George Mathew v. Satyajeet Rajan, IAS; Anandakrishnan, IPS; A.S. Renjith; S. Suha, IAS; T.M. Kassim; Addl R5 impleaded vide order dt 23/06/2020 in IA 1/2020 in COC 712/2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942** **Con.Case(C).No.712 OF 2020 IN WP(C).8157/2020** **INTERIM ORDER IN WP(C) 8157/2020(T) DATED 18.03.2020 OF THE LEARNED SINGLE JUDGE OF THE HON'BLE HIGH COURT OF KERALA** ## **PETITIONER/PETITIONER IN W.P.(C):** **GEORGE MATHEW AGED 65 YEARS S/O.MATHAI, PARAPPATTU HOUSE, VETTAMBARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** **BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW** ## **RESPONDENTS/RESPONDENT NO.1 TO 3 AND 6 IN THE WP(C):** **1 SATYAJEET RAJAN, IAS AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, SECRETARY, TAXES (A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001** - **2 ANANDAKRISHNAN.I.P.S** **AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695033** - **3 A.S.RENJITH** **AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, THE DEPUTY COMMISSIONER OF EXCISE, ERNAKULAM-682018** Cont.Case No.712/2020 2 **4 S.SUHA .I.A.S AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, THE DISTRICT COLLECTOR, COLLECTORATE.P.O, KAKKANAD, ERNAKULAM, PIN-682030** **5 T.M.KASSIM (AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER),THE CIRCLE INSPECTOR OF EXCISE,KOTHAMANGALAM,PIN-686691,ERNAKULAM DISTRICT** **(ADDL R5 IS IMPLEADED VIDE ORDER DTD 23/06/2020 IN IA 1/2020 IN COC 712/2020)** ## **SRI SUMAN CHAKRAVARTHY-SR GP** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 05-08-2020, THE COURT ON 07-08-2020 DELIVERED THE FOLLOWING:** Cont.Case No.712/2020 3 ## **R.NARAYANA PISHARADI, J** ************************ Cont.Case (C) No.712 of 2020 -----------------------------------------Dated this the 7[th] day of August, 2020 ## **O R D E R** This contempt of court case is filed by the petitioner in W.P.(C) No.8157 of 2020 of this Court on the allegation that the respondents have wilfully disobeyed the interim order dated 18.03.2020 passed by this Court in that writ petition. 2. The petitioner was the licensee of the toddy shops in Group No.IV of the Kothamangalam Excise Range from 2007 onwards. The licence was allotted to him for the years 2014-2017 as preferential right as per Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002 (hereinafter referred to as 'the Rules'). 3. On 24.02.2010, samples of toddy were taken from the toddy shop T.S.No.15 of Group No.IV of Kothamangalam Excise Range as per Rule 8 of the Rules. The chemical analysis of the Cont.Case No.712/2020 4 sample revealed that it contained ethyl alcohol by 8.23% by volume which was in excess of the prescribed limit as per Rule 9(2) of the Rules. Consequently, a case was registered against the petitioner as Crime No.9/2017 of the Kothamangalam Excise Range under Sections 56(b) and 57(a) of the Abkari Act. 4. The writ petition was filed by the petitioner, seeking a declaration that the petitioner is entitled to get preferential right for the allotment of the toddy shops in Group No.IV in Kothamangalam Excise Range for the year 2020-21 as per Rule 5(1)(a) of the Rules, without taking into account the registration of the case against the petitioner as a disqualification and also to issue a direction to the respondents to give preferential right to the petitioner for allotment of the toddy shops, without taking into account the registration of the case against him as a disqualification. 5. The petitioner had sought interim relief in the writ petition to the effect that the respondents may be directed to give him preferential right under Rule 5(1)(a) of the Rules, without taking into account the registration of the case against Cont.Case No.712/2020 5 him as a disqualification. 6. As per the interim order dated 18.03.2020 passed in the above writ petition, this Court found that a positive direction cannot be issued to the respondents, by way of an interim order, to give the petitioner preferential right in the allotment of the toddy shops. However, this Court passed an order in favour of the petitioner, which reads as follows: _“Consequently, it is directed that the respondents shall not consider the pendency of the case registered against the petitioner as Crime No.9/2017 of the Kothamangalam Excise Range as a disqualification for granting him preferential right under Rule 5(1)(a) of the Rules.”_ 7. The present petition under Section 12 of the Contempt of Courts Act, 1971 (hereinafter referred to as 'the Act') is filed by the petitioner alleging that the respondents have disobeyed the aforesaid interim order passed by this Court in the writ petition. 8. The crux of the allegations in this petition can be stated as follows. The allotment of the toddy shops in Kothamangalam Excise Range was scheduled to be held on Cont.Case No.712/2020 6 18.03.2020. The petitioner submitted application for getting preferential right and allotment with a covering letter dated 18.03.2020 stating that the certified copy of the order of this Court would be produced at 16.00 hours on that day or as soon as that order was received. Thereafter, a certified copy of the interim order passed by this Court was produced before the respondents by 18.00 hours on 18.03.2020. However, the Deputy Excise Commissioner and the District Collector deferred the allotment of the toddy shops in Group No.IV in Kothamangalam Excise Range and they returned the application and the other documents submitted by the petitioner. The petitioner is sustaining huge loss by the act of the respondents in not complying with the interim order passed by this Court in the writ petition. In the aforesaid circumstances, the petitioner has prayed for initiating contempt proceedings against the respondents. 9. Heard learned counsel for the petitioner and also the learned Senior Government Pleader who has appeared for the respondents. Cont.Case No.712/2020 7 10. Section 2(b) of the Act defines 'civil contempt'. As per Section 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. 11. The expression 'wilful' in Section 2(b) of the Act means an act or omission which is done voluntarily and intentionally and with the specific intent to do something the law forbids or with the specific intent to fail to do something the law requires to be done, that is to say, with bad purpose, either to disobey or to disregard the law. It signifies a deliberate action done with evil intent or with a bad motive or purpose (See **Ashok Paper Kamgar Union v. Dharam Godha : AIR 2004 SC 105** ). 12. In order to initiate contempt proceedings, _prima facie_ , it has to be established that disobedience of the order was 'wilful'. The word 'wilful' introduces a mental element and hence, requires looking into the mind of the person/contemnor by gauging his actions, which is an indication of one's state of mind. 'Wilful' means knowingly intentional, conscious, calculated and 8 Cont.Case No.712/2020 deliberate with full knowledge of consequences flowing therefrom. It excludes casual, accidental, _bona fide_ or unintentional acts or genuine inability. Wilful acts do not encompass involuntary or negligent actions. The act has to be done with a bad purpose or without justifiable excuse or stubbornly, obstinately or perversely. Wilful act is to be distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It does not include any act done negligently or involuntarily. The deliberate conduct of a person means that he knows what he is doing and intends to do the same. Therefore, there has to be a calculated action with evil motive on his part (See **Ram Kishan v. Tarun Bajaj : (2014) 16 SCC 204** ). 13. Contempt of a civil nature can be held to be made out only if there has been a wilful disobedience of the order. Even though there may be disobedience, yet if the same does not reflect that it has been a conscious and wilful disobedience, a case for contempt cannot be held to have been made out. The ingredients of wilful disobedience must be there before anyone Cont.Case No.712/2020 9 can be hauled up for the charge of contempt of a civil nature (See **Dinesh Kumar Gupta v. United India Insurance Company : (2010) 12 SCC 770** ). 14. The Court shall always zealously enforce its order. But, a mere technicality shall not be a ground to punish the contemnor. A proceeding for contempt should be initiated with utmost reservation. It should be exercised with due care and caution (See **Sushila Raje Holkar v. Anil : (2008) 14 SCC 392** ). 15. Power to punish for contempt is to be resorted to when there is clear violation of the court's order. Since contempt proceedings may be of far reaching consequence, the power should be invoked only when a clear case of wilful disobedience of the court's order has been made out. A petitioner who complains breach of the court's order must allege deliberate or contumacious disobedience of the court's order (See **Kapildeo Prasad Sah v. State of Bihar : AIR 1999 SC 3215** ). 16. The question whether the petitioner has made out a prima facie case for initiating contempt of court proceedings Cont.Case No.712/2020 10 against the respondents has to be decided in the backdrop of the principles mentioned above. 17. At the outset, it is to be noted that this Court had not given any positive direction to the respondents to give preferential right to the petitioner in the allotment of the toddy shops. This Court had also not issued any direction to the respondents to allot the right to conduct the toddy shops in favour of the petitioner. The direction of this Court was only that the pendency of the case registered against the petitioner shall not be considered as a disqualification for granting him preferential right in the allotment of the toddy shops. 18. Admittedly, allotment of the toddy shops in Group No.IV of the Kothamangalam Excise Range was scheduled to be held on 18.03.2020. Admittedly, allotment or sale did not take place on that date. The petitioner has also no case that allotment or sale was conducted on any other subsequent date. Even as per the averments in the petition, on 18.03.2020, the allotment was deferred by the respondents. When the allotment or sale itself did not take place, there was no occasion to consider the Cont.Case No.712/2020 11 claim of the petitioner to get preferential right in the allotment or sale. Even as per the averments in the petition, the respondents did not treat the pendency of the criminal case registered against the petitioner as a disqualification for granting him preferential right in the allotment or sale of the toddy shops. The position would have been different if the respondents had made any allotment or sale without giving preferential right to the petitioner on treating the pendency of the case registered against him as a disqualification. 19. It is stated in the petition that, on 18.03.2020, the respondents deferred the allotment of the toddy shops. Learned counsel for the petitioner has not explained how the action of the respondents in deferring the allotment or sale of the toddy shops amounts to disobeying the interim order passed by this Court in the writ petition. It is alleged in the petition that, when the allotment was deferred, the respondents returned the application and the other documents submitted by the petitioner. The act of the respondents in returning the documents submitted by the petitioner on deferring the allotment also does not amount to Cont.Case No.712/2020 12 disobeyance of the interim order passed by this Court in the writ petition. 20. Learned counsel for the petitioner has submitted that, subsequently, the right to conduct the toddy shops was given to another person under Rules 3 and 4 of the Abkari Shops Departmental Management Rules, 1972. The question whether the appointment of another person by the respondents as departmental agent is legally sustainable or not does not come within the purview of this contempt petition. The court cannot not 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 wilful violation of the same (See **Sudhir Vasudeva v. M. George Ravishekaran: AIR 2014 SC 950** ). Cont.Case No.712/2020 13 ## 21. In **Niaz Mohammad v. State of Haryana : AIR 1995** ## **SC 308** , the Apex Court has held as follows: _“Where the contempt consists in failure to comply with or carry out an order of a Court made in favour of a party, it is a civil contempt. The person or persons in whose favour such order or direction has been made can move the Court for initiating proceeding for contempt against the alleged contemner, with a view to enforce the right flowing from the order or direction in question. But such a proceeding is not like an execution proceeding under Code of Civil Procedure. The party in whose favour an order has been passed, is entitled to the benefit of such order”._ (emphasis supplied) 22. In the instant case, it cannot be found that, by not conducting the allotment or sale of the toddy shops, the respondents have declined the petitioner the benefit of the interim order passed by this Court in the writ petition. 23. In fact, if an order is capable of more than one interpretation giving rise to variety of consequences, noncompliance of the same cannot be held to be wilful disobedience of the order so as to make out a case of contempt. In the event Cont.Case No.712/2020 14 two interpretations are possible and the action of the alleged contemnor pertains to one such interpretation, the act or acts cannot be ascribed to be otherwise contumacious in nature. A doubt in the matter as regards the wilful nature of the conduct, if raised, question of success in a contempt petition would not arise (See **Anil Ratan Sarkar v. Hirak Ghosh : AIR 2002 SC 1405** ). 24. In the aforesaid circumstances, I find that the petitioner has not made out any prima facie case for initiating contempt proceedings against the respondents. The petition is liable to be dismissed. Consequently, the petition is dismissed. **==> picture [39 x 13] intentionally omitted <==** ## **R.NARAYANA PISHARADI, JUDGE** jsr **True Copy** **PS to Judge** Cont.Case No.712/2020 15 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A** **CERTIFIED COPY OF THE ORDER DATED 18.03.2020 IN WP(C) NO.8157/2020 PASSED BY THIS HON'BLE COURT** **ANNEXURE B PHOTOCOPY OF THE COVERING LETTER DATED 18.03.2020 SUBMITTED BEFORE THE DEPUTY COMMISSIONER OF EXCISE, ERNAKULAM WITH COPIES TO THE DISTRICT COLLECTOR, ERNAKULAM AND CI OF EXCISE, KOTHAMANTALAM RESPONDENTS' EXHIBITS : NIL** TRUE COPY PS TO JUDGE