Full Judgment Text
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PETITIONER:
BARADAKANTA MISHRA,EX-COMMISSIONER OF ENDOWMENTS
Vs.
RESPONDENT:
BHIMSEN DIXIT
DATE OF JUDGMENT29/09/1972
BENCH:
DWIVEDI, S.N.
BENCH:
DWIVEDI, S.N.
SHELAT, J.M.
CHANDRACHUD, Y.V.
CITATION:
1972 AIR 2466 1973 SCR (2) 495
1973 SCC (1) 446
ACT:
Orissa Hindu Religious Endowments Act--Appointment of
interim trustee under s. 41 without enquiry--High Court’s
decision on the identical point not followed in bad faith by
Commissioner of Endowments in revision amounts to
contempt--Bonafide but erroneous distinguishing of a binding
precedent not contempt.
HEADNOTE:
Under S. 27 of the Orissa Hindu Religious Endowments Act,
the Additional Assistant Commissioner of Hindu Religious
Endowments, appointed an interim trustee of two deities in a
village in Orissa. The person in charge of the deities made
an objection under S. 41 of the said Act, that since the
deities were consecrated under a private endowment, the Act
did not apply to the facts of the case. The Additional
Assistant Commissioner rejected the objection without making
any inquiry under S.41. The objector filed a revision under
s. 9 of the said Act, before the appellant.
During the period between the rejection of the objection and
the filing of the revision, the Orissa High Court in
Bhramarbar Santra & Ors. V. State of Orissa and Others,
I.L.R. 1970 Cuttack 54 decided the identical question and
(the High- Court) held that the Assistant Commissioner
cannot appoint an interim trustee under s. 27 until he has
held an inquiry under s. 41 and has found that there was no
hereditary trustee of the religious institution.
At the hearing of the revision, the said decision of the
High Court was cited before the appellant, but the appellant
did not follow it and dismissed the revision.
The applicant filed a writ petition, in the High Court
against this order. The Division Bench on hearing the
applicant issued notice to contempt of the High Court to the
applicant. The High Court took exception to the following
sentence occurring at the end of paragraph 2 in his order
"Further, against the order we have moved the Supreme Court,
and as such, the matter can be safely deemed to be sub-
judice."
and held that the appellant was guilty of contempt of Court.
On appeal before this Court, it was contended that the
appellant was not guilty of contempt of court, for, the
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sentence in the appellant’s order, neither interfered with
the administration of justice, nor scandalised the High
Court.
Dismissing the appeal,
HELD : (1) Contempt of court is disobedience to the court by
acting in opposition to the authority, justice and dignity
thereof, it signifies the willful disregard or disobedience
of the court’s order. It also signified such conduct as
tends to bring the authority of the court and the adminis-
tration of law into disrepute, Oswald’s Contempt of Court,
1910 Edn. pp. 5-6 referred to. [496D]
(ii) It is a common-place that where the superior court’s
order staying proceedings is disobeyed by the inferior court
to whom it is addressed, the latter court commits contempt
of court for it acts in disobedience
496
the authority of the former court. The act of disobedience
is calculated to undermine public respect for the superior
court and to jeopardise the preservation of law and order.
[496E]
(iii) The appellant is guilty of contempt. Firstly, on
the date of the order, nothing was pending in the Supreme
Court; only a petition was pending in the High Court form a
certificate to appeal to the Supreme Court from the decision
in Bhramarbar Santras Case’ The appellant has thus made a
wrong statement of fact. Secondly, the use of the word "we"
is also significant. it indicates that the appellant
identified himself as a litigant in the case and did not
observe due detachment and decorum as a quasi-.judicial
authority. Lastly, it is not possible to believe that the
appellant, who had 23 years of judicial experience, could
have entertained the view that as soon as a petition for
certificate to appeal to the Supreme Court was filed in the
High Court against the decision, the binding character of
the decision disappeared. it is, therefore, clear that the
appellant deliberately avoided to follow the High Court’s
decision by giving wrong and illegitimate reasons and that
his conduct is ’clearly mala-fide, [496 G]
Under Art. 227 of the Constitution, the High Court is vested
with the power of superintendence over the Courts and
tribunals in the State. Acting as a quasi-judicial
authority, the appellant was also subject to the super-
intendence of the High Court. Accordingly, the decisions of
the High Court were binding on him. He could not get away
from them by adducing factually wrong and illegitimate
reasons. The conduct of the appellant in not following the
previous decision of the High Court is calculated to create
confusion in the administration of law, which will undermine
respect for law laid on by the High Court and impair the
constitutional authority of the High Court. Therefore, the
High Court has rightly found the appellant guilty of
contempt. A bonafide but mistaken act of distinguishing a
binding precedent does not amount to contempt. [500B]
East India Commercial Co. Ltd., Calcutta & Anr. v. The
Collector of Customs Calcutta, [1963] 3 S.C.R. 338, referred
to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 312 of
1971.
July 8, 1971 of the Orissa High Court in Original Criminal
Misc. case No. 9 of 1970,
C. K. Daphtary, A. K. Verma and B. P. Singh, for the
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appellant.
Lal Narain Sinha, Solicitor-General of India and U. P.
Singh, for respondent No. 2,
The Judgment of the Court was delivered by
DWIVEDI, J. The appellant is a member of the Superior
Judicial Service of the State of Orissa, He was at one time
officiating as District Judge. At the relevant time he was
functioning as Commissioner of Hindu Religious Endowments,
Orissa. The office of the Commissioner is created by the
Orissa Hindu Religious Endowments Act.
497
In village Sanabagalpur there are two deities. The
Additional Assistant Commissioner of Hindu Religious
Endowments took action under s. 27 of the said Act for
appointing an interim trustee of the deities. The person
incharge of the deities made an objection under s. 41 of the
said Act that the Act did not apply as the deities were
consecrated under a private endowment made by him The
Additional Assistant Commissioner rejected the objection by
his order dated July 26, 1967. Without making any inquiry
under s. 41, he held that prima facie there was a public
endowment. He did not appoint the objector as a trustee of
the deities. The objector filed a revision under s. 9 of
the said Act before the appellant.
During the period intervening between the rejection of the
objection by the Addl. Assistant Commissioner and the
filing of the revision by the objector, the identical issue
was raised before the Orissa High Court in Bhramarbar Santra
and others v. State of Orissa and others(1). In that case
the High Court held that the Asstt. Commissioner cannot
appoint an interim trustee under s. 27 of the said Act until
he has held an inquiry under s. 41 and has found that there
was no hereditary trustee of the religious institution.
At the., hearing of the revision the aforesaid decision was
cited before the, appellant by the applicant. After hearing
the parties, the appellant made the following order
"1...... It is said on behalf of the
petitioner that he has filed a petition under
section 41 of the Act. But no evidence is
produced to that effect, thereby disclosing
that their plea is humbug. The next argument
is that the learned Assistant Commissioner
should have first decided that the institution
has no hereditary trustee. The Assistant
Commissioner has impliedly done so.
2. The next argument that without a final
declaration as to the nature of the
institution, no appointment under Section 27
can be made, does not seem to be correct. The
decision in the High Court on Bantala case
would not be applicable to this instance.
Further against the order, we have moved the
Supreme Court, and as such, the matter can be
safely deemed to be subjudice.
3. In order to establish that the
petitioner is the hereditary trustee, he has
to file an application under section 41 of the
Act. No doubt the court can initiate such a
proceeding, But we should not do it where the
institution appears to be safely a public one,
in this instance, a Siva temple."
(1) I.L.R. 1970 Cuttack 54.
498
The applicant filed a writ petition in the High Court
against this order. The Division Bench, on hearing the
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applicant, issued notice for contempt of the High Court to
the appellant. The High Court took exception to the
following sentence occurring at the end of paragraph 2 in
his order : "Further, against the order we have moved the
Supreme Court, and as such, the matter can be safely deemed
to be sub judice."
The appellant appeared before the High Court in response to
the notice. According to him the apparently objectionable
sentence in his order "was not at all the basis for (his)
decision." He said that the revision was dismissed by him
after distinguishing the case before him from the facts of
Bhramabar Santra. (1) He further Pleaded "that under the
Constitution the decisions of the Supreme Court are law of
the land. So, bonafide, was of the opinion that when a
matter is under appeal, or otherwise before the Supreme
Court, the point of law, becomes subjudice and only a
decision of the Supreme Court in the matter, would be
binding on the Subordinate Court." It was also pleaded that
the proceeding before him was an administrative proceeding
and that the act of not following the decision of the High.
Court in such a proceeding "may not amount to contempt of
court."
The High Court did not accept his pleas in justification.
It was held that the appellant "refused to follow" the
decision in Bhramarbar Santra ’and others.(1) The High Court
further held that "we do not And any trace of bona fides of
the condemner in the order dated 19th January, 1970........
The condemner is a senior judicial officer who has already
-put in 23 years of service; having been recruited as a
Munsif he has now risen to the rank of District Judge. We
regret to find that though he has functioned as a judicial
officer for about 23 years he has not been able to pick up
the approach and attitude of a judicial officer and has
actuated by the bias so often manifested in action of the
-executive today while disposing of a judicial proceeding
and when found fault with has come up with the stand that he
was acting administratively."
After examining the matter further, the High Court said :
"The conduct of the condemner far from being bonafide is
clearly a malafide one and he intentionally avoided to
follow the decision of this Court by advancing grounds which
were most inappropriate." On that view of the matter the
High Court found him guilty of contempt of court and
admonished him in open court and directed him to pay Rs. 300
as costs of the proceedings.
Shri Daphtary, counsel for the appellant, rightly did not
seek to support the justification pleas. His argument now
is that the
(1) I.L.R. 1970 Cuttack 54.
499
appellant is not guilty of contempt of Court, for the
sentence in the appellant’s order, found objectionable by
the High Court, neither interferes with the administration
of justice nor scandalises the High Court.
Shri Daphtary as well as the Solicitor-General appearing for
the State have stated before us that there is no decided
case either in support of or against the argument. But the
absence of a precedent should not preclude an act being held
to be contempt merely because it is novel or unusual
provided it is comprehended by the principles underlying the
law of Contempt of Court. The absence of precedent should’
however put the court on guard that the area of contempt is
not being unduly expanded (Vide 17 Corpus Juris Secundum
21). The present case then is to be decided on principles
and analogy.
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Contempt of Court is disobedience to the court, by acting in
opposition to the authority, justice and dignity thereof.
It signifies a willful disregard or disobedience of the
court’s order; it also signifies such conduct as tends to
bring the authority of the court and the administration of
law into, disrepute. (Vide 17 Corpus furls Secundum pages 5
and 6; Contempt by Edward N. Dangel (1939 Edn.) page 14.
Oswald’s Contempt of Court (1910 Edn.) pages 5 and 6).
It is a commonplace that where the superior court’s order
staying proceedings is disobeyed by the inferior court to
whom it is addressed, the latter court commits contempt of
court for it acts in disobedience to the authority of the
former court. The act of disobedience is calculated to
undermine public respect for the superior court and
jeodardise the preservation of law and order. The
appellant’s case is to be examined in the light of the
foregoing principles and analogy.
The remark in the appellants order found objectionable by
the High Court is this : "Further, against the order we have
moved the Supreme Court, and as such the matter can be
safely deemed to be subjudice." It may be observed that on
the date of the order nothing was pending in the Supreme
Court; only a petition was pending in the High Court for a
certificate to appeal to the Supreme Court from the decision
in Bhramarbar Santra. (1) The appellant has thus made a
wrong statement of fact. Secondly, the use of .the
personal pronoun "We" is also significant. It indicates
that the appellant identified himself as a litigant in the
case and did not observe due detachment and decorum as a
quasi judicial authority. Lastly, we agree with the High
Court that it is not possible to believe that the appellant
could have entertained the view that as soon as a petition
for certificate to appeal to the
(1) I.L.R. 1970 Cuttack 54.
500
Supreme Court was filed in the High Court against its
decision, the binding character of the decision disappeared.
He has 23 years’ judicial experience and he could scarcely
entertain that belief. We agree with the High Court that
the appellant deliberately avoided to follow its decision by
giving wrong and illegitimate reasons and that his conduct
was "clearly mala fide".
Under Art. 227 of the Constitution, the High Court is vested
with the power of superintendence over the courts and
tribunals in the State. Acting as a quasi judicial
authority under the Orissa Hindu Religious Endowments Act,
the appellant was subject to the superintendence of the High
Court. Accordingly the decisions of the High Court were
binding on him. He could not yet away from them by adducing
factually wrong and illegitimate reasons. In East India
Commercial Co. Ltd. Calcutta and Another v. The Collector
of Customs, Calcutta(1) Subba Rao J. observed :
"The Division Bench of the High court held
that a contravention of a condition imposed by
a licence issued under the Act is not an
offence under s. 5 of the Act. This raises
the question whether an administrative
tribunal can ignore the law declared by the
highest court in the State and initiate
proceedings in direct violation of the law so
declared. Under Art. 215, every High Court
shall be a court of record and shall have all
the powers of such a court including the power
to punish for contempt of itself. Under Art.
226, it has a plenary power to issue orders or
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writs for the enforcement of the fundamental
rights and for any other purpose to any person
or authority, including in appropriate cases
any Government, within its territorial
jurisdiction. Under Art. 227 it has
jurisdiction over all courts and tribunals
throughout the territories in relation to
which it exercise jurisdiction. It would be
anomalous to suggest that a tribunal over
which the High Court has superintendence can
ignore the law declared by that court and
start proceedings in direct violation of it.
If a tribunal can do so, all the subordinate
courts can equally do so, for there is no
specific provision, just like in the case of
Supreme Court. making the law declared by the
High Court binding on subordinate courts. It
is implicit in the power of supervision
conferred on a superior tribunal that all the
tribunals subject to its supervision should
conform to the law laid down by it. Such
obedience would also be conducive to their
smooth working; otherwise there would be
confusion in the administration of law and
respect for law would irretrievably suffer."
(1) [1963] 3 S.C R. 338 at 366.
501
The conduct of the appellant in not following the previous,
decision of the High Court is calculated to create confusion
in the administration of law. It will undermine respect for
law laid down by the High Court and impair the
constitutional authority of the High Court. Ms conduct is
therefore comprehended by the principles underlying the law
of Contempt. The analogy of the inferior court’s
disobedience to the specific order of a superior court also
suggests that his conduct falls within the purview of the
law of Contempt. Just as the disobedience to a specific
order of the Court undermines the authority and dignity of
the court in a particular case, similarly the deliberate and
malafide conduct of not following the law laid down in the
previous decision undermines the constitutional authority
and respect of the High Court. Indeed, while the former
conduct has repercussions on an individual case and on a
limited number of persons, the latter conduct has a much
wider and more disastrous impact. It is calculated not only
to undermine the constitutional authority and respect of the
High Court, generally, but is also likely to subvert the
Rule of Law ’and engender harassing uncertainty and
confusion in the administration of law.
Our view that deliberate and malafide conduct of not follow-
ing the binding precedent of the High Court is contumacious
does not unduly enlarge the domain of contempt. It would
not stifle a bona fide act of distinguishing the binding
precedent, even though it may take out to be mistaken.
As a result of the foregoing discussion, we think that the
High Court has rightly found the appellant guilty of
contempt. So we dismiss the appeal.
S.C.
Appeal dismissed.
502