MUHAMMAD ROSHAN ESSANI, J.--By this application under section 3/4 of the Contempt of Court Act, the petitioner Abdul Majeed has sought action under Contempt of Court against the alleged contemner Abdul Malik Sial, Rationing Controller, Hyderabad, by auctioning his entire property and also by putting him in civil prison.
2. The brief facts, as disclosed by the petitioner in his affidavit, are that he filed a petition in the year 1997 being C.P. No.D-436/97 against the respondents for causing victimization and unnecessary harassm ent to the petitioner. After the service of notice. the respondent No.3 appeared in Court.
The State Counsel placed on record a letter dated 29-9-1997. issued by the respondent No.l to the respondent No.2. In the light of the aforesaid letter the respondent No.3 made a statement that the allocation of quota to various Chakkis (Grinding Flour Mill) was made in a fair and transparent manner after consultation with the representatives of the Chakki (Grinding F3bur Mill) owners. The respondent No.3 made a statement in Court that he will act according to the spirit of the above letter and allocate quota equitably. He further stated that supply of wheat to the petitioner has already been restored.
3. In the light of the above statement, advocate of the petitioner stated that he was satisfied and he did not press the petition, which was disposed of. It is averred in the affidavit that after the order dated 21-10-1998, passed by this Court, only 100 bags of wheat were supplied by the respondent No.3 to the petitioner and thereafter the supply of wheat was stopped for no fault of the petitioner.
Therefore, on 17-11-1998 a legal notice was served by the petitioner upon the respondent No.3 for non-supply of quota in the similar manner and according to similar procedure as it was supplied to other Chakkis (Grinding Flour Mill). He was also informed that his act amounted to contempt of Court.
4. The respondent/alleged contemner instead of mending his ways and rectifying his acts and deeds, issued a show-cause notice to the petitioner on 23-11-1999 and on 11-12-1998, he cancelled the licence of the petitioner, although the petitioner personally appeared before the respondent No.3 and furnished his explanation with regard to the charges levelled against him in the notice but in spite of the explanation furnished by the petitioner the respondent. No.3 did not pay any heed to it. The petitioner, many a time, visited respondent No:3 but he was insulted and was asked to exhaust his remedy before the Court for the supply of wheat.
5.Finding no other way-out and due to contemptuous language used by the respondent No.3 against the Court, the petitioner filed application under section 3/4 of the Contempt of Court Act, 1976 on 14-1-1994, in pursuance of the notice issued by this Court the respondent/alleged contemner appeared before this Court: He did not engage any counsel but he A was represented by the State Counsel, which is not permissible under the law in the contempt proceedings.
6. It is further averred 'that the respondent/alleged contemner filed his parawise comments and twisted contempt case into alleged non-compliance of certain orders and he also levelled false charges against the petitioner.
7. On 9-2-1999 this Court while disposing of the aforesaid application restored the licence of the petitioner, which was illegally cancelled by the respondent No.3/contemner. The contemner restored the licence after one month from the order of this Court mentioning 13-2-1999 as the date of its restoration in the office order fraudulently. After the restoration of licence, the respondent No.3/contemner did not supply a single bag of wheat to the petitioner till the date of filing of the present application. The order of this Court was thus flouted by the respondent No.3/contemner malafidely. It was, therefore, urged that he may be proceeded for the contempt of Court.
8. The respondent No.3/alleged contemner filed his comments with the statement of Additional Advocate-General, Sindh. The petitioner filed his counter-affidavit whereby the assertions made in the statement were denied and the facts mentioned in the contempt application stated hereinabove were reiterated. The respondent No.3/alleged contemner filed his affidavit-in-- rejoinder to the counter-affidavit of the petitioner alongwith the statement of Additional Advocate- General, Sindh.
9. In the counter-affidavit the respondent No.3/contemner has denied the allegations levelled against him and he stated that no violation of this Court's order dated 9-2-1999 was made by him.
In compliance of the order of this Court dated 21-10-1998, 100 bags of wheat were supplied to the petitioner on 2-11-1999 and even in the past no supply was stopped, details whereof have been given in the counter-affidavit. He further stated that the Additional Advocate General was competent to represent the Government as the petitioner had violated the orders and acted in contravention of the rules framed by the Government. The contents of Government letter .dated 31- 10-1998 were correct one and it could be verified from the Government of Sindh, Food Department, Karachi, in regard to the correctness of the letter dated 31-10-1998. The photocopies whereof were filed as Annexures 'B' to 'B/4'. It was stated that the quota of the petitioner was withheld due to .the fault of the petitioner and it was not stopped as per the orders of the Deputy Director Food.
10. The petitioner failed to prove from the electricity consumption bills and non-maintenance of accounts that the wheat supplied to him at the subsidized rate was grinded at his Chakki (Grinding Flour Mill). In this context, the respondent No.3/alleged contemner has also filed a tabular statement.
11. The respondent No.3/alleged contemner further stated that he did not commit any contempt of this Court but he complied with the orders of this Court as well as the Government in its letter and spirit. He stated that the petitioner has filed the present application malafidely and dishonestly by suppressing the true and material facts.
12. We have heard Syed Ali Ahmed Taqvi, learned counsel for the petitioner and the respondent No.3/alleged contemner in person.
13. The perusal of record shows that on 21-10-1998 C.P. No.436/1997, filed by the petitioner, was disposed of by this Court and following order was passed,:-- "Mr. Ahsanul Haq Siddiqui, for the Petitioner. Mr. Mian Khan Malak, Additional Advocate-General, Sindh; alongwith Abdul Malik Abbasi, Rationing Controller, Hyderabad.
The learned Addl. A.-G. has placed on record a letter dated 29-9--1997 from the. respondent No. I , addressed to the respondent No. 2, expressly stating as under:-- 'The main objective of the Department is to ensure availability of wheat flour at reasonable rate either through old or new units and not to patronise any class. The Regional Office should, therefore, mainly concentrate on this, and see that all the units are accommodated in just and fair manner.'
The respondent No.3, who is present in Court states that allocation to various Chakkis is made in a fair and transparent manner after consulting the representatives of Chakki owners and assures that the respondents will act according to the spirit of the above letter and allocate quota equitably. He further states that supply to the petitioner has already been reserved.
Mr. Ahsanul Haq Siddiqui is satisfied with the above undertaking and does not press the petition, which is disposed of in above terms.
(Sd.)
Sabihuddin Ahmed, Judge.
(Sd.)
M. Shaiq Usmani, Judge."
14. During the pendency of the petition, 200 bags of wheat were supplied to the petitioner in the month of October, 1999 and after the announcement of judgment reproduced hereinabove further 100 bags were supplied to the petitioner on 2-11-1998 vide Office Release Order No.43/004291 dated 2-11-1998. The respondents received a letter bearing NO.SOF(1)28(230)/98 dated 18-12-1998 from Government, contents whereof are reproduced hereinbelow in extenso:-- "The Director Food, Sindh, Karachi.
Subject: RELEASE OF WHEAT TO CHAKKIS OF HYDERABAD DISTRICT.
In view of the report given by the Committee, following decisions have been taken which should be implemented with immediate effect and compliance report on regular basis.
(1) Henceforth wheat to Chakkis be released on the basis of functioning stones only.
(2) All efforts be made to avoid misuse of Government subsidised wheat and its grinding be tied- up with electric units consumed.
(Sd.)
(GHULAM ABBAS DETHO), SECTION OFFICER FOOD-1 FOR SECRETARY TO GOVERNMENT OF SINDH."
15. As per prevailing rules the petitioner had to prepare/maintain full account of the receipt of wheat and its products. In the meanwhile the respondents received a policy decision from the Government of Sindh vide its letters NO.SOIF(I)-28 (49)/98-99 dated 31-10-1998 and No.FP- DR(ASP)/98/2488 dated 12-11-1998, the contents whereof are reproduced hereinbelow for ready reference:-- "The Director Food, Sindh, Karachi.
Subject: NON-SUBMISSION OF ELECTRICITY BILL BY THE FLOUR MILLS AND CHAKKIS.
It has been reported that some of the Flour Mills/Chakkis owners after getting wheat allocation from the Food Department officials do not grind the same straightaway sell the wheat in the market or to their counterparts at higher rates. This is clear cut violation of the Government policy which results late higher price of Atta, an essential item of daily consumption.
2. In order to have effective check over the grinding, it has already been decided that the Flour Mills and Chakkis would maintain proper record including the bills of electricity units consumed by them as it would help in checking whether Government subsidised wheat released to them is grinded fully or not. The Food officials showing any slackness in this regard shall be constituted to be involved with the black-marketers of wheat and disciplinary action shall be taken against them accordingly.
3. If the Flour Mills or Chakkis do not supply proper record or electricity bills, their wheat quota should be slashed by 50% immediately and saving made on this account should go to the Government.
4. In case wheat quota is not released to Flour Mills/Chakkis or the same is not utilised by them due to any reason, then that much quantity of wheat should remain as saving and not diverted to any other mill/Chakki. " List showing the names of such flour mills/Chakkis showing non-utili7,ed wheat released be intimated at the end of each month regularly. Please ensure strict compliance and send weekly progress reports without fail.
(Sd.)
SECTION OFFICER FOOD-I For SECRETARY TO GOVT. OF SINDH "The Rationing Controller Hyderabad.
The District Food Controller, Dadu, Thatta and Badin.
SUBJECT:NON-SUBMISSION OF ELECTRICITY BILL BY THE FLOUR MILLS AND C14AKKIS Enclosed please find herewith photostat copy of the letter of Section Officer Food-1, Government of Sindh, Food Department, Karachi, forwarded by Director Food Sindh, Karachi, on the above-cited subject.
Please ensure strict compliance of the directives mentioned in the above-cited letter and send weekly progress report without fail for onward submission to Government/Directorate.
Encl.: As above.
(Sd.)
DEPUTY DIRECTOR FOOD, HYDERABAD REGION. "
16. In accordance with the policy of the Government started checking so that flour mills and Chakki (Grinding Flour Mill) maintain proper record including the bills of electricity units consumed by them as it would help them in checking whether Government subsidized wheat supplied to them was grinded fully or not. If the Flour Mills or Chakkis (Grinding Flour Mill) did not maintain or supply the proper record of electricity bills, the consumption of wheat quota could be slashed by 50 % immediately and saving made on in this count could revert to the Government.
17. The petitioner was accordingly directed to produce electricity bills with regard to grinding of wheat supplied to him during previous months so that it could be verified with electricity consumption in regard to his grinding of wheat already supplied to him.
18. The petitioner produced paid-up bills of electricity of his Chakki (Grinding Flour Mill) for the month of July, 1998 and August, 1998 wherein following consumption of electricity units was shown:-- S.No.Month Consumption used.
1. July, 1998 30 Units
2. August, 1998 40 Units
19. The abovementioned electricity consumption was less than the required consumption. The data supplied by the respondents is reproduced herein below: -- S.No.Month Wheet Supplied Electricity ConsumptionBill ProducedLess Unit
1. July, 1998 250 875 30 845
2. August, 1998 200 700 40 660
20. The above tabular statement referred herein shows that the petitioner failed to prove grinding of Government subsidized wheat which was supplied to him. It appears that he disposed it of in open market.
21. In view of the above facts and circumstances the respondents called an explanation from the petitioner vide letter No.3033 dated 23-11-1998 regarding misuse of Government subsidise wheat. In the meantime, the Food . Inspector of the area also visited the 'Chakki' (Grinding Flour Mill) of the petitioner on 10-11-1998 and 11-11-1998 and reported that the petitioner did not maintain account of receipts and disposed of Government subsidized wheat. Accordingly, a show-cause notice was issued to him vide letter No.RC/HYD/98/3034 dated 23-11-1998 which was served upon the petitioner on 24-11-1998.
22. The petitioner did not furnish the required explanation within seven days.. He also failed to appear before the respondents, though opportunity of personal hearing was afforded to him. The respondents found him guilty of the contravention of the Foodgrain (Licensing Control) Order, 1957 for non--submission of the paid-up electricity bills and also for misusing Government subsidized wheat. He was, therefore, held liable for action under the Sindh Food Grain (Licensing Control)
Order, 1957. The respondent No.3/contemner being Rationing Controller, Hyderabad, and Licensing Authority, in exercise of the powers conferred upon him under clause 10 of the Sindh Foodgrain (Licensing Control) Order, 1957 ordered cancellation of the foodgrains Licence No.A/219 for dealing in wholesale business and food grains Licence No. F/21 to carry-out retail business with immediate effect I vide his office order No.RC/Hyd/98/4046 dated 11-12-1998.
23. The petitioner did not file any appeal against the said order of respondent No.3 as provided under section 10 of the Sindh Foodgrains (Licensing Control) Order, 1957. Section 10 is reproduced hereinunder in extenso:-- "
10. If any person holding a licence under this order contravenes any condition of the licence, then without prejudice to any other action which may be taken against him his licence may be suspended for a specified period and cancelled by the Licensing Authority or by the Director Food after due notice.
An appeal against suspension or cancellation of .the licence by the Director Food shall lie to Government by the Deputy Director, Food to the Director Food and by the District Food Controller, Rationing Controller to the respective Deputy Director Food within thirty days of the issue of the order appealed against.
The decision of Government, the Director Food and Deputy Director Food, as the case may be, shall be final. (Amended on 25th November, 1971)."
24. Instead of moving the appropriate authority as mentioned hereinabove the petitioner sent a legal notice dated 17-11-1998 to the respondents wherein he claimed entitlement of at least 4000 bags of subsidized wheat per annum. The respondent replied' to the petitioner whereby he was advised to exhaust his remedy before the forum as stated hereinabove, but he failed to do so. The petitioner instead of filing appeal before the appropriate authority filed the present M.A.52/99 (contempt application) before this Court in this case.
25. Before dilating upon the controversy of the parties, it will be pertinent to reproduce herein under the operative part of the order of this Court passed on MA 52/99 dated 9-2-1999:-- "We have heard the Additional Advocate-General as well as the respondent No.3, who is present in the Court. Respondent No.3 in his parawise comments disputes the fact that the petitioner appeared before him in response to the show-cause notice and that any reply was received by him in writing. His stand is that' he had issued a show-cause notice upon a report, filed by his Field Staff regarding the alleged irregularities committed by the petitioner and in due course of law the petitioner's licence was cancelled. We are of the opinion that this a disputed question on fact and cannot be assessed in the writ jurisdiction of this Court. However, in our opinion, it would be fair in the given circumstances to accord the petitioner another chance to appear before the respondent No.3 and submit a proper reply as well as his justification, which he has pleaded today before us.
Consequently, till this exercise is completed, cancellation of the licence of the petitioner is suspended. As suggested by the learned counsel for the petitioner, the petitioner shall appear on 20-2-1999 before the respondent No.3 and shall submit his detailed reply to the show-cause notice, issued to him by the respondent No.3. In accordance with the accepted proof of natural justice the respondent No.3 is directed to impart a fair hearing to the petitioner and adopt the correct procedure. With these observations, the present miscellaneous application is disposed of."
26. In pursuance to the above order of this Court, the respondents restored the foodgrain licence of the petitioner vide their letter No.RC/Hyd/99/387 dated 13-2-1999.
27. The petitioner submitted his reply to the show-cause notice No.RC/Hyd/98/3034 dated 23-11- 1998 on 18-2-1999 but he failed to produce requisite documents and record. He was again afforded an opportunity to produce documents as mentioned in the letter No.RC/Hyd/99/442 dated 2z-2- 1999. In the said letter, the petitioner was required to appear before the respondent No.3/contemner on the same day, at 3-30 p.m. for personal hearing alongwith the required documents.
28. The petitioner appeared and produced stock register; electricity consumption bills for the months of August to November, 1998 alongwith his written statement dated 23-2-1999. He undertook to produce the electricity consumption bill for December, 1998 on 24-2-1999. He admitted in his statement that he neither issued any cash memo. nor sent any fortnightly report to the concerned authorities.
29. It will be pertinent to reproduce herein under the relevant portion of the comments filed by the respondents, for the sake of convenience: "The reply furnished by the petitioner and subsequent his written statement have not met the requirements -of the basic show-cause notice and whatever documents etc. furnished have been verified thoroughly and found not satisfactory on the following grounds:-- The petitioner had produced only stock register which on verification has been found to contain numberless errors (Photostat copy placed as Annexure "W") which shows the maintenance of register is an afterthought and manipulated and does not contain any verification note as claimed-by the petitioner in para. 6 of his reply to the show-cause notice, Annexure "S". As for production of other record viz. Cash memo. etc. he has failed to produce and had even admitted its non-maintenance in his written statement Annexure "U".
He was required to provide proof in respect of delivery of fortnightly reports which he claimed to have been providing in para.3 of his reply Annexure "S" but himself had denied submission of the same in his written statement Annexure "U".
The electricity bills produced by the petitioner have been verified and it is strange to note that consumption is not in accordance with the Government subsidised wheat supplied to him. The agreed formula by the Roller Flour Millers and Chakki owners is that 3.5 to 4.5 units are consumed in grinding of one bag of 100 kgs. Of wheat and accordingly the consumption of electricity per 100 bags works-out to 350 to 450 units but the position evident from the bills furnished by the petitioner as against the wheat supplied to him, is very much differential as would be evident from the position submitted hereunder:-- Months Government wheat supplied Electric Units in bagsElectricity units required to be consumedElectricity units consumed as per copies of bills provided by the petitioner 8/98 200 700 40 9/98 200 700 x 10/98 200 700 40 11/98 100 350 33 The perusal of the above tabular statement is very much clear that the petitioner has not grinded the Government subsidized wheat as the average consumption of electricity is in between astonishing and un--believable. "
30. It is well settled that the committal for contempt of Court is a weapon, which is to be used sparingly and always with reference to administration of Justice, where ex facie some contempt of Court has been committed.
31. In the case of Re. Ramsay LR 3 PC 427 it was observed that it must be borne in mind that the offence of contempt of Court is purely sui generis and that the punishment for it involves in most cases in exceptional interference with the liberty of the subject and that, too, by a method or process which would, in no other case, be permissible or even tolerated.
32. In the case of Amulyaratan v. AmulYa Chandra reported in 32 CWN 1242 it was held that the law relating to contempt of Court invests the Court with absolute power. It is, therefore, more necessary that it should be exercised with great caution and not without ample materials before it.
33. Again in the case of K.M. Bason v. A.H. Skone reported in 88 IC 725 it was observed that the High Court must always exercise its powers of punishing people for contempt, and when the occasion arises, it deals with such questions in the interest of the public, bearing in mind that the greater power it possesses, the more caution it is necessary to use in exercising it. In other words the Court does not interfere where the offence is of a slight or trifling nature and it only interferes where there is a real attempt to obstruct the course of justice.
34. .In the case of Tarit Kanti Biswa s reported in AIR 1918 Cal. 988 it was observed by Sanderson, C.J.
(as he then was) that the jurisdiction, which the Court has in respect of a contempt of Court should be exercised with great care and it should only be exercised when the case is beyond all reasonable doubt, and this should especially be the case when the proceedings are at the instance of the Court itself.
35. Ordinarily, there is no bar in moving the Court in order to bring a case of contempt of Court to the notice of the Court for taking action against an alleged contemner or contemners. But this right cannot be misused with malicious intentions to cause harassment to others.
36. In the case of Tarafatullah v. S.N. Maitra (AIR 1952 Cal. 919), it was observed by Chakravartti, J.
(as he then was) as follows:-- "------------..This Court is and has always been jealous of its authority in public interest and will, I hope, always continue to be so. It will regard persons who bring to its notice cases of violation of its orders as persons who aid the administration of justice. But it cannot tolerate being misled by accusations against wrong parties and cannot allow its time to be wasted by proceedings which ought not to have been initiated at all in respect of the parties against whom they are directed."
" ... It appears from the books that it is the practice on the Crown side in the High Court in England to award costs to the respondents in a contempt proceeding if the charge is not established. Where the person charged with contempt is proved to have done the act complained of and the question merely is whether it amounted to contempt or not it may not always be proper to make an order for costs even if the decision be in favour of the respondent. But where, as in the present case, no connection with the persons charged with the acts complained of has been attempted to be established, it is obviously fair and proper that the persons so unreasonably treated should be indemnified in costs. "
37. In this case, the petitioners were three in number and the Rule was against five persons who were Government officers. The rule was discharged and the petitioners were directed to pay costs."
38. The upshot of the above discussion is that the application under section 3/4 of the Contempt of Court Act, 1976, moved by the petitioner, merits no consideration and it is accordingly dismissed.