# Suresh Tiwari v. T. Venkatesh, Principal Secretary, Irrigation Department, Lucknow & Anr

- **Citation:** (2020) 2 ILRA 1275
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-04
- **Case number:** Contempt No. 1064 of 2019
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-tiwari-v-t-venkatesh-principal-secretary-irrigation-department-lucknow-45656
- **Pages:** 7

## Headnote

A. Contempt of Courts Act, 1971 -
section 2(b) - civil contempt - an act
of contempt to be made out against
the contemnor - there has to be a
deliberate and willful disobedience
and defiance of the order passed by a
Court of law - the directions which
are alleged to have been violated
should be unambiguous. (Para-15)

The writ Court directed the respondents to
consider the applicant for notional promotion
under service rules with all consequential
benefits
strictly
in
accordance
with
the
directions issued by this Court in Writ Petition.
(Para-2)

HELD:- Once admittedly the respondents, to
the best of their ability have considered the
case of the applicant and have passed an order
and the said order is not to the liking of the
applicant,
it
cannot
be
said
that
the
respondents run in contempt to the order
passed by the writ Court - There is no
deliberate or wilful disobedience of the
judgement and order passed by the writ Court.
(Para-9,16)
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
Contempt petition is dismissed. (E-7)

List of cases cited:-

## Text

2 All. Suresh Tiwari Vs. T. Venkatesh, Principal Secretary, Irrigation Department, Lucknow & Anr.
1275
record the same. The issue thus arises as
to whether the order stands categorical to
lend credence to the answers of the
respondent or the same supports the
contention as raised by the applicants
herein - Incidentally, since the appeal is
pending in this Court for adjudication, and
since the matter under consideration have
no bearing on such adjudication so far as
the merits of the dispute are concerned, we
are not expressing any opinion in the
matter neither we are required to express
opinion
thereon,
excepting
however,
recording that probabilities of the situation
may also warrant a finding, in favour of
the interpretation of the applicant. The
doubt persists and as such in any event the
respondents being the alleged contemners
are entitled to have the benefit or
advantage of such a doubt having regard
to the nature of the proceeding as noticed
herein before more fully."

9. What comes out from a perusal of
the aforesaid judgements is that for an act of
contempt to be made out against the
contemnor, there has to be a deliberate and
wilfull disobedience and defiance of the
order passed by a Court of law, the
directions which are alleged to have been
violated should be unambiguous and passing
of an order in purported compliance of the
order passed by a Court of law would give
rise to a fresh cause of action.

10. Keeping in view the aforesaid
discussions and the law in this regard, it
cannot be said that there is any deliberate or
wilful disobedience of the judgement and
order dated 18.12.2018 passed by the writ
Court.

11. Accordingly, the contempt petition
is dismissed.
----------
(2020)02ILR A1275

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.02.2020

BEFORE
THE HON'BLE ABDUL MOIN, J.

Contempt No. 1064 of 2019

Suresh Tiwari ...Applicant
Versus
T.
Venkatesh,
Principal
Secretary,
Irrigation Department, Lucknow & Anr.
 ...Opposite Parties

Counsel for the Applicant:
Apoorva Tewari, Paavan Awasthi

Counsel for the Opposite Parties:
-----

A. Contempt of Courts Act, 1971 -
section 2(b) - civil contempt - an act
of contempt to be made out against
the contemnor - there has to be a
deliberate and willful disobedience
and defiance of the order passed by a
Court of law - the directions which
are alleged to have been violated
should be unambiguous. (Para-15)

The writ Court directed the respondents to
consider the applicant for notional promotion
under service rules with all consequential
benefits
strictly
in
accordance
with
the
directions issued by this Court in Writ Petition.
(Para-2)

HELD:- Once admittedly the respondents, to
the best of their ability have considered the
case of the applicant and have passed an order
and the said order is not to the liking of the
applicant,
it
cannot
be
said
that
the
respondents run in contempt to the order
passed by the writ Court - There is no
deliberate or wilful disobedience of the
judgement and order passed by the writ Court.
(Para-9,16)
1276 INDIAN LAW REPORTS ALLAHABAD SERIES
Contempt petition is dismissed. (E-7)

List of cases cited:-

1. Debabrata Bandopadbyay and others Vs.
State of West Bengal and another , AIR 1969
SC 189

2. B.K. Kar Vs.The Hon'ble the Chief Justice
and his companion Justices of the Orissa High
Court and others , 1961 SC 1367

3. Niaz Mohammad and others Vs. State of
Haryana and others , 1994 (6) SCC 332

4. Mrityunjoy Das and another Vs. Sayed
Hasibur Rahaman and others , 2002 (3) SCC
739

(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Sri Apoorva Tewari, learned
counsel appearing for the applicant and Sri
Manjeev Shukla, learned Additional Chief
Standing
counsel
appearing
for
the
respondent-contemnor.

2. The present contempt petition
has been filed alleging non compliance
of the judgment and order dated
16.02.2018 passed by the writ Court in
Writ Petition No. 731 (SB) of 2013
Inre; Suresh Tiwari Vs. State of U.P
and Ors. The writ Court while allowing
the petition had quashed two orders
dated 19.02.2013 and 08.09.2016 and
the
respondents
were
directed
to
consider the applicant for notional
promotion under service rules with all
consequential
benefits
strictly
in
accordance with the directions issued
by this Court in Writ Petition No. 1502
(SB) of 2010 vide judgment and order
dated 24.01.2011. Incidentally, the
judgment and order dated 24.1.2011
has been reproduced in the judgment of
the writ Court dated 16.02.2018 itself.

3. In purported compliance to the
judgment of this Court, the respondents
have proceeded to pass the order dated
29.03.2019, a copy of which is annexure 2
to the petition whereby the case of the
applicant
has
been
rejected.
Being
aggrieved with the said order instead of
filing a fresh petition, the present contempt
petition has been filed.

4. This Court had issued notice to the
respondents on 09.05.2019. Thereafter, the
respondents have filed the short counter
affidavit on behalf of respondent no. 1 to
which a rejoinder affidavit has also been
filed.

5. Sri Apoorva Tiwari, learned
counsel for the applicant contends that the
order passed by the writ Court was
categoric i.e of considering the case of the
applicant for notional promotion under
service rules strictly in accordance with
the earlier direction of this Court dated
24.01.2011. It is contended that the
respondents while proceeding to reject the
claim of the applicant for promotion as
Engineer-In-Chief have patently erred in
law and have gone beyond the judgment of
the writ Court inasmuch as they have also
considered the Government order dated
23.08.1997 which had also been placed
before this Court while filing the counter
affidavit in the earlier petition and thus it
would be deemed that the writ Court has
considered all aspects of the matter and
thereafter issued a positive direction for
consideration of the case for notional
promotion in accordance with service rules
and as such, the respondents could not
have rejected the claim of the applicant
rather should have promoted the applicant
as Engineer-In-Chief and in not doing so
and rejecting the case of the applicant
through the order dated 29.03.2019, the
2 All. Suresh Tiwari Vs. T. Venkatesh, Principal Secretary, Irrigation Department, Lucknow & Anr.
1277
respondents run in contempt of the order
passed by the writ Court. It is also
contended that once the said grounds as
find place in the order dated 29.03.2019
had already been taken by the respondents
while rejecting the case of the applicant
through the orders dated 19.02.2013 and
08.09.2016 and both the said orders have
been quashed by the writ Court, as such it
was no longer for the respondents to
reiterate the said grounds in the order
dated 29.03.2019.

6. On the other hand, Sri Manjeev
Shukla, learned Additional Chief Standing
counsel on the basis of averments contained in
the counter affidavit submits that in purported
compliance to the directions issued by the writ
Court, the respondents have proceeded to
consider the case of the applicant for
promotion as Engineer-In-Chief but taking into
consideration the Government order dated
23.08.1997 and certain other grounds, the case
of the applicant has been rejected. It is
contended that writ Court has categorically
directed the respondents to consider the
applicant for notional promotion under service
rules. It is said that the direction of the writ
Court was for "Consideration" in accordance
with the service rules and once the
Government order dated 23.08.1997 which
had been considered in the order of rejection of
the claim of the applicant, has been considered
which does not provide for any such notional
promotion more particularly when no junior to
the applicant has been promoted to the said
post, consequently the order dated 29.03.2019
cannot be said to be in contempt of the
judgment of this Court.

7. Heard learned counsel appearing for
the contesting parties and perused the records.

8. The writ Court vide judgment and
order dated 16.02.2018 had allowed the
petition after quashing the rejection orders
dated 19.02.2013 and 08.09.2016 and the
respondents were directed to consider the
applicant for notional promotion under
the
service
rules.
Admittedly,
the
respondents have considered the applicant
for promotion but finding that the
Government order dated 23.08.1997 which
provides that in the case of notional
promotions, the same can only be granted
where any junior to the said person who is
being considered for notional promotion
has been promoted and it was found that
no person junior to the applicant had been
promoted, consequently the claim of the
applicant has been rejected. Once the order
of
the
writ
Court
was
only
for
consideration in accordance with the
service
rules
and
admittedly
the
Government order dated 23.08.1997 places
a condition for promotion on notional
basis i.e a junior to the person, whose case
for promotion is to be considered, having
been promoted and admittedly no junior to
the applicant having been promoted,
consequently it cannot be said that because
the applicant has not been promoted as
Engineer-In-Chief, as such the respondents
run in contempt of the order passed by the
writ Court.

9. Another aspect of the matter
would
be
that
the
respondents
in
compliance to the order passed by the writ
Court have considered the case of the
applicant and have rejected the same. In
order to make out the case of contempt
there has to be deliberate and willful
disobedience of the order passed by the
writ
Court.
Once
admittedly
the
respondents, to the best of their ability
have considered the case of the applicant
and have passed an order and the said
order is not to the liking of the applicant, it
cannot be said that the respondents run in
1278 INDIAN LAW REPORTS ALLAHABAD SERIES
contempt to the order passed by the writ
Court.

10. In this regard, the Court may
consider the law laid down by the Hon'ble
Supreme Court per which there has to be
deliberate and wilful disobedience by the
contemnor in order to make out a case for
contempt.

11. The Hon'ble Supreme Court in
the case of Debabrata Bandopadbyay
and others versus State of West Bengal
and another reported in AIR 1969 SC
189 has held as under :-

"9. A question whether there is
contempt of court or not is a serious one.
The court is both the accuser as well as
the judge of the accusation. It behoves the
court to act with as great circumspection
as possible making all allowances for
errors of judgment and difficulties arising
from inveterate practices in courts and
tribunals. It is only when a clear case of
contumacious conduct not explainable
otherwise, arises that the contemner must
be punished. It must be realised that our
system of courts often results in delay of
one kind or another. The remedy for it is
reform and punishment departmentally.
Punishment under the law of contempt is
called for when the lapse is deliberate and
in disregard of one's duty and in defiance
of authority. To take action in an unclear
case is to make the law of contempt do
duty for other measures and is not to be
encouraged."

12. The Hon'ble Supreme Court in
the case of B.K. Kar versus The Hon'ble
the Chief Justice and his companion
Justices of the Orissa High Court and
others reported in AIR 1961 SC 1367 has
held as under :-

"7. Before a subordinate court
can be found guilty of disobeying the order
of the superior court and thus to have
committed contempt of court, it is
necessary to show that the disobedience
was intentional. .................. There may
perhaps be a case where an order
disobeyed could be reasonably construed
in two ways and the subordinate court
construed it in one of those ways but in a
way different from that intended by the
superior court. Surely, it cannot be said
that disobedience of the order by the
subordinate court was contempt of the
superior court."

13. The Hon'ble Supreme Court in
the case of Niaz Mohammad and others
versus State of Haryana and others
reported in 1994 (6) SCC 332 has held as
under :-

"9 . Section 2(b) of the Contempt
of Court Act, 1971 (hereinafter referred to
as 'the Act') defines "Civil Contempt" to
mean
"willful
disobedience
to
any
judgment, decree, direction, order, writ, or
other process of a court...". Where the
contempt consists in failure to comply with
or carry out an order of the court made in
favour of the 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 CPC. The
party in whose favour an order has been
passed, is entitled to the benefit of such
order. The Court while considering the
issue as to whether the alleged contemner
should be punished for not having
complied and carried out the direction of
2 All. Suresh Tiwari Vs. T. Venkatesh, Principal Secretary, Irrigation Department, Lucknow & Anr.
1279
the Court, has to take into consideration
all facts and circumstances of a particular
case. That is why the framers of the Act
while defining civil contempt, have said
that it must be willful disobedience to any
judgment, decree, direction, order, writ or
other process of a court. Before a
contemner is punished for non compliance
of the direction of a court the Court must
not
only
be
satisfied
about
the
disobedience of any judgment, decree,
direction or writ but should also be
satisfied that such disobedience was
willful and intentional. The Civil Court
while executing a decree against the
judgment debtor is not concerned and
bothered whether the disobedience to any
judgment, or decree, was willful. Once a
decree has been passed it is the duty of the
court to execute the decree whatever may
be
consequences
thereof.
But
wile
examining the grievance of the person who
has invoked the jurisdiction of the Court to
initiate the proceeding for contempt for
disobedience of its order, before any such
contemner is held guilty and punished, the
Court has to record a finding that such
disobedience was willful and intentional."

14. The Hon'ble Supreme Court in
the case of Mrityunjoy Das and another
versus Sayed Hasibur Rahaman and
others reported in 2002 (3) SCC 739 has
held as under :-

"13. Before however, proceeding
with the matter any further, be it noted that
exercise of powers under the Contempt of
Courts Act shall have to be rather cautious
and use of it rather sparingly after
addressing itself to the true effect of the
contemptuous conduct. The Court must
otherwise come to a conclusion that the
conduct complained of tentamounts to
obstruction of justice which if allowed,
would even permeate in our society (vide
Murray & Co. v. Ashok Kr. Newatia &
Anr.). This is a special jurisdiction
conferred on to the law courts to punish an
offender for his contemptuous conduct or
obstruction to the majesty of law. It is in
this context that the observations of the
this Court in Murray's case (supra) in
which one of us (Banerjee, J.) was party
needs to be noticed.

"The
purpose
of
contempt
jurisdiction is to uphold the majesty and
dignity of the Courts of law since the
image of such a majesty in the minds of the
people cannot be led to be distorted. The
respect and authority commanded by
Courts of Law are the greatest guarantee
to an ordinary citizen and the entire
democratic fabric of the society will
crumble down if the respect for the
judiciary is undermined. It is true that the
judiciary will be judged by the people for
what the judiciary does, but in the event of
any indulgence which even can remotely
be termed to affect the majesty of law, the
society is bound to lose confidence and
faith in the judiciary and the law courts
thus, would forfeit the trust and confidence
of the people in general."

14. The other aspect of the
matter ought also to be noticed at this
juncture viz., the burden and standard of
proof. The common English phrase "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 extra-ordinary jurisdiction of the Court
in terms of the provisions of the Contempt
of Court Act is quasi criminal, and as
such, the standard of proof required is that
of a criminal proceeding and the breach
shall have to be established beyond
reasonable doubt. The observations of
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
Lord Denning in Re Bramblevale 1969 3
All ER 1062 lend support to the aforesaid.
Lord Denning in Re Bramblevale stated:

"A contempt of court is an
offence of a criminal character. A man
may be sent to prison for it,. It must be
satisfactorily
proved.
To
use
the
timehonoured phrase, it must be proved
beyond all reasonable doubt. It is not
proved by showing that, when the man was
asked about it, he told lies. There must be
some further evidence to incriminate him.
Once some evidence is given, then his lies
can be thrown into the scale against him.
But there must be some other evidence....
Where there are two equally consistent
possibilities open to the Court, it is not
right to hold that the offence is proved
beyond reasonable doubt."

15.
In
this
context,
the
observations of the Calcutta High Court in
Archana Guha v. Ranjit Guha Neogi 1989
(II) CHN 252 in which one of us was a
party (Banerjee, J.) seem to be rather
apposite and we do lend credence to the
same and thus record our concurrence
therewith.

16. In The Aligarh Municipal
Board and Others v. Ekka Tonga Mazdoor
Union and Others MANU/SC/0075/1970 :
1970CriL J1520 , this Court in no
uncertain term stated that in order to bring
home a charge of contempt of court for
disobeying orders of Courts, those who
assert that the alleged contemners had
knowledge of the order must prove this
fact beyond reasonable doubt. This Court
went on to observe that in case of doubt,
the benefit ought to go to the person
charged.

17. In a similar vein in V.G.
Nigam and others v. Kedar Nath Gupta
and
another
MANU/SC/0419/1992
:
1992CriL J3576 , this Court stated that it
would be rather hazardous to impose
sentence for contempt on the authorities in
exercise of contempt jurisdiction on mere
probabilities.

18. Having discussed the law on
the subject, let us thus at this juncture
analyse as to whether in fact, the contempt
alleged to have been committed by the
alleged contemners, can said to have been
established firmly without there being any
element of doubt involved in the matter
and that the Court would not be acting on
mere probabilities having however, due
regard to the nature of jurisdiction being
quasi criminal conferred on to the law
courts. Admittedly, this Court directed
maintenance of status quo with the
following words - "the members of the
petitioner-Sangha who were before the
High Court in the writ petition out of
which the present proceedings arise". And
it is on this score the applicant contended
categorically that the intent of the Court to
include all the members presenting the
Petition before this Court whereas for the
Respondent Mr. Ray contended that the
same is restricted to the members who
filed the writ petition before the High
Court which culminated in the initiation of
proceeding before this Court. The Counter
affidavit filed by the Respondents also
record the same. The issue thus arises as
to whether the order stands categorical to
lend credence to the answers of the
respondent or the same supports the
contention as raised by the applicants
herein - Incidentally, since the appeal is
pending in this Court for adjudication, and
since the matter under consideration have
no bearing on such adjudication so far as
the merits of the dispute are concerned, we
are not expressing any opinion in the
matter neither we are required to express
opinion
thereon,
excepting
however,
recording that probabilities of the situation
may also warrant a finding, in favour of
2 All. Mayur Farm Pvt. Ltd. Vs. Alok Tandon, Chairman N.O.I.D.A. & Ors.
1281
the interpretation of the applicant. The
doubt persists and as such in any event the
respondents being the alleged contemners
are entitled to have the benefit or
advantage of such a doubt having regard
to the nature of the proceeding as noticed
herein before more fully."

15. What comes out from a perusal
of the aforesaid judgements is that for an
act of contempt to be made out against the
contemnor, there has to be a deliberate and
wilfull disobedience and defiance of the
order passed by a Court of law and that the
directions which are alleged to have been
violated should be unambiguous.

16. Keeping in view the aforesaid
discussion and the law in this regard, it
cannot be said that there is any deliberate
or wilful disobedience of the judgement
and order dated 16.2.2018 passed by the
writ Court.

17. Accordingly, the contempt
petition is dismissed.

18. However, it would be open to the
applicant to challenge the order dated
29.03.2019, in case he is so aggrieved,
before the appropriate Court in the
appropriate proceedings.
----------
(2020)02ILR A1281

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.01.2020

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Contempt Application (Civil) No. 5162 of 2019

Mayur Farm Pvt. Ltd. ...Applicant
Versus
Alok Tandon, Chairman N.O.I.D.A. & Ors
 ...Opposite Parties

Counsel for the Applicant:
Sri
Arvind
Srivastava,
Sri
Arvind
Srivastava, Sri Sarveshwari Prasad, Sri
Rishabh Kumar, Sri Yanendra Pandey, Sri
K.N. Tripathi

Counsel for the Opposite Parties:
Sri Kaushalendra Nath Singh, Sri M.C.
Chaturvedi

A. Contempt of Courts Act, 1971 - section
2(b) - civil contempt - contempt
jurisdiction
- limited to punish the
contemnor, not for disobedience of the
order, but upon returning a finding that
the
disobedience
is
wilful
-
Mere
disobedience is not sufficient unless it is
shown and proved that the disobedience
is wilful, deliberate and intentional -
casual, accidental or unintentional acts of
disobedience under the circumstances
which
negate
any
suggestions
of
contumacy - may amount to a contempt
in theory only - that does not render the
contemnor liable to punishment - To hold
somebody guilty of contempt of Court,
the concerned person must have wilfully
disobeyed
judgment,
decree
etc.
or
should have wilfully committed breach of
an undertaking given to a Court -
Petition not maintainable.(Para-13,18)

Contempt petition filed under the Contempt of
Courts Act, 1971, for punishing the opposite
parties,
including,
the
Chairman/Chief
Executive
Officer,
New
Okhala
Industrial
Development Authority (Noida), for flouting the
order passed in First Appeal. (Para-2)

HELD:- NOIDA satisfied the decree, though
not to the satisfaction of the applicant - NOIDA
authorities cannot be punished - disobedience,
if any, not intentional and wilful - matter relates
to infringement of a decree or decretal order, it
is not expedient to invoke and exercise
contempt jurisdiction, in essence, as a mode
for executing the decree - remedy available to
the applicant is to take recourse in execution