Full Judgment Text
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PETITIONER:
THAKUR JUGAL KISHORE SINHA
Vs.
RESPONDENT:
SITAMARHI CENTRAL CO-OPERATIVE BANK LTD. & ANR.
DATE OF JUDGMENT:
13/03/1967
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
SHELAT, J.M.
CITATION:
1967 AIR 1494 1967 SCR (3) 163
CITATOR INFO :
RF 1969 SC 724 (23,24)
RF 1969 SC1320 (33)
R 1974 SC 710 (40)
ACT:
Bihar and Orissa Co-operative Societies Act, 1935-Assistant
Registrar Co-operative Societies acting under s. 48-Whether
a court-Whether subordinate to the High Court for the
purpose of contempt of Courts Act, 1952, s. 3.
HEADNOTE:
The appellant in an appeal to the Joint Registrar of Co-
operative Societies Bihar alleged that the Assistant
Registrar in deciding a matter against him under s. 48 of
the Bihar and Orissa Co-operative Societies Act 1935 had
discriminated against the appellant and had used double
standards. In proceedings under the Contempt of Courts Act
the High Court of Patna held the appellant guilty. Appeal
with certificate was filed in this Court. The questions
that fell for consideration were : (i) whether the Assistant
Registrar of Co-operative Societies was a court within the
meaning of the Contempt of Courts Act 1952; (ii) If a court,
whether it was a court subordinate to the Patna High Court;
(iii) whether the words used by the appellant in his, appeal
amounted to contempt.
HELD : The appellant had been rightly convicted.
(i) The Assistant Registrar was functioning as a court in
deciding the dispute in question. His adjudication was not
based upon a private reference nor was his decision arrived
at in a summary manner, but with all the paraphernalia of a
court and the powers of an ordinary civil court of the land.
[173 E]
(Decision confined to cases under the Bihar Act only).[180
G]
Brajnandan Sinha v. Joyti Narain, [1955] 2 S.C.R. 955 and
Shri Virindar Kumar Satyawadi v. The State of Punjab, [1955]
2 S.C.R. 1013, relied on.
Shell Co. of Australia v. Federal Commissioner of Taxation,
[1931] A.C. 275, Bharat Bank Limited v. Employees of Bharat
Bank Ltd. [1950] S.C.R. 459, Maqbool Hussain v. State of
Bombay, [1963] S.C.R. 730, Cooper v. Wilson, [1937] 2 K.B.
309, Huddari, Parker & Co. v. Moorehead, (1909) 8 C.L.R.
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330, Malabar Hill Co-operative Housing Society v. K. L.
Gauba, A.I.R. 1964 Bom. 147, Raja Himanshu Dhar Singh v.
Kunwar B. P. Sinha, 1962 All. L.J. 57, Sukhdeo v. Brij
Bhushan, A.I.R. 1951 All. 667, In re Annamalai, A.I.R. 1953
Madras 362, Kapur Singh v. Jagat Narain, A.I.R. 1951 Punj.
49, Lakhama Pesha v. Venkatrao, Swamirao, A.I.R. 1955 Bom.
103, Budhi Nath Jha v. Manital Jadav, A.I.R. 1960 Patna 361
and State of Uttar Pradesh v. Ratan Shukla, A.I.R. 1956 All.
258, referred to.
(ii) The Assistant Registrar was a court subordinate to the
High Court for the purpose of s. 3 of the Contempt of Courts
Act. Under Art. 227 of the Constitution the High Court
exercises judicial control over all courts and tribunals
functioning within the limits of its territorial
jurisdiction. Subordination for the purposes of s. 3 means
judicial subordination and not subordination under the
hierarchy of courts under the Civil- Procedure
164
Code or the Criminal Procedure Code Article 228 of the
Constitution does not indicate that unless a High Court can
withdraw a case to itself from another court for disposing
of a substantial question of law as to the interpretation of
the Constitution the. latter court is not subordinate to the
High Court. [176 D; 179 C, F]
(iii)The words used by the appellant clearly amounted to
contempt. [166 E]
It is in the interest of justice and administration of law
that litigants should show the same respect to a court no
matter whether it is the highest in the land or whether it
is one of inferior jurisdiction only. [180 E-F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.18 of
1965.
Appeal from the judgment and order dated December 14, 1964
of the Patna High Court in Original Criminal Misc. No. 6 of
1964.
B. P. Singh, for the appellant.
D. Goburdhun, for respondent No. 1.
U. P. Singh, for respondent No. 2.
The Judgment of the Court was delivered by
Mitter, J. This appeal by certificate granted by the High
Court at Patna under Art. 134(1)(c) of the Constitution is
directed against the judgment and order of that court dated
December 14, 1964 in Criminal Miscellaneous Appeal No. 6 of
1964 whereby the appellant was found guilty of contempt of
,court, i.e., of the Assistant Registrar, Co-operative
Societies, Sitamarhi Circle, exercising the powers of the
Registrar, Cooperative Societies, Bihar under S. 48 of the
Bihar and Orissa Cooperative Societies Act, 1935.
The three questions which were argued before us in this
appeal were :- (1) Whether the Assistant Registrar of Co-
,operative Societies was a court within the meaning of the
Con-’ tempt of Courts Act, 1952; (2) Even if it was a court,
whether it was a court subordinate to the Patna High Court
and (3) whether the words used by the appellant in one of
his grounds of appeal to the Joint Registrar of Co-operative
Societies, which formed the basis of the complaint, did
amount to contempt of any court.
The facts necessary for the disposal of the appeal are as
follows. The Sitamarhi Central Co-operative Bank Ltd.
(formerly named as Sitamarhi Central Cooperative Union) was
a society registered under the Bihar and Orissa Co-operative
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Societies Act, 1935, hereinafter referred to as the Act.
The appellant was the elected Chairman of the Society, and
was in control of its entire
165
affairs. The bank was engaged in carrying on a business
inter alia in salt, sugar and kerosene oil. It was alleged
that the appellant entrusted to one Suraj Banshi Choudhary
the work of supplying, coal for which purpose he was given
an advance of Rs. 7,004-5-0 and that out of this amount a
sum of Rs.. 5,014-5-9 could not be realised from Suraj
Banshi Choudhary. Thereafter, a surcharge proceeding under
s. 40 of the Act was taken up before the Registrar of Co-
operative Societies on December 22, 1953 when a sum of Rs.
14,288-13-9 was held to be realisable from *,be appellant
and another person. The appellant went in appeal to the
State Government and by an order dated March 28, 1957 the
amount was reduced to Rs. 5,014-5-9. The bank was not made
a party to the appeal before the State Government and it
raised a dispute under s. 48 of the Act that the appellant
was liable for the whole of the original amount of Rs.
14,288-13-9 on the ,round that the State Government’s order
being ex parte was not binding on it. This dispute went to
the Assistant Registrar of Co-operative Societies exercising
powers of the Registrar under s. 48 of the Act. On May 15,
1964, the Assistant Registrar decided the matter upholding
the contention of the bank and making the appellant liable
for the entire amount of Rs. 14,288-13-9. In the meantime,
however, the appellant had challenged his liability for the
amount of Rs. 5,014-5-9 as determined in appeal by the State
Government by a Writ Petition to the High Court of Patna
which was dismissed. He then filed a title suit before the
Subordinate Judge of Muzaffarpur who decreed it in his
favour and at the time when the contempt matter was heard by
the Patna High Court, an appeal preferred by the bank from
the said decree was pending before the District Judge,
Muzaffarpur. The appellant preferred an appeal to the Joint
Registrar of Co-operative Societies against the order of the
Assistant Registrar who was made respondent No. 2 in the
appeal. One of the grounds of appeal ran as follows :-
"For that the order of respondent No. 2 is
mala fide inasmuch as after receiving the
order of transfer he singled out this case out
of so many for disposal before making over
charge and used double standard in judging the
charges against the defendants Nos. 1 and 2.
It is prayed that it should be declared that
the order of the Assistant Registrar is
without jurisdiction, illegal and mala fide
and heavy costs should be awarded making
respondent No. 2 responsible mainly for such
costs."
The bank filed an application in the Patna High Court on
August 14, 1964 for starting proceedings in contempt against
the appellant. The appellant filed a petition showing cause
and in grounds 29 and 30 of his petition, he asserted that
he was within
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his legitimate right to call the decision of the Assistant
Registrar mala fide for the reasons given and that he had
the right to criticise the discriminatory order of the
Assistant Registrar as the said officer had laid down two
standards in judging the alleged liability of himself and
Sri Jagannath Jha by exonerating Jagannath Jha from the
liability for the entire amount of Rs. 14,288-13-9 while
holding the appellant liable for the entire amount without
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examining the up-to-date position of payment of the amounts
for which the claim had been preferred. In a supplementary
affidavit filed on October 28, 1964, the appellant further
stated that the order of the Assistant Registrar was mala
fide in that at the time when it was made the Assistant
Registrar was due for transfer and he had picked out two or
three cases out of about fifty pending before him.
The High Court at Patna turned down all the contentions of
the appellant in an elaborate judgment and held that the
appellant was guilty of a calculated contempt. He was
sentenced to undergo simple imprisonment until the rising of
the court and to pay a fine of Rs. 200 in default whereof he
was to undergo a further simple imprisonment for two weeks.
The last of the three points urged before this Court was the
weakest to be advanced. There can be no doubt that the
words used in this case in the grounds of appeal clearly
amounted to ’contempt of court provided the Assistant
Registrar was a court and the Contempt of Courts Act was
applicable to the facts of the case. The Assistant
Registrar was charged with having acted mala fide in that he
had singled out the case of the appellant out of many for
disposal and used a double standard in his adjudication
against the appellant and Jagannath Jha clearly meaning
thereby that the Assistant Registrar had fallen from the
path of rectitude and had gone out of his way in taking up
and disposing of the case of the appellant out of many which
were pending before him and which he could not possibly have
completed because of his imminent transfer.
According to Halsbury’s Laws of England (Third Edition-Vol.
8) at p. 7 :
"Any act done or writing published which is
calculated to bring a court or a Judge into
contempt, or to lower his authority, or to
interfere with the due course of justice or
the lawful process of the court, is a contempt
of court. Any episode in the administration
of justice may, however be publicly or
privately criticised, provided that the
criticism is fair and temperate and made in
good faith. The absence of any intention to
refer to a court is a material point in favour
of a person alleged to be in contempt."
167
We can, find nothing exculpatory in the reply to the show
cause notice filed by the appellant before the Patna High
Court. There he sought to justify his complaint made in his
grounds of appeal. The criticism of the Assistant Registrar
was neither fair nor temperate nor made in good faith. The
obvious aim of the appellant in formulating his ground of
appeal in the way it was done was to show that the Assistant
Registrar had acted in a manner which was contrary to
judicial probity and that he should therefore be penalised
in costs.
The third ground therefore is devoid of any substance and
cannot be accepted.
In order to appreciate whether the Assistant Registrar was
functioning as a court, it is necessary to examine certain
provisions Of the Act. The Act which is both a
consolidating and an amending one was enacted to facilitate
the formation, working and consolidation of co-operative
societies for the promotion of thrift, self-help and mutual
aid among agriculturists and other persons with common
needs. S. 2(1) defines ’Registrar’ as a person appointed to
perform the duties of a Registrar of cooperative societies
under the Act. Under s. 6(1) the State Government may
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appoint a person to be Registrar of Co-operative Societies
for the State or any portion of it, and may appoint persons
to assist such Registrar. Under s. 6 sub-s. (2) (a) the
State Government may, by general or special order published
in the official gazette, confer on any person appointed
under sub-s. (1) to assist the Registrar, all or any of the
powers of the Registrar under the Act except the powers
under s. 26. Under s. 13, the registration of a society
makes it a body corporate by the name under which it is
registered, with perpetual succession and a common seal and
with power to acquire and hold property, to enter into
contracts, to institute and defend suits and other legal
proceedings and to do all things necessary for the Purposes
for which it is constituted. Chapter V deals with audit and
inspection of societies. Under s. 33 the Registrar must
audit or cause to be audited by some person authorised by
him, the accounts of every registered society once at least
in every year. Under sub-s. (4) of s. 33 the auditor has to
submit a report including therein inter alia every
transaction which appears to him to be contrary to law, the
amount of any deficiency or loss which appears to have been
incurred by the culpable negligence and misconduct of any
Person, the amount of any sum which ought to have been but
has not been brought into account by any person and any
money or property belonging to the society which has been
misappropriated or fraudulently retained by any person
taking part in the organisation or management of the society
or by any past or present officer of the society or by any
other person.S.35 provides for certain inquiries by the
Registrar. S. 40 pro-
168
vides inter alia that where as a result of an audit under s.
33 or an inquiry under s. 35 it appears to the Registrar
that any person who has taken part in the Organisation or
management of the society or any past or present officer of
the society has made any payment which is contrary to law or
by reason of his culpable negligence or misconduct involved
the society in any loss or deficiency, or failed to bring
into account any sum which ought to have been brought into
account, or misappropriated or fraudulently retained any
property of the society, he may inquire into the conduct of
such person and after giving such person an opportunity of
being heard, make an order requiring him to contribute such
sum to the assets of the society. Sub-s. (3) of s. 40 pro-
vides for an appeal from the order of the Registrar to the
State Government on application made by the person or
officer against whom the order was passed. S. 48 enumerates
various kinds of disputes touching the business of the
registered society which must be referred to the Registrar.
Such disputes may be amongst members, past members, persons
claiming through members, past members or deceased member
and sureties of members, past members or deceased members,
or between the society and any past or present officer,
agent or servant of the society. Under sub-s. (2) the
Registrar may on receipt of such reference-
(a) decide the dispute himself, or
(b) transfer it for disposal to any person exercising the
powers of a Registrar in this behalf, or
(c) subject to any rules, refer it for disposal to an
arbitrator or arbitrators.
Under sub-s. (3) the Registrar may withdraw any reference
transferred under cl. (b) of sub-s. (2) or referred under
cf. (c) of the said sub-section and deal with it in the
manner provided in the said sub-section. Under sub-s. (6)
any person aggrieved by any decision given in a dispute
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transferred or referred under cl. (b) or (c) of sub-s. (2)
may appeal to the Registrar. Sub-s. (7) gives the
Registrar, in the case of dispute under this section, the
power of review vested in a civil court under s. 114 and
under 0. XLVII, r. 1 of the Code of Civil Procedure, 1908 as
also the inherent jurisdiction specified in s. 151 C.P.C.
Sub-s. (8) gives the Registrar the power to state a case and
refer it to the District Judge for decision whereupon the
decision of the District Judge is to be final. Under sub-s.
(9) a decision of the Registrar under this section and
subject to the orders of the Registrar on appeal or review,
a decision given in a dispute transferred or referred under
cl. (b) or (c) of sub-s. (2) is to be final. S. 49 gives
the Registrar power to summon and enforce the attendance of
witnesses and parties concerned and to examine them upon
169
oath and to compel the production of any books of account,
documents or property by the same means and so far as may
be, in the same manner as is provided in the case of a civil
court under the Code of Civil Procedure. S. 50 authorises
the Registrar in certain cases to direct attachment of
property of any person who with intent to defeat or delay
the execution of any order that may be passed against him
under s. 48 is about to dispose of the whole or any part of
his property or to remove any part of his property from the
local limits of the jurisdiction of the Registrar. S.57(1)
provides that
"(1) Save in so far as expressly provided in
this Act, no civil or revenue court shall have
any jurisdiction in respect of any matter
concerned with the winding up or dissolution
of a registered society under this Act, or of
any dispute required by section 48 to be
referred to the Registrar or of any
proceedings, under Chapter VII-A."
Chapter VII-A of the Act headed ’distraint’ provides for
recovery or a debt or outstanding by distraining while in
the possession of the defaulter any crops or other products
of the earth standing or ungathered on the holding of the
defaulter. The Chapter contains sections making elaborate
provision for the sale of property distrained. S . 66 gives
the State Government power to frame rules for any registered
society or a class of registered societies. The latest
rules are those framed in the year 1959. Rule 68 lays down
the procedure for adjudication of disputes under s. 48. It
provides for a reference to the Registrar in writing, on
receipt where of the Registrar has to cause notice of it to
be served on, the opposite party requiring him to show cause
within a specified time. After a written statement is
filed, the Registrar may decide the dispute himself or
transfer it to any person exercising the powers of a
Registrar in this behalf or to an arbitrator. There is also
a provision for substitution of the heirs or legal
representatives of a party to the dispute who dies pending
the adjudication. The Registrar or the arbitrator is
obliged to give a decision in writing after considering the
evidence adduced by the parties. Before the Registrar or
arbitrator, a party has a right to be represented by a legal
practitioner.
In this case, the Assistant Registrar concerned, along
with several other persons, was given the power of the
Registrar under various sections of the Act including s. 48
[excepting sub-ss. (6) and (8)] by the State Government. He
was not a nominee of the Registrar.
It will be noted from the above that the jurisdiction of the
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ordinary civil and revenue courts of the land is ousted
under s. 57
L4 Sup. Cl/67-12
170
of the Act in case of disputes which fell under S. 48. A
Registrar exercising powers under S. 48 must therefore be
held to discharge the duties which would otherwise have
fallen on the ordinary civil and revenue courts of the land.
The Registrar has not merely the trappings of a court but in
many respects he is given the same powers as are given to
ordinary civil courts of the land by the Code of Civil
Procedure including the power to summon and ;examine
witnesses on oath, the power to order inspection of docu-
ments, to hear the parties after framing issues, to review
his own ,order and even exercise the inherent jurisdiction
of courts mentioned in s. 151 of the Code of Civil
Procedure. In such -a case, there is no difficulty in
holding that in adjudicating upon a dispute referred under
s. 48 of the Act, the Registrar is to all intents and
purposes a court discharging the same functions and ,duties
in the same manner as a court of law is expected to do.
According to Halsbury’s Laws of England (Third Edition Vol.
9) at p. 342 :
"Originally the term "court" meant, among
other meanings, the Sovereign’s palace; it has
acquired the meaning of the place where
justice is administered and, further, has come
to mean the persons who exercise judicial
functions under authority derived either
immediately or mediately from the Sovereign.
All tribunals, however, are not courts, in the
sense in which the term is here employed,
namely to denote such tribunals as exercise
jurisdiction over persons by reason of the
sanction of the law, and not merely by reason
of voluntary submission to their
jurisdiction."
Again,
"The question is whether the tribunal is a
court, not whether it is a court of justice,
for there are courts which are not courts of
justice. In determining whether a tribunal is
a judicial body the facts that it has been
appointed by a non-judicial authority, that it
had no power to administer an oath, that the
chairman has a casting vote, and that third
parties have power to intervene are
immaterial, especially if the statute setting
it up prescribes a penalty for making false
statements; elements to be considered are (1)
the requirement for a public hearing, subject
to a power to exclude the public in a proper
case, and (2) a provision that a member of the
tribunal shall not take part in any decision
in which he is personally interested, or
unless he has been present throughout the
proceedings."
It is not necessary to examine the question at any great
length, because of certain authoritative pronouncements of
this Court.
171
In Brainandan Sinha v. Jyoti Narain(1) the question was,
whether a commissioner appointed under the Public Servants
(Inquiries) Act, 1850 was a court within the meaning of the
Contempt of Courts Act, 1952. There, after referring to
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authorities like Coke on Littleton and Stroud and Stephen,
the Privy Council decision in Shell Co. of Australia v.
Federal Commissioner of Taxation(2) and the earlier
decisions in Bharat Batik Limited v. Employees of Bharat
Bank Ltd.(4), Maqbool Hussain v. The State of Bombay(5) and
Cooper v. Wilson(5) it was observed :
"It is clear, therefore, that in order to
constitute a court in the strict sense of the
term, an essential condition is that the court
should have, apart from having some of the
trappings of a judicial tribunal, power to
give a decision or a definitive judgment which
has finality and authoritativeness which are
the essential tests of a judicial
pronouncement."
Reference was there made to the dictum of Griffith, C.J. in
Huddart, Parker & Co. v. Moorehead(6) where he said:
"I am of opinion that the words ’judicial
power’ as used in section 71 of the
Constitution mean the powers which every
sovereign authority must of necessity have to
decide controversies between its subjects, or
between itself and its subjects, whether the
rights relate to life, liberty or property.
The exercise of this power does not begin
until some tribunal which has power to give a
binding and authoritative decision (whether
subject to appeal or not) is called upon to
take action."
Reference may also be made to the decision of this Court in
Shri Virindar Kumar Satyawadi v. The State of Punjab(7).
There the question was, whether a returning officer acting
under ss. 33 and 36 of the Representation of the People Act,
1951 and deciding on the validity or otherwise of a
nomination paper was not a court within the meaning of ss.
195 (1) (b), 476 and 476-B of the Code of Criminal
Procedure. Here, too, the authorities which were cited in
the case of Brainandan Sinha’s case(1) were reviewed and it
was said :
"It may be stated broadly that what
distinguishes a court from a quasi-judicial
tribunal is that it is charged with a duty to
decide disputes in a judicial manner and
declares the rights of parties in a definitive
judgment. To decide in a judicial manner
involves that the parties
(1) [1955] 2 S.C.R. 955.
(3) [1950] 1 S.C.R. 459.
(5) [1937] 2 K.B. 309, 340.
(2) [1931] A.C. 275.
(4) [1963] S.C.R. 730.
(6) [1909] 8 C.L.R. 330, 357.
(7) [1955] 2 S.C.R. 1013 at 1018.
172
are entitled as a matter of right to be heard
in support of their claim and to adduce
evidence in proof of it. And it also imports
an obligation on the part of the authority to
decide the matter on a consideration of the
evidence adduced and in accordance with law.
When a question therefore arises as to whether
an authority created by an Act is a court as
distinguished from a quasi-judicial tribunal,
what has to be decided is whether having,
regard to the provisions of the Act it
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possesses all the attributes of a court."
This Court then went on to consider whether the functions
and powers entrusted to the returning officer under the Act
made, him a court. It was noted that under S. 36(2) of the
Act, the returning officer has to examine the nomination
paper and decide all objections which may be made thereto.
It was noted that the power was undoubtedly judicial in
character but the parties had no right to insist on
producing evidence which they might desire to adduce in
support of their case and there was no machinery provided
for the summoning of witnesses, or of compelling production
of documents and the returning officer was entitled to act
suo motu in the matter. The Court further remarked that in
a proceeding under S. 36 there was no lis in which persons
with opposing claims were entitled to have their rights
adjudicated in a judicial manner but the enquiry was such as
was usually conducted by an ad hoc tribunal entrusted with a
quasi-judicial power. Consequently it was held that the
returning officer deciding on the validity of a nomination
paper was not a court for the purpose of s. 1 95 (1) (b)
Cr.P.C. with the result that even as regards the charge
under s. 193, the order of the Magistrate was not appealable
as the offence was not committed in or in relation to any
proceedings in a court.
It will not be out of place to recapitulate what was said
in Cooper v. Wilson (1) and referred to in Brainandan
Sinha’s case (2). The passage runs thus :
"A true judicial decision presupposes an
existing dispute between two or more parties,
and then involves four requisites :- (1) The
presentation (not necessarily orally) of their
case by the parties to the dispute; (2) if the
dispute between them is a question of fact,
the ascertainment of the fact by means of
evidence adduced by the parties to the dispute
and often with the assistance of argument by
or on behalf of the parties on the evidence;
(3) if the dispute between them is a question
of law, the submission of legal arguments by
(1) [1937] 2 K.B. 309.
(2) [1955] 2 S.C.R. 955.
173
the parties; and (4) a decision which disposes
of the whole matter by a finding upon the
facts in dispute and an application of the law
of the land to the facts so found, including
where required a ruling upon any disputed
question of law."
In our opinion, all the above requisites are to be found in
this case. The question before the Assistant Registrar was
whether the appellant and Jagannath Jha had caused loss to
the bank and whether they were liable to compensate the bank
for it. This arose out of audit proceedings. There was a
written reference to the Registrar. There was a dispute
between the bank on the one hand and the appellant and
Jagannath Jha on the other to be decided with the assistance
of arguments and on the evidence adduced. The dispute was a
question of law dependent on the facts of the case and the
decision disposed of the whole matter by finding the
appellant liable for the entire amount. As we have already
remarked, the Assistant Registrar had almost all the powers
which an ordinary civil court of the land would have, of
summoning witnesses, compelling production of documents,
examining witnesses on oath and coming to a conclusion on
the evidence adduced and the arguments submitted. Under
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sub-r. (10) of r. 68 the parties could be represented by
legal practitioners. The result is the same as if a decree
was pronounced by a court of law. The adjudication of the
Assistant Registrar was not based upon a private reference
nor was his decision arrived at in a summary manner, but
with all the paraphernalia of a court and the powers of an
ordinary civil court of the land.
We were however referred to decisions of certain High Courts
in support of the contention that the Assistant Registrar
was not a court for the purposes of the Contempt of Courts
Act. the latest of these decisions is that of the Bombay
High Court in Malabar Hill Co-operative Housing Society v.
K. L. Gauba(1). There an application was made by the
society against one K. L. Gauba for the alleged contempt
committed by him on the Third opponent, a nominee of the
Registrar, appointed under s. 54 of the Bombay Co-operative
Societies Act, 1925. The facts of the case were as follows.
Gauba and his wife were members of the society and at the
material time were residing in two flats in one of the
society’s premises. The terms and conditions on which a
flat was allotted to the wife were that an initial payment
of Rs. 6.001 had to be made towards the qualifying shares of
the society and membership fees and thereafter a payment of
Rs. 580 per Mrs. Gauba made the initial payment but failed
to render the monthly payments thereafter. The society made
an application tinder s. 54 of the Act to the Registrar of
Co-operative
(1) A.I.R.1964 Bom. 147 at 152.
174
Societies relating to the dispute arising out of Mrs.
Gauba’s failure to make the monetary payments. The dispute
was referred to his nominee by the Registrar and the nominee
made an award directing Mrs. Gauba to pay a sum of Rs.
49,492-15 to the society. Being unable to recover the
money, the Society made another application to the Registrar
under S. 54 of the Act praying for a direction for eviction
of Mrs. Gauba from the flat in her occupation. The
Registrar, in exercise of his powers under S. 54 referred
this dispute to his nominee Mr. C. P. Patel (the third
opponent to the petition before the High Court). This case
was numbered as Arbitration Case of 1961. In this
arbitration case, Gauba appeared on behalf of his wife as
her agent. It appears that Mrs. Gauba could not be served
for some time and the case had to be adjourned on certain
occasions. After a number of adjournments, when the matter
was taken up on February 15, 1962, Gauba is alleged to have
abused Mr. Patel calling him "dishonest" and "a cheat". Mr.
Gauba contended before the High Court that on the date on
which he was said to have uttered the abuses Mr. Patel, in
law, had ceased to function as a nominee of the Registrar,
that the proceedings before Mr. Patel were in the nature of
arbitration proceedings, that Mr. Patel was not a court
within the meaning of the Contempt of Courts Act and lastly,
even if he was a court, he was not a court subordinate to
the Bombay High Court under sub-s. (2) of S. 3 of the
Contempt of Courts Act, the alleged contempt being an ex
facie contempt amounting to an offence under S. 228 I.P.C.
On the question as to whether Mr. Patel was functioning as a
court, the Bombay High Court came to the conclusion that the
tests laid down by this Court in Brajnandan Sinha’s case(1)
had not been satisfied. According to the learned Judges,
the Registrar’s nominee although possessing certain
trappings of a court, had no independent seisin over the
case and the power exercised by him was that of an
arbitrator enabling him to make an award. Such an award
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would not be equated with a judgement or a decision given by
a Court. The learned Judges relied strongly on the fact
that the Registrar had power to withdraw the dispute from
his nominee and that the latter was in duty bound to decide
the dispute within two months. All this, in the opinion of
the learned Judges, went to establish that the, proceedings
were those in arbitration and not before a court. After
referring to Brainandan Sinha’s case(1) and to Shell Co. of
Australia v. Federal Commissioner of Taxation (2) the
learned Judges concluded their judgment on this point
observing :
"Thus apart from the fact that the statute
refers to the decision of a nominee as an
award in express terms,
(1) [1955]2 S.C.R. 955.
(2) [1931] A.C. 275.
175
and a reference to him is a reference for his
arbitration, the provision of the Act relating
to the appointment of a nominee itself
indicates that the power, which a nominee
derives for deciding the dispute, is not a
power derived by him from the State."
The next decision referred to us was that of a single Judge
of the Allahabad High Court in Raja Himanshu Dhar Singh v.
Kunwar B. P. Sinha(1). In this case a dispute arising out
of certain resolutions passed by the Hind Provincial Flying
Club were referred to the Registrar of Co-operative
Societies under the provisions of the Co-operative Societies
Act of Uttar Pradesh and the Registrar delegated his powers
to the Assistant Registrar to arbitrate in the matter. The
Assistant Registrar issued an injunction that no further
meeting should be called and this direction was flouted and
disobeyed. The learned Judge came to the conclusion that
"only those arbitrators can be deemed to be courts who are
appointed through a court and not those arbitrators who
function without the intervention of a court."
In our opinion, neither of these decisions lays down any
reasoning which would compel us to hold that the Assistant
Registrar of Co-operative Societies in this case was not a
court. In the Bombay case, the matter was referred to the
Assistant Registrar as a nominee who had to act as an
arbitrator and make an award. So also in the Allahabad
case, the Assistant Registrar merely acted as an arbitrator.
In the case before us, the Assistant Registrar was
discharging the functions of the Registrar under s. 6(2) of
the Act under the authority of the State Government
delegating the powers of the Registrar to him.
It was sought to be argued that a reference of a dispute had
to be filed before the Registrar and under sub-s. 2(b) of s.
48 the Registrar transferred it for disposal to the
Assistant Registrar and therefore his position was the same
as that of a nominee under the Bombay Co-operative Societies
Act. We do not think that contention is sound merely
because sub-s. (2) (c) of s. 48 authorises the Registrar to
refer a dispute for disposal of an arbitrator or
arbitrators. This procedure was however not adopted in this
case and we need not pause to consider what would have been
the effect if the matter had been so transferred. The
Assistant Registrar had all the powers of a Registrar in
this case as noted in the delegation and he was competent to
dispose of it in the same manner as the Registrar would have
done. It is interesting to note that under r. 68 sub-r.
(10) of the Bihar and Orissa Cooperative Societies Rules,
1959 :
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"In proceedings before the Registrar or
arbitrator a party may be represented by a
legal practitioner."
(1) [1962] All. L. J. 57.
176
In conclusion, therefore, we must hold that the Assistant
Registrar was functioning as a court in deciding the dispute
between the bank and the appellant and Jagannath Jha.
Then comes the question as to whether the Assistant Regis-
trar was a court subordinate to the High Court. The
foundation ,of the contention of the learned counsel for the
appellant is provided by the difference in the wording of
Arts . 227 and 228 of ,the Constitution. Under sub-s. (1)
of S. 3 of the Contempt of Courts Act, 1952 every High Court
shall have and exercise the same jurisdiction, powers and
authority, in accordance with the same procedure and
practice, in respect of contempts of courts subordinate to
it as it has and exercises in respect of contempts ,of
itself. Sub-s. (2) lays down that the High Court shall not
take cognizance of a contempt alleged to have been committed
in respect of a court subordinate to it where such contempt
is an offence punishable under the Indian Penal Code. Under
Art. 227 every High Court shall have superintendence over
all courts land tribunals throughout the territories in
relation to which it exercises jurisdiction. Under Art. 228
if the High Court is satisfied that a cause pending in a
court subordinate to it involves a substantial question of
law as to the interpretation of the Constitution the
determination of which is necessary for the disposal -of the
case, it shall withdraw the case and may either dispose of
the case itself or determine the said question of law and
return the case to the court from which the case has been so
withdrawn. -On the basis of the difference in language
between these two Articles it was contended that the
legislature in passing the Contempt of Courts Act in 1952
must be taken to have contemplated the cognizance of
contempts of such courts only as would be covered by Art.
228 and not Art. 227. This has given rise to considerable
judicial conflict as we shall presently note. In Sukhdeo v.
Brij Bhushan(1) the question was whether the Panchayati
Adalats constituted under the U.P. Panchayat Raj Act, 1947
were courts within the meaning of the Contempt of Courts
Act. After an exhaustive analysis of the power of
superintendence of the High Courts under successive
Government of India Acts 1915, 1935 and the Constitution, a
Division Bench of the Allahabad High Court held that court,
after the Constitution, ]lad the same power of
superintendence which it had after the passing of the
Government of India Act, 1935 and that "in exercise of it
can check the assumption or excess of jurisdiction by
Panchayat Adalats or compel them to exercise their jurisdic-
tion and do their duty and they were therefore, judicially
subordinate to the Allahabad High Court." In re Annamalai(2)
the .,question was whether a civil revision petition against
an order ill
(1) A.I.R. 1951 All. 667.
(2) A.I.R. 1953 Mad. 362.
177
the nature of an award passed by the Deputy Registrar of Co-
operative Societies was entertainable by the High Court
acting under Art. 227 of the Constitution and there after
examining a number of authorities, a single Judge of the
Madras High Court concluded that the High Court had
revisional jurisdiction under Art. 227 by way of
superintendence over the judicial work of a duly constituted
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tribunal like the Deputy Registrar under the Co-operative
Societies Act. Of course, the question the court was
immediately concerned with there was the scope of the power
of superintendence, and it was observed that :
"Superintendence includes power to guide, and
encourage Judges of the subordinate Courts, to
direct subordinate courts and tribunals to
carry out its orders; and to direct enquiry
with a view to take disciplinary action for
flagrant maladministration of justice."
It was not necessary for the purpose of that case to take
note of the difference, if any, between the words
’superintendence’ and ,subordination’. In Kapur Singh v.
Jagat Narain(1) a Division Bench of the Punjab High Court
took the view that "superintendence’ would include the power
to deal with a content of court of a kind not punishable by
the Court of the Commissioner itself appointed to hold an
inquiry under Public Servants Inquiries Act, 1850) and that
for the purpose of the Contempt of Courts Act the word
"subordinate" would include all courts and tribunals over
which the High Court is given the power of superintendence
under Art. 227 of the Constitution." In Lakhana Pesha v.
Venkatrao Swamirao(1) the question was, whether the Chief
Judge of the Court of Small Causes acting as persona
designate under the Bombay Municipal Act was a court
subordinate to the High Court for the purpose of ss. 2 and 3
of the Contempt of Courts Act. Chagla, C.J. took the view
that
"the power of superintendence conferred upon
the High Court under Art. 227 is clearly not
only administrative but also judicial and the
restriction imposed upon the High Court by s.
224(2), Government of India Act is thereby
removed. Now, the power of judicial
superintendence which has been conferred upon
the High Court is in respect not only of
courts but also of Tribunals throughout the
territories in relation to which the High
Court exercises jurisdiction, and the question
that arises is whether in view of this
constitutional position it could not be said
of a ’persona designata’ that it is a court
subordinate to the High
Court.
(1) A.I.R. 1951 Punjab 49.
(2) A.I.R. 1955 Bombay 163.
178
Now, the subordination contemplated by
S. 3 is a judicial subordination and there can
be no doubt that the Chief Judge, although he
is a persona designata’, is a tribunal which
would fall within the purview and ambit of
Art. 227."
Further, according to the learned Chief Justice there was no
reason or principle on which any distinction could be drawn
between a civil court which was subordinate to the High
Court and a tribunal which was subordinate to the High Court
under Art. 227 of the Constitution.
The nature of jurisdiction exercised by the High Court under
Art. 227 of the Constitution was gone into at length by a
Full Bench of the Patna High Court in Budhi Nath Jha v.
Manilal Jadav (1). There it was observed that
"It is also apparent that the power of
revision conferred upon the High Court under
Art. 227 of the Constitution is similar in
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nature to the appellate power of the High
Court, though the power under Art. 227 is
circumscribed by various limitations. These
limitations, however do not affect the
intrinsic quality of the power granted under
Art. 227 of the Constitution, which is the
same as appellate power."
The learned Chief Justice of the Patna High Court relied to
a very great extent on a passage from Story reading :
"The essential criterion of appellate
jurisdiction is, that it revises and corrects
the proceedings in a cause already instituted
and does not create that cause. In reference
to judicial tribunals an appellate
jurisdiction, therefore, necessarily implies
that the subject matter has been already
instituted and acted upon by some other court,
whose judgment or proceedings are to be
revised."
For the purpose of this case, it is not necessary to
decide whether revisional jurisdiction is the same as the
appellate jurisdiction but it is enough to hold that under
Art. 227 of the Constitution, the High Court exercises
judicial control over all courts and tribunals functioning
within the limits of its territorial jurisdiction.
Our attention was drawn to a judgment of the Allahabad High
Court in State of Uttar Pradesh v. Ratan Shukla(2). There
proceedings were instituted against the respondent, a vakil
practising in the District Judgeship of Kanpur, on a report
made by the District Judge, Kanpur on being moved by the
Additional District Magistrate of Kanpur in whose court the
alleged contempt
(1) A.1,R. 1960 Patna 361.
(2) A.I.R. 1956 All. 258.
179
was committed by the Opposite party. There both the Judges
were of opinion that the act of the opposite party did not
amount to contempt of court, and Beg. J. did not g0 into
the question as to whether the authority where the contempt
of court was said to have been committed was acting as a
court or not. Desai, J. however relying to a large extent,
on the language of Arts. 227 and 228 of the Constitution
held that the Magistrate even if he was acting as a court
was by no means, in the circumstances, a court subordinate
to the Allahabad High Court.
In our opinion, Art. 228 of the Constitution does not
indicate that unless a High Court can withdraw a case to
itself from another court for disposing of a substantial
question of law as to the interpretation of the
Constitution, the latter court is not subordinate to the
High Court. This Article is only intended to confer
jurisdiction and power on the High Court to withdraw a case
for the purpose mentioned above from the ordinary courts of
law whose decision may, in the normal course of things, be
taken up to the High Court by way of an appeal. Art. 227 is
of wider ambit; it does not limit the jurisdiction of the
High Court to the hierarchy of courts functioning directly
under it under the Civil Procedure Code and Criminal
Procedure Code but it gives the High Court power to correct
errors of various kinds of au courts and tribunals in
appropriate cases. Needless to add that errors as to the
interpretation of the Constitution is not out of the purview
of Art. 227 although the High Court could not, under the
powers conferred by this Article, withdraw a case to itself
from a tribunal and dispose of the same, or determine merely
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the question of law as to the interpretation of the
Constitution arising before the tribunal. In our view, the
subordination for the purpose of s. 3 of the Contempt of
Courts Act means judicial subordination and not
subordination under the hierarchy of courts under the Civil
Procedure Code or the Criminal Procedure Code.
It may not be out of place to note that "subordinate courts"
have been dealt with in Chapter VI of the Constitution and
Art. 235 of the Constitution gives the High Court "the
control over District Courts and courts subordinating
thereto" by providing for powers like the posting and
promotion, and the grant of leave to persons belonging to
the judicial service of a State. Such control is not
judicial control and a court may be subordinate to a High
Court for purposes other than judicial control. Even before
,"tie framing of the Constitution s. 2 of the Contempt of
Courts Alit, 1926 made express provision giving the High
Courts in India the same jurisdiction, power and authority
in accordance with the same practice and procedure in
respect of contempt of courts subordinate to them as they
had in respect of contempts of themselves. The preamble to
the Act shows that it was
180
enacted for the purpose of resolving doubts as to the powers
of High Courts to punish contempts of courts and to define
and limit the powers exercisable by the High Courts and
Chief Courts in punishing contempts of court. The Contempt
of Courts Act, 1952 repealed the Act of 1926 and reenacted
the provisions thereof in substantially the same language.
In England "the Queen’s Bench Division has a general
superintendence over all crimes whatsoever and watches over
the proceedings of inferior courts, not only to prevent them
from exceeding their jurisdiction or otherwise acting
contrary to law, but also to prevent persons from
interfering with the course of justice in such courts" :
(See Halsbury’s Laws of England-Third Edition), Vol. 8, page
19.
Generally speaking "any conduct that tends to bring the
authority and administration of the law into disrespect or
disregard or to interfere with or prejudice party litigants
or their witnesses during their litigation" amounts to
contempt of court : see Oswald on Contempts page 6. In order
that courts should be able to dispense justice without fear
or favour, affection or ill-will, it is essential that
litigants who resort to courts should so conduct themselves
as not to bring the authority and the administration of law
into disrespect or disregard. Neither should they exceed
the limits of fair criticism or use language casting
aspersions on the probity of the courts or questioning the
bona fides of their judgments. This applies equally to all
Judges and all litigants irrespective of the status of the
Judge, i.e., whether he occupies one of the highest judicial
offices in the land or is the presiding officer of a court
of very limited jurisdiction. It is in the interests of
justice and administration of law that litigants should show
the same respect to a court, no matter whether it is highest
in the land or whether it is one of inferior jurisdiction
only. The Contempt of Courts Act, 1952 does not define
’contempt’ or ‘ courts’ and in the interest of justice any
conduct of the kind mentioned above towards any person who
can be called a ’court’ should be amenable to the
jurisdiction under the Contempt of Courts Act, 1952. It
must be borne in mind that we do not propose to lay down
that all Registrars of all Co-operative Societies ’in the
different States are "courts" for the purpose of the
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Contempt of Courts Act, 1952. Our decision is expressly
limited to the Registrar and the Assistant Registrar like
the one before us governed by "he Bihar and Orissa Co-
operative Societies Act.
The second point also fails and the appeal is dismissed.
G.C. Appeal dismissed.
181