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TMI Blog1994 (10) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... otu contempt against the then Chief Minister of the State of Uttar Pradesh and its officers in relation to the happening of the 6th December, 1992 were initiated those are pending and shall be dealt with independently. 2. The subject matter of the present contempt proceedings, however, arises out of certain antecedent events that occurred during the month of July 1992 in relation to an extent of 2.77 acres of land in Ayodhya which was acquired by the State Government pursuant to a notification dated 7th October, 1991, under Section 4 of the Land Acquisition Act, 1894. The acquisition was ostensibly for the purpose of developing the acquired land as an amenity for pilgrims at Ayodhya. The acquisition proceedings were challenged both before the High Court and this Court. In those proceedings, three interlocutory orders came to be made - two by the High Court and one by this Court. In order to put the complaint of wilful disobedience of these orders by the State of Uttar Pradesh and its Chief Minister, Sri Kalyan Singh, it is necessary to advert to two of these orders. 3. On 15th November, 1991 in W.P. No. 1000 of 1991 this Court made the following order : The petitioners have app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avit. 3 Days time is allowed for filling rejoinder to the petitioner the list immediately thereafter (.) k In the meantime the opposite parties are restrained from raising any construction on the land (.) If there is any necessity for doing something on the land for its use, prior permission from the Court would be obtained (.) 6. The grievance in these contempt proceedings is that these orders have been deliberately and wilfully flouted and disobeyed by the State of Uttar Pradesh. Though the petitions for contempt which were lodged in the months of February and March 1992 respectively, merely alleged there were demolitions of certain structures in violation of the interdiction in that behalf contained in the order of this Court dated 15th November, 1991. However, later, on as events developed, certain subsequent events were brought to the notice of the Court by affidavits which came to be filed pointing out that large scale construction work of a permanent nature was carried out on the land in utter disregard of the orders of this Court. By order dated 5th August, 1992 this Court while recording the finding that the alleged demolitions did not strictly fall within the interdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n support of the allegations. 3. We think that this prayer is reasonable and the respondents should have such an opportunity. They shall meet the case as presented in the affidavits filed by the petitioners in the month of July, 1992 in the pending contempt petitions in regard to the allegations of continued violation of the orders of the Courts, said to have occurred during the month of July, 1992. Thereafter, counter-affidavits were filed by the officers of the U.P. Government Sri Kalyan Singh, however, did not choose to file an affidavit of his own. 9. The gravamen of the charge in these contempt petitions is that Sri Kalyan Singh the then Chief Minister of the State, in view of his ideological and political affinity with the Bharatiya Janatha Party and the Vishwa Hindu Parishad and their commitment to the building of Sri Ram Temple, deliberately encouraged and permitted the grosses violation of the Courts' orders. 10. The defence in substance, is that the constructions were initially of the nature of a 'levelling operations' done by the State Government for enabling the parikrama facilities for the pilgrims. However later the large congregation of Sadhus who ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oomi-Babri Masjid Structure' which was situate in the immediate vicinity and for whose protection the Government stood committed. In view of these conflicting considerations and of the risks involved in the operations Government felt compelled to abstain from any coercive steps to prevent the constructions by the pilgrims. We shall later advert to the merit sand bona fides of this version. Suffice it to say here that at no point of time did the Chief Minister seek before Court to be absolved of his undertaking in view of these alleged conditions. They are now put forward as a defence in the contempt action. 13. But it is necessary to say that in a Government of laws and not of men the Executive Branch of Government bears a grave responsibility for upholding and obeying judicial orders. It is perhaps worthwhile recalling what the Supreme Court of United States observed in William G. Cooper, Member of the Board of Directors of the Little Rock v. John Aaron 358 US.1 where, in his concurring opinion Justice Frankfurter said: The use of force to further obedience to law is in any event a last resort and one not congenial to the spirit of our Nation. Violent resistance to law cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person. 15. In these formative years of our nation building, it is more important than even to recognise that in a pluralist society law is the greatest and the only integrating factor. Respect for law and its institutions is the only assurance that can hold a pluralist nation together. Any attempt to achieve solutions of controversies, however, ideologically and emotionally surcharged, not on the basis of law and through judicial institutions but on the strength of number will subvert the fundamental values of our chosen political organisation. It will demolish public faith in the accepted constitutional institutions and weaken people's resolve to solve issues by peaceful means. It will destroy respect for the Rule of Law and the authority of Courts and seek to place individual authority and strength of number above the wisdom of law. This is courting disaster, fratricidal wars, civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court, responsibility for which had been entrusted to us. They informed that at 5 PM on 17.7.1992 decision was taken in the meeting of about 50 saints at the Digamber Akhara that construction will not be stopped. In view of this decision construction could not be stopped and they suggested that talks may be held with members of Temple Renovation Committee. 20. This Court constituted a committee consisting of Sri S. Rai, Registrar General, Supreme Court; Professor K.K. Nayar, III Delhi; and Professor Arvind Krishan, School of Planning and Architecture, New Delhi. In the report of the Committee, the nature and the extent of construction is described thus:- The area built-up can be visualised as 5 north-south strips arranged from the east to the west (for the purpose of computation and reference, as shown in Appendix A2-1. Areas and dimensions of the first four strips increase step by step from one another. The fifth strip is cut back both in are and dimension. There are 3 layers of concrete in the structure (Annexure Al-2). The first layer is about 0.62 m. thick and it covers the full area of 1060 sq.m. except for a circular opening of 7.1 m. diameter in the center of the 4th s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on by a congregation of Sadhus at the site and not by the State Govt. and despite Government's efforts. Apart from a glib suggestion that any attempt to prevent the work would have created a violent situation endangering the safety of the 'Ram Janam Bhoomi Babri Masjid structure' itself, nothing is indicated as to what was sought to be done at all to prevent constructional material coming in. There is no mention in any of the affidavits of any of the officers as to what reasonable measures the Government took to prevent the inflow of constructional material such as large quantities of cement, mortar, sand, constructional equipment, water-tankers etc. that were necessary for the work. The report of the Expert Committee has indicated that constructional machinery was indispensable having regard to the nature and magnitude of the work carried out. While it is understandable that the prevention of the gathering of Sadhus might have created some resentment, it is ununderstandable why large quantities of building materials were allowed to be brought on the land unless it be - and that mast be the reasonable presumption - that the Government itself was not too anxious to pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n England where the maxim 'Crown can do no wrong' has had its influence, a distinction is made between the Crown as such and the Executive. 26. In a recent pronouncement of far reaching impact the House of Lords in 'In re M. v. Home Office' 1994 (1) AC 377, observed (as per Lord Templeman) :- My Lords Parliament makes the law, the executive carry the law into effect and judiciary enforce the law. The expression "the Crown" has two meanings: namely the monarch and the executive. In the 17th century Parliament established its supremacy over the Crown as monarch, over the executive and over the judiciary. Parliamentary supremacy over the Crown as monarch stems from the fact that the monarch must accept the advice of a Prime Minister who is supported by a majority of Parliament. Parliamentary supremacy over the Crown as executive stems from the fact that Parliament maintains in office the Prime Minister who appoints the ministers in charge of the executive. Parliamentary supremacy over the judiciary is only exercisable by statute. The judiciary enforce the law against individuals, against institutions and against the executive. The judges cannot enforce the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted by the Home Office, to be returned to this country. Nolan L.J., at p. 311, considered that the fact that proceedings for contempt are "essentially personal and punitive" meant that it was not open to a court, as a matter of law, to make a finding of contempt against the Home Office or the Home Secretary. While contempt proceedings usually have these characteristics and contempt proceedings against a government department or a minister in an official capacity would not be either personal or punitive (it would clearly not be appropriate to fine or sequestrate the assets of the Crown or a government department or an officer of the Crown acting in his official capacity), this does not mean that a finding of contempt against a government department or minister would be pointless. The very fact of making such a finding would vindicate the requirements of justice. In addition an order for costs could be made to underline the significance of a contempt. A purpose of the court's powers to make findings of contempt is to ensure that the orders of the Court are obeyed. This jurisdiction is required that the orders of the Court are obeyed. This jurisdiction is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be a distress warrant directed against the properties of the Government or the Corporation. (emphasis supplied) 30. The State Government is, therefore, liable in contempt. A Minister or Officer of Government is also either in his official capacity or if there is a personal element contributing to contempt, in his personal capacity, liable in contempt. 31. We find that the undertaking given by Sri Kalyan Singh was both in his personal capacity and on behalf of his Government. There has been a flagrant breach of that undertaking. There has been willful disobedience of the order. 32. It is unhappy that a leader of a political party and Chief Minister has to be convicted of an offence of Contempt of Court. But it has to be done to uphold the majesty of law. We convict him of the offence of contempt of Court. Since the contempt raises larger issues which affect the very foundation of the secular fabric of our nation, we also sentence him to a token imprisonment of one day. We also sentence him to pay a fine of ₹ 2,000/-. The fine shall be paid within a period of two months. For the sentence of imprisonment a warrant will issue. 33. The contempt petitions are partly dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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