G. Mehrotra, C. J.
1. On two reports submitted by Mr. M. C. Pathak, Advocate who was appointed Commissioner in Civil Rules No, 195-198/62 by this Court, notices were issued to Mr. K. E. Johnson, Commissioner of Income-tax, Assam, Tripura and Manipur and Mr. M. V. K. Warriar, Inspecting Assistant Commissioner of Income-tax, Shillong to show cause why they should not be dealt with under the Contempt of Courts Act. This notice was issued on the 24th July, 1963. Mr. Pathak submitted two reports, one dated the 19th July, 1963 and the other dated the 23rd July, 1963. In response to the notice issued by this Court an affidavit has been filed by Mr. K. E. Johnson, Commissioner of Income-tax and another affidavit has been filed by Mr. M. V. K. Warrior. The case was fixed for hearing on the 30th August, 1963. On that date the case was adjourned and the two affidavits mentioned above were filed. this Court however, ordered Mr. Pathak to file an affidavit in support of his reports and a copy of the said affidavit was to be supplied to Mr. Talukdar who appeared for the alleged condemners. In obedience to the order of this Court Mr. Pathak filed an affidavit copy of which was served on Mr. Talukdar on the 2nd September, 1963. The case was again taken up on the 4th September 1963 and was adjourned on the request of Mr. Talukdar. Certain applications were filed by the parties to the civil rules and they were ordered to be put up with the record of the case.
2. The circumstances under which this notice was issued may be briefly set out. A number of petitions were filed in this Court under Article 226 of the Constitution challenging the validity of the action taken by the Commissioner of Income-tax and various other Income-tax Officers under Section ion 37(2) of the Income-tax Act. By the order of the Commissioner of Income-tax the Income-tax authorities were directed to seize and search the books and properties of the various applicants. The case was heard by a Special Bench of this Court and the petitions were allowed. The action taken by the Commissioner was set aside and this Court further ordered the opposite parties to the proceedings not to give effect to the seizure of the said books and documents in any way and further directed the opposite parties to return forth. with the books and documents seized on the March 1962. During the course of the proceedings, this Court passed an interim order appointing Mr. M, C. Pathak who was the then Junior Government Advocate as Commissioner with the direction to go to Shelling and keep the books, documents and papers seized by the Income-tax Department in trunks under lock and key, if necessary with the seal of the parties.
In pursuance of this interim order Mr. Pathak went to Shelling, put the documents and papers in trunks and locked them up. On the lock which was put in a room where these trunks were kept and which were within the precincts of the Income-Tax Office, the Income-tax authorities also put their seal. After the case was decided Mr. Pathak. was supplied with a copy of the operative portion of the order on the 17th July, 1963. The operative portion of the order runs as follows:
These petitions are allowed with costs. The warrants of authorization dated 7-3-62 are quashed and the opposite parties are directed not to in any way give effect to the seizure of the said books and documents effected on 11-3-62 or take any steps there under. The opposite parties are further directed to return forthwith the books and documents seized on 11-3-62.
As disclosed in the report of Mr. M. C. Pathak. dated the 19th July 1963 submitted in obedience to the order of this Court dated the 15th. July, 1963 conveyed to him by Memo No. 3278-79 R.M. dated 17-7-63, he went to Shelling on the 18th-July 1963 and met Mr. K. E. Johnson, the Commissioner of Income-tax, Assam. In the report Mr. Pathak alleged that Mr. Johnson refused to allow him to take possession of the trunks and told him that as the order of this Court was not served on him, he was not in a position to allow him to take possession of the books. After Mr. Pathak gave his report on the 19th July this Court directed the service of the order on the Commissioner and further directed Mr. Pathak to proceed to Shelling to take the custody of the account books and deliver them to the applicants in the civil rules, Mr. Patak, as set out in his second report dated 23-7-63 went to Shelling on the 22nd July 1963 with a view to return the seized books to the petitioners in civil rules. On reaching the office of the Income-tax Commissioner he found that the Commissioner was not there and was told that he had gone out of station. He thereupon wanted to meet the Inspecting Assistant Commissioner and he was informed that he could meet him at 1 P.M. At 1 P.M. he met Mr. M. V. K. Warriar, the Inspecting Assistant Commissioner of Income-tax in the office and presented a letter to him. The Inspecting Assistant Commissioner told him that the Commissioner was away. After a while Mr. Warriar left his room telling Mr. Pathak that he would return within ten minutes. Mr. Pathak, however, waited there till 2-10 P.M. but Mr. Warriar did not turn up. Mr. Pathak asked the office people to search for him but they could not inform him where he bad gone and he left for Gauhati at 2-15 P.M.
3. The order by which Mr. Pathak was appointed as the Commissioner reads as follows:
Further we appoint Mr. M. C. Pathak, Junior Government Advocate as Commissioner. He will proceed to Shelling tomorrow and get all the books papers and documents in the custody of the Income-tax Department kept in a trunk of trunks sealed. The lists of books, papers and documents are Annexure 'F' to the petition of Senairam Doongarmal Agency Private Ltd., Annexure 'A' in the petition of Gordhandas Mahe-swari and Jashbhai Patel and Annexure 'C in the petition of Lohia Brothers (Private) Ltd.
The Commissioner went to the office of the Income-tax Department, Shelling and put the books, papers and documents in 18 Steel trunks, locked them and put his seal as well as the seals of the Income-tax Department and the petitioners. AIR the 18 trunks containing all the papers, documents and books were kept in the custody of the Income-tax Department, Shelling office. The keys of the locks of the trunks were kept with the Commissioner. The room in which the trunks were kept was also locked and sealed with the Commissioner's seal and the seals of the petitioners and the Income-tax Department and the key was kept with the Commissioner.
4. The operative portion of the order passed by the Special Bench by which the petitions under Article 226 of the Constitution were finally disposed of reads as follows:
These petitions are allowed with costs- The warrants of authorization dated 7-3-62 are quashed and the opposite parties are directed not to in any way give effect to the seizure of the said books and documents effected on 11-3-62, or take any steps there under. The opposite parties are further directed to return forthwith the books and documents seized on 11-3-62.
Under the orders of this Court the documents seized on the 11th March 1962 had to be returned to the petitioners forthwith. As the keys of the locks put on the trunks in which the books were kept and the room in which the trunks were kept were with the Commissioner the Commissioner was served with this order to effect expeditiously the delivery of these documents to the petitioners. Although the Commissioner in pursuance of the orders of this Court kept the books in the trunks and the keys of the trunks and the room were kept with him, still the trunks were put in the room inside the premises of the Income-tax Office and the trunks and the room were sealed with the seal of the Income-tax Department. It was therefore not possible for the Commissioner to comply with the orders of this Court and hand over the books to the petitioners without the help and assistance of the Income-tax authorities. In fact the documents were under the effective control of the Income-tax Department. It was for this reason that the Commissioner went to Shelling and requested the Income-tax authorities to assist him in carrying out the orders of this Court.
5. When the Commissioner Mr. Pathak went to Shelling on the 18th July, 1963, he gave a written letter to the Commissioner of Income-tax. In this letter he clearly stated that he had come to deliver the books and documents which were seized and taken over possession by him as Commissioner appointed by the High Court to the parties and which were kept in a room of the Income-tax Office at Shelling under lock and seal. He asked the authorities to help him in executing the order of the Court. The order which was served on him was shown by him to the Income-tax Commissioner. In paragraph 5 of the Affidavit filed in support of the two reports Mr. Pathak has stated as follows:
That in obedience to the order of the How’ll High Court dated 15-7-63 conveyed in Memo. dated 17-7-63 I went to Shelling on 18th July, 1963 and met Mr. K. E. Johnson, the Commissioner of Income-tax, Assam Shelling in his office room at 10.45 A.M. I told Mr. K. E. Johnson, the Commissioner of Income-tax, Assam, Shelling that the How’ll High Court of Assam had passed final orders in Civil Rules No. 195-198 of 1962 on 15-7-63, a copy of which had been served on 17-7-63 to me as the Commissioner appointed by the How’ll High Court in these matters. I further told him that the How’ll High Court had directed to return forthwith the books and documents seized on 11-3-62. That as the seized books, documents and papers. were under orders of the How’ll High Court put in 18 trunks, locked and sealed and kept in custody of the Income-tax Department at Shelling by me as the Commissioner appointed by the. High Court and as the keys of the locks were with me. I had come to assist in execution of the aforesaid order of the How’ll High Court. Then I showed him the order dated 15-7-63 of the. Hon'ble High Court, which was served on me.
Mr. K. E. Johnson perused the order dated 15-7-63 passed in Civil Rules No. 195-198 of 1962 by the How’ll High Court but he told me that he could not return the books, documents and papers in question to parties unless the order of the High Court was served on him personally. I therefore filed an application to this effect with a typed copy in the Income-tax Office, Shillong and obtained a receipt therefore.
6. In the affidavit filed by Mr. Johnson he has stated ia paragraph 4 (b), (e), (f) and (g) as follows:
4. That with reference to the report dated the 19th July, 1963 and without prejudice to my submission that the same is not legal evidence, I say as follows:
(b) That I went that day (18-7-63) to the office at about 10 A.M. to look into the day's mail and to attend to other urgent works and at about 11-15 A.M. when I was at the point of leaving my office the Court Commissioner sent in his card and was asked to come. The Court Commissioner said that he had received order from this How’ll Court regarding the books and documents which had earlier been seized by the Income-tax Department and which were taken possession by him in pursuance of order of this How’ll Court, whereupon I told him that he had come without any previous intimation and that too when I was about to leave. I also told him that I had not received any order from this How’ll Court till then. The 'Court Commissioner' then produced a paper said to be the copy of the order passed by this How’ll Court and said 'I take it that you refuse. Kindly give your refusal in writing.' I then told the 'Court Commissioner' that there was no question of giving any refusal in writing whereupon the 'Court Commissioner' took a sheet of paper and started writing an application. By that time it was approximately 11-30 A.M. and as there were barely 20 minutes to catch the 11-50 A.M. gate (sic) I left the office requesting the 'Court Commissioner' to submit to the office whatever application he was writing.
(e) That the seized books and documents in question had been taken possession of by the 'Court Commissioner' as early as in May, 1962 in pursuance of the order dated the 25th May, 1962 passed by this How’ll Court in the aforesaid Civil Rules; the Court Commissioner had also placed the same in steel trunks and locked and sealed the same as directed by this How’ll Court. The sealed trunks were placed in a room which was also locked and sealed by him. The keys to the lock of the room as well as the keys to the locks on the trunks have ever since been in the custody of the 'Court Commissioner'.
(f) That in the circumstances I am at a loss to know what the 'Court Commissioner' expected of me as the Commissioner of Income-tax.
(g) That I was also not present at the time when the books and documents in question were taken possession of by the 'Court Commissioner' sometime in May, 1963.
The stand taken by the Income-tax Commissioner is that the. books and documents were all kept in the trunks on which the Commissioner put his locks and seal and the room in which the trunks were kept was also locked and sealed by the Commissioner and the keys of the trunks and the room were in the Commissioner's custody and thus the documents were in the custody of the Commissioner in his report and the affidavit, when could not in any way help him in executing the orders of this Court. In effect the contention is that the documents were not in possession of the Income-tax Commissioner. As disclosed by the Commissioner in his report and the affidavit, when he was appointed Commissioner, he went to the office of the Income-tax Department, Shelling and put the books, papers and documents in the trunks, locked them, and put his seal and the seals of the Income-tax Department and the petitioners. The room in which the trunks were kept was also locked and sealed with his seal and the seals of the petitioners and the Income-tax Department. The room was within the precincts of the Income-tax Office. Under these circumstances even though the keys were in the possession of the Commissioner the trunks containing the books could not be removed without the help and assistance of the Commissioner of Income-tax under whose control the room was.
The Commissioner in his letter has clearly stated that he wanted the assistance of the Department to carry out the order of the High Court. The Commissioner of Income-tax is therefore, not justified in saying that no assistance from him was required for the execution of the order of this Court. Besides this, Mr. Pathak in the affidavit filed in support of the report has clearly stated that the Commissioner told him that he could not deliver the books to the parties unless the order of this Court was served upon him. This statement has not been specifically denied in the affidavit filed by the Commissioner of Income-tax. He has admitted that he told Mr. Pathak that the order of the High Court has not been served on him. If the Commissioner of Income-tax was of opinion that the books and documents were in the custody of the Court Commissioner and he was at a loss to understand what assistance he could give to the Commissioner, there was no reason why he should have told the Commissioner that the order of the High Court has not been served, on him. This remark of his can only be consistent with the statement of the Commissioner that the Jncometax Commissioner told him that as the order of the High Court has not been served on him he would not allow the books to be delivered to the parties.
7. The counsel for the Income-tax Commissioner has very strenuously urged that the proceedings were not properly initiated in the present case. There was no affidavit in support of the report. The report was submitted to this Court by the Commissioner and on the report notices were issued to the Income-tax Commissioner. In-response to the notice he filed an affidavit. Thereafter the Commissioner was asked to file an affidavit in support of his report which he did. A copy of this affidavit was served on the counsel for the Income-tax Commissioner. Thus he had sufficient opportunity to rebut the allegations-made in the affidavit filed by Mr. Pathak. Not having availed of the opportunity to controvert the facts alleged in the affidavit he cannot now deny the truth of the allegations made in the affidavit filed by Mr. Pathak, nor can he make any grievance that sufficient opportunity was not given to him to meet the allegations made in the affidavit filed by Mr. Pathak.
8. Along with the notice issued by this Court the copies of the reports were sent to the Income-tax Commissioner. We had full knowledge of the allegations made by the Commissioner. Firstly it is argued that the charge of contempt is based on the ground that the Income-tax Commissioner violated the orders of this Court and as the order was not a prohibitory order, such an order could not be effective unless it was Served on the condemner. The condemner was justified thus in asking for the service of the order on him. Secondly it is urged that as the books were in the custody of the Commissioner by merely asking the Commissioner to serve the order of this Court on him the Income-tax Commissioner cannot be said to have obstructed the Commissioner in carrying out the orders of this Court. In this connection the allegation made by the Commissioner in his affidavit that the Income-tax Commissioner told him that he would not allow the books to be delivered to the parties unless the order was served was denied.
9. The counsel for the Income-tax Commissioner has referred to the case of N. Baksi v. O. K. Ghosh, reported in (S) AIR 1957 Pat 528 in support of his contention that a mandatory order cannot be effective unless it is served on the person concerned. In the case of Dwijendra Krishna v. Surendra Nath reported in AIR 1927 Cal 548 the law has been summarised as follows and the counsel has very strongly relied on this passage:
In order to found an application for attachment or committal for disobedience of an order, service of the order alleged to have been disobeyed has to be proved as a sine qua non. The rules as to service are very stringent under the English Law and personal service is insisted on except in certain excepted or special cases. Personal service may be dispensed with if it is shown that the person to be served has evaded service and the fact that the person ordered to do the act was actually in Court when the order was made is not a ground for dispensing with such personal service.
The following passage in Oswald's Contempt of Court at page 203 may be referred to: --
In order to justify committal for breach of a prohibitive order it is not necessary that the order should have been served upon the party against whom it has been granted if it be proved that he had notice of the order aliened, as by telegram or newspaper report, or otherwise and knew that it was intended to be enforced or if he consented to the order, or if he was present in Court when the order was pronounced, or when the motion was made, although he left before the order was pronounced.
If a person is to be convicted for the breach of a mandatory order it is essential that the order should be served on the person concerned. But in the case of a prohibitory order where a person is prohibited from doing a wrong which he has already commenced doing service may not be necessary.
10. The next case referred to is Dulal Chandra Bhar v. Sukumar Banerjee, reported in : AIR1958Cal474 . We do not think that this case is of much assistance in deciding the point at issue before us.
11. this Court in the writ petition directed that the warrants of authorization are quashed and further the opposite parties were directed not to in any way give effect to the seizure of the books and documents concerned effected under the aforesaid order. This order in effect prohibits the opposite parties from keeping the documents in their possession any further and the possession will be illegal after the passing of the order of this Court. In these circumstances when the Income-tax Commissioner was a party to these proceedings, no further personal service of the order was necessary on the Income-tax Commissioner. If the books were in the custody of the Commissioner there was no reason why the Income-tax Commissioner should have refused to allow the Commissioner to deliver the books to the petitioners as directed by this Court.
12. The counsel for the Income-tax Commissioner has very strenuously contended that the Commissioner of Income-tax did not say to the Commissioner that he would not permit the account books to be delivered to the petitioners. He only asked for the service of the order. As I have said the Commissioner has categorically stated in his two reports that the Income-tax Commissioner told him that he will not allow the books to be handed over to the petitioners and further the reports were supported by affidavit by him. Although the Income-tax Commissioner had ample opportunity, this allegation has not been specifically denied in his affidavit, nor has the Income-tax Commissioner filed any supplementary affidavit after he was served with a copy of the affidavit filed by the Commissioner. This act of the (Income-tax) Commissioner was calculated to obstruct the Commissioner in the discharge of his duty. The counsel for the Income-tax Commissioner also faintly urged that the proceedings were not properly initiated as the report which is filed by the Commissioner on which this Court issued rule to the Income-tax Commissioner was not supported by any affidavit and thereafter the Commissioner was asked to file an affidavit which he did. The condemner had ample opportunity to meet the allegations in the affidavit and we do not think that there is any force in the contention that the proceedings were not properly initiated. We therefore think that he is guilty of the contempt of Court.
13. As regards Mr. M. V. K. Warriar, the Inspecting Assistant Commissioner of Income-tax. On the 18th July 1963 the Commissioner went to Shelling. Only the Incometax Commissioner met him and told him that he cannot allow the books to be delivered to the parties without the copies-being served on him. The Commissioner does not say in his report that on the 18th July Mr. M. V. K. Warriar was present when the Commissioner had a talk with the Income-tax Commissioner. The allegation of the Commissioner in his second report is that on the 22nd July 1963 when he went to the office of the Income-tax Commissioner, he was away. Then be desired to meet the Inspecting Assistant Commissioner of Income-tax and only met him at .1 P.M. He only said that the Commissioner of Income-tax was away from the station and the Commissioner said that-the Income-tax Officer. Shelling might help in the matter as the books etc. Were put in trunks and the locks were sealed with his seal on behalf of the Income-tax Department. After that the Inspecting Assistant Commissioner left his room telling the Commissioner that he would return within ten minutes. But up to 2-10 P.M. he did not turn up. Mr. Warriar has filed a counter-affidavit in which he says that he could not come in time as his wife was ill. He got information about the illness of his wife and had to attend to it. We do not think that his conduct at all amounts to any interference with the work of the Commissioner or that he refused to hand over the books to the Commissioner. Notice against him is thus discharged.
14. We have also perused the affidavit filed by Mr. K. E. Johnson, the Income-tax Commissioner and we do not think that the affidavit contains any unconditional apology. We accordingly find him to be guilty of contempt of Court and sentence him to pay a fine of Rs 250.00 in default fifteen days simple imprisonment. The fine is to be deposited on or before the 6th January, 1964.
C.S. Nayudu, J.
15. I am fully in agreement with the judgment and order just now pronounced by my lord the Chief Justice, but would wish to add a few words of my own.
16. The first condemner Mr. K. E. Johnson in reply to the rule issued against him by this-Court placed reliance on two contentions firstly that he did not allow or assist the Commissioner, who went to see him with the orders of this Court, to remove the books, documents etc. kept for safe custody in the first condemner’s office as he was not served with a copy of the decision and order of this Court in the civil rules in question, which decision and order directed him to forthwith return the books and documents seized by the Income-tax Officers under the orders of the first condemner and secondly that as the Commissioner was in possession and custody and control of the documents etc. Under the orders of this Court, there was nothing for him to do in the matter and he could not be blamed if the Commissioner did not take away the books and documents in question.
17. It has to be noticed at the outset that these two contentions are mutually repugnant. For if the Commissioner of Income-tax, the first condemner had no control over the books, documents etc. In question it was obviously meaningless for him to have refused to co-operate with the Commissioner in taking away the books etc. On the ground that he had not been served with the orders of this Court and that, therefore, he would not let the Commissioner take away the documents etc.
18. Examining the first contention relied on by the first condemner, it has to be noticed that he was a party to the proceedings before this Court out of which the decision and order, in pursuance whereof the Commissioner had come to take away the book and documents etc, were passed. In fact he was a material party and had strongly contested the rule issued in the cases being made absolute. When the judgment of this Court was pronounced in the matters the advocate for the first condemner was present in Court to take the judgment. It would therefore, be idle to contend either that the first condemner was not aware of the orders of the Court or that a formal service of the order on him was necessary before he could obey the same. If knowledge or notice is the determining factor, the first condemner had enough of it. In fact, as admitted by him in an affidavit filed in connection with these proceedings, he having come to know of the decision of this Court, was in touch with the authorities concerned in the Central Government with a view to the filing of an appeal against the decision of this Court and obtaining orders for stay therefore.
In my considered opinion it is not open to a party to a proceeding in which an order of the Court whether in the nature of a prohibitory order or in the nature of a mandatory order had been issued against him, to refuse to obey the order on the pretext that he had not been personally served with a copy there of. When notice is given that the judgment in a matter is to be pronounced and the counsel on either side are present in Court to take the judgment and the orders of the Court had been passed and pronounced in open Court, no further service of the order of the Court on the parties in the matter, is necessary under law. It would in such a case be the duty of the party, if he does not wish to be in contempt, to carry out implicitly and faithfully, as in duty bound, the orders of the Court. Hence, I see no force whatsoever in the first contention raised by the first condemner.
19. For the sake of completeness it may also be mentioned that the Commissioner Mr. Pathak was an officer of the Court a fact which was in the knowledge of the first condemner and the former had produced the order of this Court bearing the seal of this Court before the first condemner. It was obviously highly improper in the context, for the first condemner, to have ignored the same and refused to comply with the order particularly when he had already the knowledge of the decision of the Court having gone against him and was taking steps to file an appeal against the decision.
20. As regards the second contention, it is obvious that it has no force either. Although the Commissioner had the keys for the room as well as the trunks in which the documents etc., were kept, the room having been located inside the first condemner’s office and the first condemner having affixed also his seals to the trunks containing the documents etc., along with the parties who filed the civil rules in question, it is obvious that the Commissioner could not have access to the room in question without the co-operation of the first condemner. If really the first condemner claims to be as innocent as he purports to be in his affidavit, the most obvious thing that he should have done even within the short time at his disposal, was to let the Commissioner have access to the room and to extend all necessary facilities to him to have the trunks in question removed from the room. Instead of this what we find from the affidavit filed by the Commissioner Mr. Pathak in this case which is not controverter is that the first condemner refused to let the Commissioner take away the books documents etc. This has the direct effect of a flagrant flouting of the orders of this Court. The mere fact that this may apparently have been done with the ostensible object of gaining time, so that he could rush to Delhi have an appeal preferred and obtain the necessary stay orders, so that the documents etc., may not be taken away from the room in question cannot in any way mitigate the gravity of the contempt committed. In either case the first condemner was clearly in contempt of the orders of this Court and has, therefore, necessarily to be found guilty.
21. It is surprising that no attempt has been made by the first condemner even to tender an apology for his contumacious conduct. Barring a bare assertion that he is aware that the orders of this Court had got to be obeyed by him and, therefore, it could never have been his intention to disobey or flout that order, there is nothing to indicate anything in the feature of penitence or contrition in the affidavit filed by the first condemner. We have necessarily to allow the law to take its course and the matter assumes a more serious complexion in view of the circumstance that the first condemner is a senior officer holding the responsible office of the head of a department. I therefore, entirely agree with the sentence pro. posed by my Lord the Chief Justice.
22. As regards the second condemner Mr. Warrior, I agree that the Rule issued against him be discharged. At the same time it is necessary to notice that the conduct of this officer in keeping the Commissioner waiting in his office indefinitely having assured him that he would be coming back in a few minutes, shows utter lack of propriety and consideration unbecoming of an officer of responsibility.
S.K. Dutta, J.
23. I have had the opportunity of reading the judgment of my Lord the Chief justice and I agree with the views expressed by him. I have nothing to add.