# Pradeep Kumar Srivastava & Ors v. Vishal Singh, C.E.O., & Ors

- **Citation:** (2020) 8 ILRA 261
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-19
- **Case number:** Contempt Application (Civil) No. 1785 of 2020
- **Bench:** Surya Parakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-srivastava-ors-v-vishal-singh-c-e-o-ors-46032
- **Pages:** 18

## Headnote

Act (70 of 1971) - Civil contempt -
Section 2(b) - quasi-criminal - Burden of
Proof - 'he who asserts must prove' -
person
who
asserts
deliberate
disobedience of the court order must
prove beyond reasonable doubt that the
alleged contemnor had knowledge of
the order - Standard of Proof - that of a
criminal proceedings - To hold a person
guilty of contempt - breach alleged to
be established beyond all reasonable
doubt - In case of doubt, benefit to go
to the person charged (Para 12, 14)
B. Civil Contempt - Contempt of Courts
Act,
1971
-
Section
2(b),
12
-
extraordinary jurisdiction - Power -
when to exercise - when law courts
satisfied beyond doubt that there is
clear case of wilful disobedience of the
Court's order - adjudication of the
liability to be made on admitted &
undisputed facts - Courts must not enter
into questions that have not been dealt
with or decided in the judgment /order
violation of which is alleged (Para 10)
Applicants failed to categorically state on
affidavit as to what constructions are contrary
to the interim order -no case for wilful
disobedience of the writ court order made out
- contempt application based on suppression
and
concealment
of
material
facts
,
misleading
averments,
which
itself
are
contemptuous in nature (Para 27)

Dismissed. (E-5)

List of cases cited :-

## Text

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8 All. Pradeep Kumar Srivastava & Ors. Vs. Vishal Singh, C.E.O., & Ors.
261
(2020)08ILR A261
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.06.2020

BEFORE

THE HON'BLE SURYA PARAKASH
KESARWANI, J.

Contempt Application (Civil) No. 1785 of 2020

Pradeep Kumar Srivastava & Ors.
 ...Applicants
Versus
Vishal Singh, C.E.O., & Ors.
 ...Opposite Parties

Counsel for the Applicants:
Sri Ashish Kumar Singh, Sri Ajay Kumar Singh

Counsel for the Opposite Parties:
Sri Vineet Sankalp, Sri M.C. Chaturvedi
(Addl. A.G.).

A. Civil Contempt - Contempt of Courts
Act (70 of 1971) - Civil contempt -
Section 2(b) - quasi-criminal - Burden of
Proof - 'he who asserts must prove' -
person
who
asserts
deliberate
disobedience of the court order must
prove beyond reasonable doubt that the
alleged contemnor had knowledge of
the order - Standard of Proof - that of a
criminal proceedings - To hold a person
guilty of contempt - breach alleged to
be established beyond all reasonable
doubt - In case of doubt, benefit to go
to the person charged (Para 12, 14)
B. Civil Contempt - Contempt of Courts
Act,
1971
-
Section
2(b),
12
-
extraordinary jurisdiction - Power -
when to exercise - when law courts
satisfied beyond doubt that there is
clear case of wilful disobedience of the
Court's order - adjudication of the
liability to be made on admitted &
undisputed facts - Courts must not enter
into questions that have not been dealt
with or decided in the judgment /order
violation of which is alleged (Para 10)
Applicants failed to categorically state on
affidavit as to what constructions are contrary
to the interim order -no case for wilful
disobedience of the writ court order made out
- contempt application based on suppression
and
concealment
of
material
facts
,
misleading
averments,
which
itself
are
contemptuous in nature (Para 27)

Dismissed. (E-5)

List of cases cited :-

1. Rosnan Sam Boyce Vs B.R. Cotton Mills
Ltd. (1990) 2 SCC 636 (para-9)

2. Kapil Deo Prasad Sah Vs St. of Bihar (1999)
7 SCC 569 (paras-9 & 11)

3. Ashok Paper Kamgar Union Vs Dharam
Godha (2003) 11 SCC 1

4. Anil Kumar Shahi Vs Professor Ram Sevak
Yadav (2008) 14 SCC 115

5. Jhareswar Prasad Paul Vs Tarak Nath
Ganguly (2002) 5 SCC 352

6. Union of India Vs Subedar Devassy PV
(2006) 1 SCC 613

7. Bihar Finance Service House Construction
Co-operative
Society
Ltd.
Vs
Gautam
Goswami (2008) 5 SCC 339

8. Chhotu Ram Vs Urvashi Gulati (2001) 7 SCC 530

9. Avishek Raja Vs Sanjay Gupta (2017) 8
SCC 435 (paras-20 to 23)

10. Noor Saba Vs Anoop Mishra & anr. (2013)
10 SCC 248 (para-14)

11. Anil Ratan Sarkar Vs Hirak Ghosh (2002)
4 SCC 21

12. Aligarh Municipal Board Vs Ekka Tonga
Mazdoor Union (1970) 3 SCC 98 (para-8)

13. Babu Ram Gupta Vs Sudhir Bhasin (1980) 3 SCC 47

14. Chhotu Ram Vs Urvashi Gulati (2001) 7
SCC 530 (para-2)
262 INDIAN LAW REPORTS ALLAHABAD SERIES
15.
All
India
Anna
Dravida
Munnetra
Kazhagam Vs L.K. Tripathi (2009) 5 SCC 417
(para-78 to 81)

16. K.D. Sharma Vs Steel Authority of India &
or.s (2008) 12 SCC 481

17. Dnyandeo Sabaji Naik Vs Pradnya Prakash
Khadekar (2017) 5 SCC 496

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Ajay Kumar Singh,
learned counsel for the applicants and Sri
M.C. Chaturvedi, learned Additional
Advocate General assisted by Sri Vineet
Sankalp, learned counsel for the opposite
parties.

Facts:

2. This contempt application under
Section 12 of the Contempt of Courts
Act, 1971 (hereinafter referred to as 'the
Act, 1971') has been filed by the
applicants alleging that the opposite
parties have wilfully disobeyed the
interim order dated 27.07.2012 passed by
the Division Bench in PIL No.31229 of
2005 (Kautilya Society and another vs.
State of U.P. and others). The relevant
portion of the aforesaid interim order
dated 27.07.2012 is reproduced below:-

"As
directed
above,
the
Varanasi Development Authority shall
ensure that no further constructions
within 200 meters from the highest flood
level at banks of river Ganga at Varanasi
is made and filed a compliance report by
the next date fixed."

Submissions:-

3.

Learned
counsel
for
the
applicants submits as under:-

(i) By the aforesaid interim
order dated 27.07.2012, the Division
Bench has clearly restrained from raising
any construction within 200 meters from
the highest flood level at the banks of
river Ganga at Varanasi.

(ii) In another PIL No.59698 of
2013 (M/s Prathik Samajik Sewa Samiti
and another vs. State of U.P. through
Secretary and 6 others), a Division Bench
passed
an
interim
order
dated
08.11.2013 directing that the respondents
shall ensure that no pakka constructions
are raised within 200 meters of the bank
of river Ganga at Varanasi till the next
date of listing.

(iii)
Despite
the
aforesaid
interim order 27.07.2012 in Kautilya
Society's
case
(supra),
the
Chief
Executive Officer of "Shri Kashi
Vishwanath Special Area Development
Board" issued a tender notice inviting
tenders
for
certain
constructions/
development work in Shri Kashi
Vishwanath Temple and surrounding
areas, which fall within 200 meters from
the highest flood level of river Ganga at
Varanasi. The Chief Executive Officer of
"Shri Kashi Vishwanath Special Area
Development Board", is the opposite
party No.1. Thus, the opposite party No.1
has wilfully disobeyed the interim order
dated 27.07.2012 passed by the writ court
in Kautilya Society's case (supra).

(iv)
In
another
Writ-C
No.14997
of
2018
(Redis
Market
Vyavasaik Samiti and another vs. Union
of India and 2 others), the writ court
passed
an
order
dated
30.04.2018
disposing of the writ petition with a
direction
to
decide
petitioner's
representation in accordance with law on
the point whether the plot falls within
200 meters of the holy Ganga river. In
the counter affidavit in Writ Petition
8 All. Pradeep Kumar Srivastava & Ors. Vs. Vishal Singh, C.E.O., & Ors.
263
No.41249 of 2017 (M/s Knots India
Carpets Private Ltd. Vs. State of U.P. and
others),
the
Varanasi
Development
Authority, Varanasi has itself referred to
the interim order dated 27.07.2012
passed by the writ court in Kautilya
Society's
case
(supra),
regarding
restriction on construction within 200
meters of the bank of river Ganga. The
Varanasi Development Authority has
itself sought permission for construction
of some new ghats which fact is evident
from the interim order dated 29.07.2013
passed by the writ court in Kautilya
Society's case (supra). Thus, the opposite
party No.1 who is also Secretary of
Varanasi
Development
Authority,
Varanasi, has knowingly disobeyed the
interim order dated 27.07.2012 passed in
Kautilya Society's case (supra).

(v) The entire development work
by "Shri Kashi Vishwanath Special Area
Development Board" is being carried within
200 meters of river Ganga. The restriction
with regard to the construction has not been
lifted by the writ court. Therefore, the
opposite party No.1 has wilfully disobeyed
the interim order of the writ court passed in
the aforesaid PIL in the Kautilya Society's
case (supra).

(vi) The opposite party has not
complied with one of the condition of the
permission granted by the N.M.C.G. and
thus has rendered liable for punishment
under Section 12 of the Act, 1971.

Submission on behalf of Opposite
Party No.1:-

4. Learned Additional Advocate
General has made submissions on behalf
of the opposite party No.1 as under:-

(i) The order dated 27.07.2012
in Kautilya Society's case (supra) was in
the background that some unauthorised
construction was going on at the bank of
river Ganga.

(ii) Several orders were passed
by the writ court subsequently in
Kautilya Society's case (supra). Pursuant
to
order
dated
11.09.2014
and
29.01.2015 in Kautilya Society's case
(supra), the National Mission for Clean
Ganga, Ministry of Water Resources,
River
Development
and
Ganga
Rejuvenation Government of India (for
short
NMCG),
has
constituted
a
committee of experts by order dated
17.02.2016. The terms of reference of the
Committee are mentioned in the order.
The State Legislature has enacted Shri
Kashi
Vishwanath
Special
Area
Development Board Varanasi Act,
2018 (U.P. Act 31 of 2018) under which
several
houses
nearby
Sri
Kashi
Vishwanath Temple, were acquired in
public interest for development and the
authority constituted under the Act, is
carrying on the development work
including prevention of pollution in river
Ganga. The aforesaid authority, i.e. Shri
Kashi
Vishwanath
Special
Area
Development Board (hereinafter referred
to as the Development Board), is
carrying on work under the Act and has
sought
No
Objection
Certificate/
Permission
from
all
concerned
departments including the Committee
constituted on 17.02.2016 under the
orders of the writ court dated 11.09.2014
and 29.01.2015 in Kautilya Society's case
(supra). Thus, the Development Board or
the opposite party No.1 have not
committed any wilful disobedience of the
interim order of the writ court dated
27.07.2012 in Kautilya Society's case
(supra).

(iii)
The
present
contempt
application is an abuse of process of
264 INDIAN LAW REPORTS ALLAHABAD SERIES
court by the applicants who have not
even disclosed their credentials. In
paragraphs-3, 4 and 5 of the contempt
application, the applicants have stated
that the applicant No.1 is Ex Chairman of
some Kashi Patrakar Sangh and the
applicant No.2 is a practising lawyer at
District and Sessions Court, Varanasi and
is Ex General Secretary, Banaras Bar
Association, Varanasi and the applicant
No.3 is a practising lawyer at District and
Sessions Court, Varanasi, and both are
social workers.

(iv) The contempt application
has
been
filed
grossly
concealing/
suppressing material facts, and making
false and misleading averments.

(v) The applicant Nos.2 and 3
despite being advocates as alleged by
them and the applicant No.1 despite
being a journalist as alleged by him, have
filed the present contempt application
without
there
being
any
wilful
disobedience of the order of the writ
court by the opposite parties. They have
made false and misleading averments in
the contempt application and have not
even complied with the clear direction of
this court dated 03.06.2020 to file a
supplementary
affidavit
categorically
stating as to what constructions are being
raised contrary to the interim order dated
27.07.2012 granted by the writ court in
Kautilya Society's case (supra).

(vi) The alleged supplementary
affidavit is nothing but a waste paper and
is grossly misleading and amounts to
fraud played upon the court inasmuch as
the aforesaid alleged supplementary
affidavit dated 10.06.2020 does not bear
signature of any of the applicants or the
alleged deponent Sri Sunil Kumar Gupta
(applicant No.3). It also does not bear
identification by any advocate and
verification of Oath Commissioner. It is
also not accompanied by any application
signed by the counsel of the applicants.
Thus,
the
aforesaid
alleged
supplementary affidavit is nothing but a
waste piece of paper and therefore, it
deserves to be rejected. Since the
applicants have not complied with the
order of this court dated 03.06.2020,
therefore,
this
contempt
application
deserves to be dismissed on this ground
also.

(vii) This contempt application
has no merit and deserves to be
dismissed with exemplary cost.

Discussion and Findings:-

5. I have carefully considered the
submissions of applicants and the learned
Additional Advocate General for the
opposite party No.1.

What is Civil Contempt:-

6. The word "Civil Contempt" has
been defined in Section 2(b) of the Act,
1971, which reads as under:-

"Civil Contempt means wilful
disobedience of any judgment, decree,
direction, order, writ or other process of
a
court
or
wilful
breach
of
an
undertaking given to a court."

7. Section 12 of the Act, 1971
provides for punishment for contempt of
court. Thus, a person may be punished
for civil contempt under Section 12 of
the Act, 1971 provided he has wilfully
disobeyed
any
judgment,
decree,
direction, order, writ or other process of a
court or committed wilful breach of an
undertaking given to a court. Proceedings
in contempt are quasi criminal in nature.
8 All. Pradeep Kumar Srivastava & Ors. Vs. Vishal Singh, C.E.O., & Ors.
265
The law of contempt has to be strictly
interpreted and the requirement of that
law must be strictly complied with before
any person can be committed for
contempt. This is also the view of
Hon'ble Supreme Court in Rosnan Sam
Boyce vs. B.R. Cotton Mills Ltd. (1990)
2 SCC 636 (para-9). In Kapil Deo
Prasad Sah vs. State of Bihar (1999) 7
SCC 569 (paras-9 and 11), Hon'ble
Supreme Court elaborated commission of
civil contempt and held, as under:

"9. For holding the respondents
to
have
committed
contempt,
civil
contempt at that, it has to be shown that
there has been wilful disobedience of the
judgment or order of the Court. Power to
punish for contempt is to be resorted to
when there is clear violation of the
Court's order. Since notice of contempt
and punishment for contempt is of farreaching consequence and these powers
should be invoked only when a clear
case of wilful disobedience of the court's
order has been made out. Whether
disobedience is wilful in a particular
case
depends
on
the
facts
and
circumstances of that case. Judicial
orders are to be properly understood and
complied with. Even negligence and
carelessness can amount to disobedience
particularly when the attention of the
person is drawn to the Court's orders
and its implication.
..... ...... ...... ...... ...... ...... ...... ......

11. No person can defy the
Court's order. Wilful would exclude
casual,
accidental,
bona
fide
or
unintentional acts or genuine inability to
comply with the terms of the order. A
petitioner who complains breach of
Court's order must allege deliberate or
contumacious disobedience of the Court's
order."

(Emphasis supplied by me)

8. Similar view has been expressed
by Hon'ble Supreme Court in Ashok
Paper Kamgar Union vs. Dharam
Godha [(2003) 11 SCC 1], Anil Kumar
Shahi vs. Professor Ram Sevak Yadav
[(2008) 14 SCC 115], Jhareswar
Prasad Paul vs. Tarak Nath Ganguly
[(2002) 5 SCC 352], Union of India vs.
Subedar Devassy PV [(2006) 1 SCC
613], Bihar Finance Service House
Construction
Co-operative
Society
Ltd. vs. Gautam Goswami [(2008) 5
SCC 339], Chhotu Ram vs. Urvashi
Gulati [(2001) 7 SCC 530] and Avishek
Raja vs. Sanjay Gupta [(2017) 8 SCC
435 (paras-20 to 23)].

9. In the case of Noor Saba vs
Anoop Mishra and another [(2013) 10
SCC 248 (para-14)], Hon'ble Supreme
Court held as under:-

"14. To hold the respondents or
anyone of them liable for contempt this
Court has to arrive at a conclusion that
the respondents have wilfully disobeyed
the order of the Court. The exercise of
contempt jurisdiction is summary in
nature and an adjudication of the
liability of the alleged contemnor for
wilful disobedience of the Court is
normally
made
on
admitted
and
undisputed facts. In the present case not
only has there been a shift in the stand of
the petitioner with regard to the basic
facts on which commission of contempt
has
been
alleged
even
the
said
new/altered facts do not permit an
adjudication in consonance with the
established principles of exercise of
contempt jurisdiction so as to enable the
Court to come to a conclusion that any of
266 INDIAN LAW REPORTS ALLAHABAD SERIES
the respondents have wilfully disobeyed
the order of this Court ...."

(Emphasis supplied by me)

10. In Anil Ratan Sarkar vs.
Hirak Ghosh [(2002) 4 SCC 21],
Hon'ble Supreme Court held as under:

"13..........The
Contempt
of
Courts Act, 1971 has been introduced in
the statute-book for the purposes of
securing a feeling of confidence of the
people in general and for due and proper
administration of justice in the country -
undoubtedly a powerful weapon in the
hands of the law courts but that by itself
operates as a string of caution and
unless thus otherwise satisfied beyond
doubt, it would neither be fair nor
reasonable for the law courts to exercise
jurisdiction under the statute."

(Emphasis supplied by me)

11. Thus to hold a person that he
has committed civil contempt, it has to be
shown that there has been wilful
disobedience of any judgment, decree,
direction, order, writ or other process of a
court or wilful breach of an undertaking
given to a court. The exercise of
contempt jurisdiction is summary in
nature and an adjudication of the
liability of the alleged contemnor for
wilful disobedience of the court is
normally made on admitted and
undisputed facts. Power to punish for
contempt is to be resorted to when there
is clear violation of the court's order and
this power should be invoked only when
a clear case of wilful disobedience of the
court's order has been made out. Whether
disobedience is wilful in a particular case
depends on the facts and circumstances
of that case. Even negligence and
carelessness can amount to disobedience
particularly when the attention of the
person is drawn to the court's order and
its implications. To hold a person guilty
of contempt, the standard of proof
required would be the same as in a
criminal proceeding and the breach
alleged shall has to be established
beyond all reasonable doubt. The
power of the court to punish for contempt
is a special and rare power available both
under the Constitution as well as the Act,
1971. It is a drastic power which, if
misdirected, could even curb the liberty
of
the
individual
charged
with
commission of contempt and the public
interest. The very nature of the power
under the Act, 1971, casts a sacred duty
upon Courts to exercise the same with
the
greatest
of
care
and
caution.
Therefore, the Courts must 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.
Power of contempt can be invoked only
when a clear case of wilful disobedience
of the court's order has been made out.

Burden of Proof and Standard of
Proof:-

12. In Aligarh Municipal Board
vs. Ekka Tonga Mazdoor
Union
[(1970) 3 SCC 98 (para-8)], Hon'ble
Supreme Court held that for charge of
contempt of court for disobeying orders
of courts, those who asked that the
alleged contemnors had knowledge of
the order must prove that fact beyond
reasonable doubt. In case of doubt,
benefit ought to go to the person
charged. In Babu Ram Gupta vs.
8 All. Pradeep Kumar Srivastava & Ors. Vs. Vishal Singh, C.E.O., & Ors.
267
Sudhir Bhasin [(1980) 3 SCC 47],
Hon'ble Supreme Court held that it is not
open to the courts to assume an implied
undertaking when there is none on the
record. The aforesaid two judgments
have been referred by Hon'ble Supreme
Court in a subsequent judgment in
Rosnan Sam Boyce (supra). In Chhotu
Ram vs. Urvashi Gulati [(2001) 7 SCC
530 (para-2)], Hon'ble Supreme Court
held, as under:

"2. As regards the burden and
standard of proof, the common legal
phraseology 'he who asserts must prove'
has its due application in the matter of
proof of the allegations said to be
constituting the act of contempt. As
regards the 'standard of proof', be it
noted that a proceeding under the
extraordinary jurisdiction of the court
in
terms
of
the
provisions
of
theContempt of Courts Actis quasicriminal, and as such, the standard of
proof required is that of a criminal
proceeding and the breach shall have to
be established beyond all reasonable
doubt."

(Emphasis supplied by me)

13. The judgment in the case of
Chhotu Ram (supra) has been followed
by Hon'ble Supreme Court in its
judgment in the case of All India Anna
Dravida Munnetra Kazhagam vs. L.K.
Tripathi, [(2009) 5 SCC 417 (para-78
to 81)] after referring to the observations
of Lord Denning in Re. Bramblevale
Ltd. [(1969) 3 All ER 1062](CA).

14. Thus, in matters of contempt,
the person who asserts deliberate
disobedience of the order of the court,
must prove it to constitute an act of
contempt. The jurisdiction of the court
under the Act, 1971 is quasi criminal,
and as such the standard of proof
required
is
that
of
a
criminal
proceedings and the breach shall have
to be established beyond all reasonable
doubt.

15. In the present set of facts, this
court passed an order on 03.06.2020,
as under:

"Counsel for the applicant is
granted
a
weeks
time
to
file
a
supplementary
affidavit
categorically
stating as to what constructions are
being raised contrary to the interim
order granted by the writ court in a PIL
on 26.07.2012.

Put up as fresh on 10.06.2020."

16. Despite the afore-quoted order,
the applicants have filed some typed
papers dated 10.06.2020 alleging it to
be
a
supplementary
affidavit
in
compliance to the afore-quoted order
dated
03.06.2020.
Perusal
of
the
aforesaid alleged supplementary affidavit
dated 10.06.2020, a copy of which was
served upon the opposite party; shows
that it neither bears signature of the
alleged deponent/ applicant No.3 i.e.
Sri Sunil Kumar Gupta nor it has been
signed by the advocate nor by Oath
Commissioner. In paragraph-14 of the
aforesaid paper (alleged supplementary
affidavit), it is mentioned that due to nonavailability
of
coupon
with
Oath
Commissioner on account of lock-down
caused due to COVID-19 Pandemic,
present affidavit could not be sworn
before the Oath Commissioner. The
aforesaid alleged supplementary affidavit
does not bear even signature of the
deponent on any of the pages, who is
268 INDIAN LAW REPORTS ALLAHABAD SERIES
stated to be the applicant No.3. Chapter
XXXV-E, Rule 3(3) of the Allahabad
High Court Rules, 1952 framed under
Section 23 of the Act, 1971, is relevant,
which is reproduced below:

"Rule 3(3)(a).- A petition for
taking contempt of court proceedings
shall be supported by an affidavit. In
case of criminal contempt three copies of
the application and the affidavit shall
accompany the application :

Provided that if there are more
than one opposite parties, the petition
shall be accompanied by as many extra
copies as there are opposite parties.

(b) When the petitioner relies
upon any document or documents in his
possession, he shall file the same along
with the petition or a copy thereof as
annexure to affidavit.

(c) A petition made under
Section 15 (1) (b) of the Act shall also be
accompanied by the consent in writing of
the Advocate General and a copy
thereof."

17. The alleged supplementary
affidavit of the applicant No.3 dated
10.06.2020,
which
neither
bears
signature of the alleged deponent on any
page nor bears signature of the advocate
nor
signature
and
seal
of
Oath
Commissioner; is not an affidavit at all. It
is merely a waste paper. Therefore, the
matters
written
in
the
alleged
supplementary
affidavit
cannot
be
considered at all. In fact, the applicants
have
wilfully
and
deliberately
not
complied with the order of this court
dated 03.06.2020, which has been quoted
above and have attempted to mislead this
court during arguments that the aforesaid
paper is the supplementary affidavit filed
in compliance to the order dated
03.06.2020.
The
applicants
have
completely failed to prove that the
opposite parties have wilfully disobeyed
the interim order dated 27.07.2012
passed by the writ court in Kautilya
Society's
case
(supra).
Thus,
the
applicants not only abstained to file
supplementary affidavit despite order
dated 03.06.2020 but also deliberately
not even signed the aforesaid alleged
supplementary affidavit so as to escape
from the responsibility of matters
typed in it.

Suppression/
Concealment
of
facts:-

18. Perusal of the present contempt
petition filed by the applicants shows that
contempt
has
been
alleged
for
disobedience of the interim order dated
27.07.2012 in Kautilya Society's case
(supra).
The
applicants
claimed
themselves to be local residents of the
Varanasi City. Applicant No.1 claims
himself to be a journalist while the
applicant
Nos.2
and
3
claimed
themselves to be practising advocate of
District and Sessions Court, Varanasi
and
yet
they
have
conveniently
suppressed the entire material facts
relating to "Sri Kashi Vishwanath
Special Area Development Board",
constituted
under
"Sri
Kashi
Vishwanath Special Area Development
Board Act, 2018 (U.P. Act No.31 of
2018)", subsequent orders of the writ
court in Kautilya Society's case (supra)
dated
11.09.2014,
29.01.2015,
28.04.2016, the office memorandum
dated
17.02.2016
regarding
constitution of an expert committee by
the Ministry of Water Resources
pursuant to the orders of the writ
court dated 11.09.2014 and 29.01.2015,
8 All. Pradeep Kumar Srivastava & Ors. Vs. Vishal Singh, C.E.O., & Ors.
269
the minutes of the meeting of the
committee
dated
06.11.2019,
No
Objection
Certificate/
Permission
regarding
execution
of
work
in
question by the Board in terms of the
provisions of the Act and the No
Objection
Certificates/
Permissions
dated 05.12.2019 granted by Indian
National Trust for Art and Cultural
Heritage (for short 'INTACH'), dated
08.01.2020 granted by the Town and
Country
Planning
Organisation
Government of India, dated 09.01.2020
granted by the Archaeological Survey
of India, New Delhi, dated 15.01.2020
granted by the Central Ground Water
Board,
Aliganj
Lucknow,
dated
04.12.2019 granted by the Central
Public Works Department, Varanasi,
dated 27.05.2020 granted by Chief
Environmental Officer, U.P. Pollution
Control Board and dated 22.05.2020
granted
by
the
State
Level
Environment
Impact
Assessment
Authority,
Uttar
Pradesh.
The
applicants have also very conveniently
suppressed the minutes of the meeting of
the Expert Committee dated 29.02.2020
which considered all the permissions/ no
objection certificates including those
mentioned above.

Powers and functions of the Board
and Remedy under the Act, 2018:-

19. Section2(j) of the Act, 2018
defines
the
words
'Special
Development Area' which undisputedly
includes the area where development
work is being carried on by the Board.
Under Section 3 of the Act, 2018, the
Board known as "Shri Kashi Vishwanath
Special Area Development Board" has
been created to exercise the powers
conferred and perform the functions
assigned to it under this Act. The powers
and functions of the Board are defined
in Section 6 of the Act, 2018, which is
reproduced below:

"6. Power and functions of the
Board.- (1) The Chief Executive Officer
will be the executive head of the Board
who will act and pass orders in
accordance with the provisions of this
Act or the rules and regulations made
under this Act;

(2)(a) The Board shall, as soon
as may be, prepare a plan for the Special
Development Area-

(i)
The
plan
shall
define
various sectors into which such area may
for the purposes of development indicate
the land in each sector which is proposed
to be used and the stages by which any
development shall be carried out; serve
as a basic pattern of frame-work, within
which the development plans for various
sectors may be prepared;

(ii) The plan may provide for
any other matter necessary for the proper
development of such area;

(b) The Board shall prepare a
plan to rehabilitate, as may be required,
and get it approved by the State
Government in order to settle and
rehabilitate
residents,
owners
or
occupants; who are to be relocated, for
implementation of development plan for
the Special Development Area;

(c) The Board shall make and
execute a long-term plan to conserve the
heritage that falls under its jurisdiction
and shall ensure that the surrounding are
according to the Sajra Bandobast Plan
after
due
approval
of
the
State
Government.

(3) (i) Subject to the directions
given by the State Government, the
Board may acquire any building or land
270 INDIAN LAW REPORTS ALLAHABAD SERIES
through mutual negotiations, purchase,
donation, transfer, lease, rent or otherwise.
It may also acquire any land, buildings in
accordance with the provisions of law for
the time being in force and shall publish a
public
notice
in
the
local
newspaper/gazette inviting persons who
may have any claim or interest in such
property, to file their claim;

(4) The State Government may
vest any land to the Board, whether
under its control or under the control of
any local body by such terms and
conditions as it may deem fit;

(5) The Board may sell, lease,
rent or otherwise transfer whether by
auction, allotment or otherwise any land
or building belonging to the Board in the
Special Development Area with the prior
approval of the State Government in such
manner
and
on
such
terms
and
conditions as may be prescribed;

(6) The Board may on payment
of such fees and on such conditions grant
renew licence for such period as may be
prescribed by regulations and renew to
carry out any profession or trade in the
Special Development Area;

(7) For the purposes of proper
planning and development of the Special
Development Area, the Board may issue
such directions as it may consider
necessary, regarding,-

(a)
ban
on
erection
or
occupation
of
any
building
in
contravention of regulations;

(b) protection of architectural
features of the elevation or frontage of
any building;

(c) layout and alignment of
buildings on any site;

(d) restrictions and conditions
in regard to open spaces to be
maintained in and around buildings and
height and character of buildings;

(e)
number
of
residential
buildings that may be erected on any
site;

(f)
erections
of
shops,
workshops, warehouses, factories or
buildings;

(g) maintenance of height and
position of walls, fences, hedges or any
other
structure
or
architecture
constructions;

(h) maintenance of amenities;

(i) restrictions of use of any site
for a purpose other than that for which it
has been allocated;

(j) the means to be provided for
proper (i) drainage of waste water (ii)
disposal of waste, and (iii) disposal of
town refuse;

(k) the materials to be used for
external and partition walls, roofs, floors
and other parts of buildings and their
position or location or the method of
construction;

(l) the certificates necessary
and incidental to the submission of plans,
amended plans and completion and/or
occupancy certificates."

20. Section 17 of the Act, 2018
confers revisional power upon the State
Government, which is reproduced below:

"17.
Power
of
the
State
Government to call for records.- The
State Government may, at any time either
on its own motion or on application
made to it in this behalf call for any
record and may in case or an order
passed by the Board or any officer
authorised by it to perform any function
under this Act for the purpose of
satisfying itself as to the legality or
propriety of any order, pass such order
or issue such direction in relation thereto
as it may think fit:
8 All. Pradeep Kumar Srivastava & Ors. Vs. Vishal Singh, C.E.O., & Ors.
271

Provided
that
the
State
Government shall not pass an order
prejudicial
to
any
person
without
affording such person a reasonable
opportunity of being heard."

21. Thus, the work in question is
being
carried
on
by
"Shri
Kashi
Vishwanath Special Area Development
Board, Varanasi" in terms of the
provisions of the Act, 2018 and after
requisite
no
objection
certificates/
permissions
from
the
concerned
authorities and with the consent of the
expert committee constituted by the writ
court in terms of the orders passed in
Kautilya Society's case (supra).

Subsequent orders of the
Writ Court in the Public Interest
Litigation
Kautilya
Society's
case
which
were
suppressed
by
the
applicants.

22. By order dated 11.09.2014 in
Kautlya Society's case (supra), the writ
court while considering the application of
the State Government for permission to
construct four new ghats at Varanasi has
observed as under:-

"At this stage, it appears that
the Union of India is also in the process
of formulating a perspective plan for the
preservation of the intrinsic character
and heritage importance of Varanasi.
Any proposal in that regard must also
factor in the needs of millions of
devotees who gather on the ghats and
for whom even basic amenities are not
available at present.

................

................

...............

We request the Amicus Curiae
to make available a copy of this order to
the Assistant Solicitor General of India in
order to enable him to take appropriate
instructions from the Union Government
and to file an affidavit before the Court.
The State Government shall also file an
affidavit before the next date of hearing
furnishing full particulars along the lines
indicated above by the Court and any
such further relevant information as
would be of the assistance to the Court
for passing a suitable order which
would balance the need for protecting
the environment and heritage character
of the ghats with the need for providing
proper amenities and infrastructure to
devotees who use the ghats. These
affidavits shall be filed before the Court
by 17 October 2014."

23. On 29.01.2015 in Kautlya
Society's case (supra), the writ court
observed/ directed as under:

"A detailed order was passed
by this Court on 11 September 2014 in
which the Court expressed the view that
it would be appropriate for both the
Union and the State Governments to take
a joint and coordinated action in order to
apprise the Court of the steps which are
being taken to preserve the intrinsic
character and heritage importance of
Varanasi. The Court had observed that it
would be appropriate if a comprehensive
analysis and plan is entrusted to a team
of experts consisting of eminent persons
drawn from diverse branches, including
conservation
architecture,
ecology,
hydro-geology, civil engineering and
urban planning. Though the order was
passed well over three months back, we
find that there has been no concrete
272 INDIAN LAW REPORTS ALLAHABAD SERIES
action either by the Union Government
or by the State Government.

We direct the learned Assistant
Solicitor General of India and the
learned Chief Standing Counsel to take
instructions at the appropriate level of
their respective governments so that the
Court can be apprised of the views of the
Union and the State Governments in the
matter by the next date of listing.

An important issue which needs
to be considered by the Court at an
appropriate stage is the need for framing
appropriate guidelines for dealing with
cases
of
repair,
restoration
and
rehabilitation. Since this issue has been
raised during the course of hearing today,
we are of the view that it would be
appropriate if a comprehensive perspective
of the matter is formed having due regard to
the Master Development Plan and all other
applicable statutory requirements. This
aspect may be considered by the Amicus
Curiae so as to assist the Court by the next
date of listing. Based on this, it would be
necessary for the VDA to frame bye-laws
and guidelines to cover cases of restoration,
repair and rehabilitation which would be
consistent with the overall nature and
character of the Ghats."

24. In terms of the aforesaid orders
of the writ court dated 11.09.2014 and
29.01.2015, a committee of experts was
constituted vide office memorandum
dated 17.02.2016 issued by NMCG,
Ministry of Water Resources, River
Development and Ganga Rejuvenation,
Government of India. The terms of
reference
of
the
Committee
was
mentioned
in
the
aforesaid
office
memorandum, as under:

"2. Terms of Reference of the
Committee

"i. To preserve and restore the
intrinsic
character
and
heritage
importance of Varanasi Ganga Ghats
with comprehensive analysis and Plan.

ii. Identification of the historic
Ghats, assessment of their heritage
value, determining the present condition
as well as the need and extent of
restoration
of
existing
Ghats
and
proposal of new Ghats.

iii. Consider and recommend
repair of old constructions alongside the
banks of River Ganga and the need to
monitor the nature of work that may be
permitted.

iv.
Assess
the
extent
of
pollution and recommend mitigative
measures
arising
due
to
new
construction, waste disposal, throwing of
pious
materials,
and
river-surface
cleanliness along the Ghats.

v. Mechanism for monitoring
of new construction, if any that may be
permitted.

vi. Public utilities and services,
sanitation
and
hygienic
condition
alongside of the Ghats.

vii. Addressing the issue of
ecological imbalance."

25. In the order dated 28.04.2016 in
Kautlya Society's case (supra), the writ
court
considered
various
projects
including project of "Inland Water Ways
Authority of India", repair of Ghats and
construction of five new Ghats and
observed as under:

"In our view, now that a broad
based committee has been constituted by
the National Mission for Clean Ganga,
consisting both of the representatives of
the State Government as well as the
Union
Government,
it
would
be
appropriate and proper if the proposals
8 All. Pradeep Kumar Srivastava & Ors. Vs. Vishal Singh, C.E.O., & Ors.
273
for repair of the Ghats are placed before
the committee. The terms of reference of
the committee include the preservation
and restoration of the intrinsic character
and heritage importance of the Ghats on
the banks of the river at Varanasi. The
terms of reference are broad enough to
cover
proposals
for
repair
and
restoration of the Ghats.

Hence, we are of the view that
it would be but appropriate and proper
that the broad based committee which
has been constituted considers the
proposals which have been moved
before the Court. Upon the receipt of the
consent of the committee, the State
Government would be at liberty to
proceed with the work of repair. In
order to facilitate the fulfillment of the
urgent need of repairing of the Ghats
and to provide amenities to tourists,
pilgrims as well as the local residents
who visit the Ghats on a daily basis, we
would request the committee initially to
meet at least once every fortnight so as to
facilitate an early decision on the
proposal for repair. Once the requisite
consent has been granted, the committee
would be at liberty to schedule its
meetings
in
accordance
with
the
exigencies of work. To facilitate the work
of repair of the Ghats, we lift the order of
restraint. We clarify that subject to the
above, the interim order shall not stand
in the way of the carrying out of repairs
to the Ghats.

II. Insofar as the proposal for
the construction of four new Ghats is
concerned (the learned Chief Standing
Counsel has informed the Court that the
initial proposal for four Ghats has now
been enhanced to five new Ghats), we
propose to issue a direction to the effect
that this proposal should also be initially
placed before the committee constituted
on 17 February 2016 by the office
memorandum referred to above. This
application which has been submitted
before the Court for construction of new
Ghats and for the grant of permission by
the Court would be taken up after the
committee has an opportunity to consider
the proposal and to submit a report in
regard
thereto
containing
its
observations
and
findings.
The
committee would be at liberty to
consider
the
matter
from
all
its
perspectives
and
suggest
such
environmental and other safeguards as
may be necessary if the proposal is
found to be in order. We would request
the committee to finalize its report on
these aspects preferably within a period
of two months from today. We direct that
the representative of INTACH be also
associated
with
the
work
of
the
committee."

Legislation subsequent to the
orders in the Public Interest Litigation
(Kautilya
Society's
case)
suppressed by the Applicants

26. The Act, 2018 was enacted to
create, formulate, implement, regulate
and maintain the special area under its
jurisdiction
for
developing
and
maintaining
the
culture,
spiritual,
mythological
and
archaeological
aesthetics in such area to promote
tourism in consonance with the rich
cultural heritage thereof.