there out of the premises as the undersigned was under constitutional obligation to do so.
(viii) At the same time, the undersigned was under obligation to follow the stay order issued by the Hon''ble High Court. The matter being related to two lives, there was an urgency to take prompt action. An order was passed and the Sub Divisional Magistrate, Namchi was directed to rush to the spot immediately to take appropriate action with help he may require from anybody and in any manner to take out people left locked in the premises. At the same time he was directed to maintain "status quo" as per the stay order of the Hon''ble high court. He was allowed to break the seal if required to take people out, but after evacuation he was ordered to maintain the status of the premises "as it was at 11.41 am, 11/11/2011". Due care was ordered to be taken while executing the order and medical check-up of the evacuated people was ordered to be done. All the legal procedures were ordered to be taken while executing the order and the execution was done under videography. A compliance report was ordered to be submitted accordingly after completion.
(ix) At the same time, the matter being serious in nature the Sub-Divisional Magistrate, Namchi was directed to submit a clarification with the details of the procedure taken while sealing the building as to how any person was left staying in it. The Officer in Charge, Melli Police Station was also directed to investigate into the matter and take appropriate action under suitable statutory Laws in case it was found that a willful attempt had been done by anybody to cause obstruction in execution of a Lawful order.
(Underlining mine)
The above averments are made in verbatim in the show causes in respect of all the respondents, and, therefore, need not individually be reproduced. As is quite evident from the averments reproduced above, an extraordinary and unusual course of action was taken by the respondents, in as much as, when the period prescribed by the respondent No. 1, the Prescribed Authority in his order dated 11.10.2011 got over in the midnight of 10.11.2011, on the very next day i.e., 11.11.2011, and that too early morning at 8.00 a.m., the steps to execute the order got initiated. It is relevant to note that the petitioner moved the High Court on 11.11.2011 at 11.00 a.m. after having served a copy of the Writ Petition in the office of the learned Advocate General at 9.45 a.m. The tearing hurry in which the entire exercise has been undertaken by the respondents, so much so even the wife and maid servant of the petitioner were locked in the questioned building, clearly and without any doubt indicates that it was done to circumvent the order and over-reach the impending action of this Court.
Even assuming that the action was bonafide, as is being made out, what transpired on the next day i.e., 12.11.2011, completely obliterates the plea, as I find in paragraph (viii) of the reply that direction was issued by the respondent No. 1 to respondent No. 2 to unseal the premises and release the wife of the petitioner and her maid servant and then reseal it to maintain status quo of the premises "as it was at 11.41 a.m. 11.11.2011". This Court cannot but view this as a persistence of the defiance on the part of the respondent No. 1 to insist upon the illegal action taken on 11.11.2011.
On 30.11.2011, this Court was informed that the appeal filed by the petitioner against the order of the Prescribed Authority has since been disposed of by the Appellate Authority u/s 9(1) of Sikkim Public Premises (Eviction of Unauthorized Occupants & Rent Recovery) Act, 1980. As the Court was of the view that the proceedings before the Appellate Authority would have a bearing to the present one, the parties had been directed to file a copy of the order of the Appellate Authority as well as the proceedings of the Prescribed Authority both being inter-related.
Before we proceed to deal with that aspect, we are in a situation where a clear case of contempt of this Court has been made out against the respondents, more particularly respondent No. 1.
The power of the Court under the contempt jurisdiction is inherent in Courts of record of plenary jurisdiction like the High Court and is not derived from the Contempt of Courts Act. Such powers are exercised to vindicate its own dignity to protect its officers, or to shield those who are entrusted to its care. We may in this regard refer to Oswald on Contempt of Court 3rd Edn. pages 8 and 9. Exercise of such power amount to mode of vindicating the majesty of law in its active manifestation, against obstruction and outrage. This principle has been accepted with approval by Supreme Court in Goodwill Paint and Chemical Industry Vs. Union of India and another, . It is also to ensure that an ordered community is established and, therefore, necessary in the general interest of the community that the authority of the Courts should not be imperilled and that recourse to them should not be subject to unjustifiable interference. If such interference results then the very structure of ordered life is at risk.
This being the position of law, this Court is faced with the predicament as to what course of action it should take. Should it punish the contemnors by relegating them to the only place that they deserve to be in, i.e., the State Jail? Or should the Court take an alternative route which would serve both the end of maintaining the dignity of the Court and retaining the faith of the citizens in the justice delivery system and, the delinquents well chastised so that they do not repeat such excess in times to come?
While grappling with the predicament, this Court is constrained being conscious that the respondent No. 1 and the respondent No. 2 although proven contemnors, are young officers with a long career before them. V.G. Ramachandran has most eruditely set out that "the object of the discipline enforced by the court in the case of contempt of court is not to vindicate the dignity of the court or the person of the Judge but to prevent undue interference with the administration of justice. This is more intended for the protection of the public who should be vouchsafed the upholding and maintaining untarnished the glory and reputation of the court as regarding its authority, fairness and impartiality". Under such circumstances, I have deemed it expedient to take the alternative route permissible as laid down in a catena of decisions not only of the English Courts but also of our own Apex Court. Some of such are the following:
(i) Duli Chand and others Vs. Union of India and others, .
(ii) Smt. Ram Pyari and others Vs. Jagdish Lal, .
(iii) Abhijit Tea Company Pvt. Ltd. Vs. Terai Tea Co. (P) Ltd. and Others, .
In the last mentioned case, the Supreme Court made the position clear that the anciliary directions are required to be given so that "no one shall be left in lurking doubt that by manoeuvre or otherwise one would get over nonimplementation of the order of Court. In this connection, the Court repeated the age-old maxim "the arm of the Court is long enough to reach injustice wherever it is found."(Refer to Ranjit Kumar Halder Vs. State of West Bengal and Others, ).
Normal orders of injunctions are passed only in cases of threatened violation unless the prayer is for mandatory injunction in a suit filed u/s 39 of the Specific Relief Act. But in circumstances as the present one, it is now a settled law that it is competent for the Court where the contempt is either threatened or has been committed and on an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration whether the offender is a party to the proceedings or not. It is permissible for the Court to pass an order of injunction in the mandatory form and ensure compliance of the orders that have been passed and circumvented.
It has been informed by the learned Counsels that in consideration of the order of the Appellate Authority, the respondent No. 1 has taken a suo moto decision to undo the illegal action taken at his instance on 11.11.2011, and, therefore, order in the form of mandatory injunction need not be passed. On perusal of the order of the Appellate Authority, it is amply clear that substance of his finding is that the Prescribed Authority lacked jurisdiction in exercising its power u/s 9(1) of Sikkim Public Premises (Eviction of Unauthorized Occupants & Rent Recovery Act,1980) in respect of the premises in question. We may refer to the following :
... However, we are not on the question of determination of as to which one would be the correct position when two views are possible but we are having a situation where:
(1) The issue of right, title over a disputed land is involved which are usually determined in common law proceeding under common law.
(2) The issue of ingredients of Sikkim Public Premises Eviction of Unauthorised Occupants & Rent Recovery Act, 1980 is also involved an
(3) The applicability and otherwise of Forest law i.e. The Forest Conservation Act, 1980 or any other law and
(4) The implication of whether a forest land having been under a civil works department loses its character of being as such and other relevant issues etc. as are involved.
... The appellant therefore is at liberty to institute such proceedings in common law for declaration of his proprietary rights if any, if he is so advised and seek such relief as may be felt appropriate. ....
It has also been informed that as a consequence of the decision to recall the order dated 11.11.2011 by the respondent No. 1 in pursuance of the decision of the Appellate Authority, the situation has been brought to the position of status quo ante 11.11.2011, as regards the building of the petitioner and that the petitioner has been provided with an opportunity to approach the competent Court of law for remedy. In view of this no further order need be passed in that regard. It is, however, made clear that the competent court while deciding the questions in issue shall not be influenced in any manner by any of the observations in the present case and shall confine itself to the merits of the issues before it and take a decision in accordance with law.
With the above observations, the contempt proceedings stands disposed of.