IN '2-Q\\ ^ ^.....4- ....^••^^JI^iv^... ^^0-"::""^^^^"^" s^Shri' 't"^."l6t:.?:E^S----- it%d<."-V'u-*""". 7SQ3/2QQ9 w^" ^Kripal Das^ S/o Lachchiram, aged about 83 years, R/o Ward Vo. 4 Pendra Road, Tahsil Pendra Road, District Bilaspur (C.G.) Versiis Q^.^ s Shri Sonmani'Bhora, District Magistrale, i^iiaspur {UAj.'j CONTEMT 215 OF OF 12 OF THE.CONTEMPT OFCOUMT ACT 1971 (s:k HIGH COURT OF CHHATTISGARH : BILASPUR Sinale Bench:Hon'ble Shri Manindra Mohan Shrivastava. J. Contempt Case (ClNo.33/2011 PETITIONER RESPONDENT CONTEMNOR Kripal Das Versus Shri Sonmani Bhora .„ -.. c^L FOR PRONOUNCEMENT OFORDERON *? DECEMBER.2011 Sd/" Manindra Mohan Shrivastava Judge r r~~»i ~7 A— -•--—••• HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVAJ. Contempt Case (ONo.33/2011 PETITIONER Kripal Das Versus RESPONDENT Shri Sonmani Bhora CONTEMNOR (Contempt Petition under Article 215 of the Constitution of India read with Section 12 of the Contempt of Court Act, 1971) Appearance: Dr. Shailesh Ahuja, counsel for the petitioner. Shri M.P.S.Bhatia, counsel forthe respondenVcontemnor. ORDER A-^L (Passed on -sc—December,2011) This contempt petition has been filed by the petitioner alleging willful disobedience of order dated 19-07-2010 passed by this Court in / Writ Petition (C) No.7503 of2009. 2. The facts giving rise to this contempt petition are that the petitioner claimed that he is entitled to Samman Nidhi under the notification dated 05-08-2008 promulgated by the State Government, under which, Samman Nidhi i.e. honour has to be given to category of persons, who were detained under Maintenance of Internal Security Act, 1971 (Act 1973) (In short "MISA")or under Defense of India Rules, 1971 (In short "D.1.R.") for political or social reasons. The claim of the petitioner was, however, rejected vide order dated 28-02-2009, aggrieved by which, the petitioner preferred Writ Petition(C) No.5802 of 2009. That writ petition was disposed of, granting liberty to the petitioner to file a fresh application ^^•s'^^^:. .^-c^ f'e 1 along with the relevant documents before the District Magistrate, Bilaspur. However, vide order dated 12-10-2009, the representation of the petitioner was again rejected. Aggrieved by the said order, the petitioner again filed Writ Petition (C) No.7503/2009. Upon consideration of the pleadings and material available on record, the Court reached to the conclusion that the officer concerned i.e. the District Magistrate has not applied its mind properly to the facts of the case and the provisions of ^ law, concerning the arrest of the petitioner before passing of the order. Order dated 12-10-2009, was therefore, quashed and the District Magistrate was directed to examine all the facts, if necessary, providing opportunity of hearing to the petitioner and after application of mind, pass the order in accordance with law as early as possible, preferably within a period of 6 weeks from the date of receipt of the copy of the order. 3. Thereafter, the petitioner was called upon by notice dated 20/23- 08-2010 (Annexure A-2). Even after expiry of period of six weeks, when no decision was taken, on 16-12-2010, the instant contempt petition has been filed. In the aforesaid petition, notices were issued on 31-01-2011 requiring the respondenVcontemnor to show cause as to why contempt proceedings may not be initiated against him. The respondenVcontemnor filed his reply and in the reply, it has been stated that the District Level Committee, which is authorized and competent under Rule-6 of the Loknayak Jai Prakash Narayan (MISA/DIR Rajnaitik Ya Samajik Karno Se Niruddh Vyakti) Samman Nidhi Niyam, 2008 (hereinafter referred to , as "the Rules of 2008"), considered the case of the petitioner along with 1 the entire documents and on the basis of the material available on record, ^ % the petitioner was not found entitled to honour Pension/Samman Nidhi, as per notification dated 05-08-2008. Copy of resolution has been placed on record as Annexure R-12. The reason assigned in the decision is thatthe petitioner is ineligible as in the relevant records, MISA/D.I.R. provision has not registered as reported by the Superintendent of Police and Superintendent, Central Jail. In the reply, it has been stated that after the order was passed by the Court and served upon the respondent, an enquiry was made, reports were obtained from the Superintendent of Police and Superintendent, Central Jail, and then, the matter was placed for consideration before the District Level Committee, which is authorized and competentto decide and take decision and the said committee finally rejected the representation of the petitioner for grant of Samman Nidhi. Referring to aforesaid proceedings drawn on different dates, it has been pleaded that there was no intention to flout the order passed by this Court and the time was consumed, because enquiry was conducted, after giving opportunity of hearing to the petitioner to submit documents and reports were obtained from different officers. 4. Learned counsel for the petitioner submitted that in the light of the order passed by this Court on 19-07-2010, the respondent was obliged under the law to pass an order in favour of the petitioner and no other conclusion could be arrived at, because the issue as to whether the petitioner was entitled to honour/Pension was decided by the Court, after detailed consideration of material available on record and all that was -^- ^-l._ required to be done by the District Magistrate, was to pass appropriate order granting pension. He submits that the Court, after careful consideration of the material available on record, found that in view of the entries made in the crime register, which also indicates MISA, and further that it was improbable that the petitioner was detained simply under the provisions of Section 151, 107 and 116(3) ofthe Cr.P.C., concluded that petitioner was detained under MISA. It is submitted that the finding has been recorded by the Court, after perusing the material available on record including the crime register, which clearly established that the petitioner's detention was under MISA and for opposition to the government. Therefore, the decision of the respondent to reject the representation, is clearly an act of overreaching and nullifying the order passed by the Court and this amounts to willful disobedience of the order passed by this Court. 5. On the other hand, learned counsel for the respondent firstly submitted that vide order dated 19-07-2010, the Court had directed the District Magistrate to examine all the facts, if necessary, to provide opportunity of hearing to the petitioner and after application of mind, pass the order in accordance with law. He submits that the District Magistrate alone is not a competent authority to decide the matter, as provided under Rule 6 of the Rules of 2008. The applications are required to be examined and decision to be taken by the District Level Committee comprising of four members, of which, the District Magistrate is the Member Secretary. He submits that the decision has not been taken by the respondent in its individual capacity nor dedsion could be taken ^^i/'-^ £1 / / without applying the Rules of2008, under which, power has been vested in a District Level Committee. The decision has been taken by the District Level Committee, and therefore, for such a decision taken by the Committee, the respondent could not be held liable for contempt proceedings. Next submission of learned counsel for the respondent is that vide order dated 19-07-2010, there was a direction to examine all the facts and pass order, in accordance with law, after application of mind and after providing opportunity of hearing to the petitioner. It is submitted that the petitioner was afforded opportunity of hearing. Referring to the averments made in the reply, it is submitted that the reports from the office of Superintendent of Police and Superintendent, Central Jail were obtained. The Superintendentof Police and Superintendent, Central Jail both, on the basis of records available at Police Station and records available in the Central Jail, Bilaspur, reported that the petitioner was not arrested on the allegation of commission of offence under MISA. The relevant crime register entries in the Central Jail, the reports of the Superintendent of Police and certificate of Jail Superintendent, which were collected during the course of enquiry, were finally placed before the District Level Committee for consideration. The District Level Committee, after considering the report of the Superintendent of Police and the Jail Superintendent, came to the conclusion that no offence of MISA/D.I.R. was registered, and therefore, the petitioner is not entitled for Samman Nidhi. He submits that the matter was thus examined by the District Level Committee on the basis of the material collected during the course of ,.-."•. ••^^^^ f'%s& \ "•®^j ^. ^. ^' ^' enquiry and bonafide decision in the matter has been taken, and therefore, the order of the Court has been complied with in its true spirit. 6. A perusal of the order passed by this Court on 19-07-2010 would show that after considering pleadings and material available in the records of the case, it was found that there was no proper application of mind by the authorities. The Court took into consideration the crime register, which indicated the date of detention of the petitioner, reason for detention, the name of the petitioner at S.No.45, wherein detention was shown to be under MISA in the first column of the crime register and in the column of offences and section, it was mentioned Section 107, 151 and 116(3) of the Cr.P.C. and at the last column of remarks, it was stated that the detention was on account of opposition to the Government. Taking into consideration the other peculiar circumstances of the case, particularly the long period of detention, scheme of statutory provision contained in Section 107, 151 and 116(3) of the Cr.P.C. and also taking into consideration that no document has been produced to indicate regarding any default on the part of the petitionerto execute the bond, it was also observed that it does not appear to be probable that the petitioner was detained simply under the provisions of Section 107, 151 and 116(3) of the Cr.P.C., that too, for want of necessary documents. Taking into consideration the aforesaid material available on record and the aforesaid circumstances, it was held that the District Magistrate had not applied its mind properly to the facts of the case and the provisions of law. The aforesaid findings and observations made by the Court resulted ^^^ ":% ^y^-,^f" in setting aside the earlier decision dated 12-10-2009 with a direction to examine all the facts and take decision in accordance with law. 7. From the reply, it is reflected that when the matter was again remanded to the District Magistrate, the District Magistrate issued notice to the petitioner requiring him to submit documents in his support. It is stated in the reply that no document was filed by the petitioner. This fact has not been controverted by the petitioner by filing rejoinder. The respondent thereafter proceeded to hold inquiry and in that enquiry, the Superintendent of Police was required to submit a report, vide its memo dated 06/08-09-2010 specifically mentioning that in the crime register of Police Station, the word "MISA" has been mentioned, but in thecertificate given by the Jail Superintendent, "MISA" word has not been mentioned, but Section 151, 107 and 116(3) of the Cr.P.C. has been stated. The Superintendent of Police was required to submit his return in three days as the proceedings were drawn in compliance of the order passed by the Court. When no return was received from the office of the Superintendent of Police, another memo dated 17/21-09-2010 was issued requiring him to send necessary information. Vide memo dated 14-09-2010, the Superintendent of Police required certain documents of records, which were sent to him, vide memo dated 23-09-2010. Again, a memo dated 06-10-2010 was issued to the Superintendent of Police requiring him to submit a report, and thereafter, vide memo dated 26-10-2010, the Superintendent of Police informed that in the year 1975 in the Police Station Gorella, Ishtagasha No.41/1975, dated17-11-1975, preventive action as per the Roznamchasana No.432 was taken under Section 107, 116(3) of the Cr.P.C. and the Eshtagasa was submitted in the Court on 18-11-1975. Thereafter, Eshtagasha No. 13/75 under Section 151 of the Cr.P.C. and another Ishtagasha No.45/1975 under Sections 107, 116(3) ofthe Cr.P.C. were also submitted in the Court against the petitioner and in both the Ishtagasha, the word "MISA" has been used, but, in the admission register of Central Jail dated 29-11-1975, no provision of "MISA" has been stated. Vide memo dated 11-11-2010, the Collector again required the Superintendent of Police togive a clear-cut finding as to whether the petitioner was detained under MISA/D.I.R. or not. As no response was received, D.0. letter dated 28-01-2011 was sent by the Additional Collector and memo dated 03-03-2011 was sent by the District Magistrate to the Superintendent of Police as reminder, to send the specific report at the earliest. Finally, vide memo dated 14-03-2011, the Superintendent of Police submitted that in the records of Central Jail as well as in the records of Police Station, no provision of "MISA" has been mentioned. 8. Earlier vide memo dated 29-10-2009, the Superintendent, Central Jail had also reported that in the jail records, the petitioner has been shown under custody between the period 29-11-1975 to 03-01-1976 under Section 151, 107 and 116(3) ofthe Cr.P.C. The aforesaid material was placed before the District Level Committee, of which, the respondent was the Member Secretary and after considering the report of the Superintendent of Poliee and the Superintendent, Central Jail, the i committee categorically recorded that as no provision of MISA/D.I.R. has been registered in any of the provisions, the petitioner is not entitled to ^tS^s ^^^- —- get the pension (Samman Nidhi). In view of the decision taken by the committee, the respondenVcontemnor passed the order on 16-03-2011. 9. From the aforesaid facts and circumstances of the case, it is difficult for this Court to hold that the respondent has willfully disobeyed the order passed by this Court on 19-07-2010. It is the submission of learned counsel for the petitioner that in view of the findings recorded by the Court, the only conclusion possible was that the petitioner was detained under MISA, and therefore, the petitioner was entitled to grant of pension, cannot be accepted. Vide order 19-07-2010, this Court has quashed the order dated 12-10-2009 by recording a finding that there was no proper application of mind by the District Magistrate to the aforesaid circumstances and documents. Mention of the circumstances and documents in order dated 19-07-2010 was made a basis to come to the conclusion that there was no proper application of mind. Therefore, the matter was again directed to be examined. After the matter was remanded to the Collector, the observations, which were made by this Court, were specifically made an issue of enquiry. Finally, the decision was taken by the District Level Committee by rejecting the petitioner's application, because records did not indicate any provision of MISA/D.I.R. In the order passed by the Court on 19-07-2010, it has not been held that the petitioner was entitled to grant of Samman Nidhi, but the matter was remanded for examination. The other submission of learned counsel for the petitioner even if accepted may lead to a conclusion that the decision taken is either illegal, or arbitrary, but that would not mean that there has been willful disobedience of the order of the Court. The decision in the 10 ^4 case of the petitioner has not been taken by the respondent individually, but the decision was taken by the District Level Committee comprising of four members, of which, the respondent was the Member Secretary. The material placed on record as also various communications would show that the respondent conducted an enquiry in the case of the petitioner and after giving opportunity of hearing to the petitioner and collecting material, placed the same before the District Level Committee for consideration, because the District Level Committee alone was competent under Rule 6 of the Rules of 2008 to take a decision with regard to entitlement of honour (Samman Nidhi), it is the committee, which has rejected the application of the petitioner. 10. In the result, this Court is of the opinion that the present is not a case of willful disobedience. The respondent has, therefore, to be discharged and contempt petition is dismissed. Needless to say that ifthe petitioner is aggrieved by the decision taken by the District Level Committee, it would be open for him to take recourse to such remedy as may be available to him under the law. Sd/- Manindra Mohan Shrivastava Judge Tumane