Skip to content


Adarsh Toddy Kamgar Sahakari, Sanstha, Nagpur and ors. Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1977CriLJ1809; 1977MhLJ508
AppellantAdarsh Toddy Kamgar Sahakari, Sanstha, Nagpur and ors.
RespondentState of Maharashtra and ors.
Excerpt:
- - in substance it is the grievance of the petitioners that in spite of the specific direction issued by this court, the respondents failed to carry out the said direction and thereby committed wilful disobedience of the order passed by this court. 5. to these petitions, apart from the state of maharashtra, the collector of the district concerned as well as the superintendent of prohibition and excise are joined as parties. 6. from the affidavits filed by the superintendent of prohibition and excise, nagpur as well as bhandara, it appears that it is their contention that after the copy of the interim order was received, they allowed the petitioners to continue their business. 7. the averments made in these affidavits as well as the letter issued by the additional government pleader.....dharmadhikari, j.1. as all these petitions involve common questions of law and fact they were heard together and are being disposed of by this common judgment.2. it appears from the record that the various petitioners in these contempt petitions have filed special civil applications against the respondents for issue of suitable writ, order or direction to quash and set aside condition no. 16 contained in the circular dated 7th december 1976, as, according to them, it was illegal and arbitrary. in those special civil applications, the petitioners, besides other prayers, prayed for interim orders in terms of prayer clause (e) which reads as under :that pending the decision of the present petition by a suitable writ, order or direction interim, the respondent no. 2 be directed to continue.....
Judgment:

Dharmadhikari, J.

1. As all these petitions involve common questions of law and fact they were heard together and are being disposed of by this common judgment.

2. It appears from the record that the various petitioners in these contempt petitions have filed Special Civil Applications against the respondents for issue of suitable writ, order or direction to quash and set aside condition No. 16 contained in the Circular dated 7th December 1976, as, according to them, it was illegal and arbitrary. In those Special Civil Applications, the petitioners, besides other prayers, prayed for interim orders in terms of prayer Clause (e) which reads as under :

That pending the decision of the present petition by a suitable writ, order or direction interim, the respondent No. 2 be directed to continue the licences of the petitioners granted under Sub-rule (1) of Rule 30 of the Maharashtra Country Liquor Rules, 1973.

It further appears that these petitions came up for hearing before the Vacation Judge between 28th to 31st December 1976 and the Vacation Judge passed the following order :

Rule. Ad interim order as in prayer (e).

In pursuance of this order passed by the Single Judge of this Court a writ was issued to the respondents in the following terms ;

It is accordingly ordered and directed that the licenses granted to the petitioners under Sub-rule (1) of Rule 30 of the Maharashtra Country Liquor Rules, 1973 be and the same is hereby continued pending the hearing and final disposal of this Special Civil Application or until further orders.

3. It is the case of the petitioners that they immediately served these orders upon the respondents even prior to 31st Dec. 1976 when these licences were due to expire, except in Contempt Petition No. 6 of 1977, wherein such a copy was served on the respondents on 7-1-1977. According to the petitioners in spite of the service of the ad interim order passed by this Court, the respondents did not renew their licences, nor issued any authority or letter on the basis of which they could continue their business. In substance it is the grievance of the petitioners that in spite of the specific direction issued by this Court, the respondents failed to carry out the said direction and thereby committed wilful disobedience of the order passed by this Court.

4. In these contempt petitions a grievance is also made by the petitioners that they were attending the office of the Superintendent, Prohibition and Excise every day but so far as Nagpur and Bhandara officers are concerned, till 5th Jan. 1977, they did not issue any authorisation which could have enabled them to carry on their business. This, according to the petitioners, obviously amounts to contempt of this Court, as the respondents have wilfully disobeyed the orders passed by this Court. On the basis of these averments the present contempt petitions have been filed by the petitioners.

5. To these petitions, apart from the State of Maharashtra, the Collector of the district concerned as well as the Superintendent of Prohibition and Excise are joined as parties.

6. From the affidavits filed by the Superintendent of Prohibition and Excise, Nagpur as well as Bhandara, it appears that it is their contention that after the copy of the interim order was received, they allowed the petitioners to continue their business. Thereafter they contacted the higher authorities and sought further directions in the matter. They were directed on telephone by the higher authorities to await further orders in the matter. On 5th Jan. 1977, the stay matter again came for hearing and according to them, Dighe J., who was then acting as the Vacation Judge, orally clarified the interim stay order to the effect that in giving the interim stay order the Court only desired that the licensees should not be prosecuted for either possession of the country liquor stock or for the conducting their business on the basis of the undisposed stock of country liquor. According to them, the learned Judge further clarified that he did not mean by the said interim order that the fresh stock should be issued on the strength of the licences, which had already expired. According to these respondents, they had also received a letter from the Additional Government Pleader dated 5th Jan. 1977, which was addressed to the Secretary, Home Department, Mantralaya, Bombay, informing him about the details of the observations made by the learned Judge. With their counter-affidavit, the respondents have filed the said letter before us. They further stated that thereafter the Under Secretary of the Government of Maharashtra, Home Department, vide his letter dated 7-1-1977 informed the Commissioner of Prohibition and Excise, Maharastra State, Bombay, about the said clarification which was obviously based upon the letter written by the Additional Government Pleader. According to the respondents. Superintendents Prohibition and Excise, the Commissioner issued necessary directions to them vide letter dated 10-1-1977 clarifying the position that the stay granted by this Court is limited for the sale of undisposed stock of country liquor held by the licensees. The officers concerned have also filed a copy of the said letter with their affidavits. According to the officers, namely, the Superintendents of Prohibition and Excise, Bhandara and Nagpur Districts, under these circumstances and in view of the clarification made by the learned Judge on 5-1-1977 it is not open to the petitioners to say that the officers have not complied with the orders or direction issued by this Court. They have further submitted that they have allowed the petitioners to dispose of undisposed stock of country liquor. According to them, they have not disobeyed any orders or directions issued by this Court, nor they have committed any contempt.

7. The averments made in these affidavits as well as the letter issued by the Additional Government pleader were denied by the petitioners by filing counter affidavits. According to them, the averments made in the letter of the Additional Government Pleader are wholly incorrect. They further clarified the position by submitting that the Additional Government Pleader, Shri Sawant, who appeared before the Vacation Judge on 5-1-1977, had not filed any written application as such. He had only orally requested the Court that the stay order issued by the Court should be vacated. According to the petitioners, on this the learned Judge observed that he is aware of the fact that he has passed a mandatory order. However, it was passed after careful consideration of the facts and circumstances of the matter. Therefore, the learned Judge refused to vary or vacate the order. He also informed the Government Pleader that if he wanted to persist in making the application, he should do so by making a written application and then he will pass a speaking order. The learned Judge also enquired from the Government pleader whether he intends to file any such written application. The Government pleader replied in the negative. According to the petitioners, their counsel, namely, Shri C.K. Jaisinghani Advocate, who was present at the time of hearing was not even called upon to reply. In these counter affidavits, the petitioners have further stated that in spite of the ad interim stay order issued by this Court and in spite of the fact that they were prepared to arrange for the necessary deposits, the respondents refused to renew their licence, nor they permitted them to carry on their business. In substance, therefore, the averments made by the respondents in their affidavits as well as in the letter of the Additional Government Pleader are denied by the petitioners.

8. Subsequently on or about 27th Feb. 1977, the Under Secretary to the Government, Home Department, Shri J.G. Vad, also filed his affidavit on behalf of the Government. According to him, after reading the order passed by this Court carefully, he bona fide believed that the meaning of the said interim order was that the petitioners could continue the business of selling country liquor until the disposal of their stock. He further stated that neither the State Government, nor any of its officers interfered at any stage with the sale of country liquor by the petitioners and in fact the petitioners continued to sell the country liquor even though their licence had expired on 31st Dec. 1976. He then made a reference to the provisions of the Rules, namely, Maharashtra Country Liquor Rules, 1973 and stated that he bona fide construed the interim order to mean that the petitioners could continue to sell their stock of country liquor until its disposal notwithstanding their licences have expired on 31st December 1976. However, by way of a further caution he thought it fit to consult the Government Pleader, Shri Sawant. After some discussion with him, they felt that the order of this Court was not quite clear and, therefore, he requested the Additional Government Pleader to make an application before the learned Vacation Judge for vacating the interim order, or in any case for getting it clarified So that no doubt is left as to what exactly the order means. He then stated that accordingly the matter was moved and it came up for hearing at the residence of the Vacation Judge on 5-1-1977 in the presence of Shri Jaisinghani, Advocate who was appearing for the petitioners. He further stated that he was also personally present at the residence of the learned Judge. According to him, when the matter was called out, the learned Judge observed as under :

I have passed similar orders in several matters and I am, therefore, not willing to take up these matters for hearing as I am of the opinion that the matter requires serious consideration by the Division Bench.

Thereafter, according to Shri Vad, the Additional Government Pleader sought clarification of the learned Judge as to what he meant by 'continuing the old licence' and the learned Judge observed that in passing the said interim order, he desired that the licensees/petitioners should not be prosecuted for either possession of the stock or for continuing the business of undisposed stock. He further observed that he did not mean by the said interim order that the fresh stock should be issued on the strength of the licences which had already expired. Thereafter the Under Secretary had made a reference to the letter written by the Additional Government Pleader and the subsequent correspondence. He further stated that the Government has not committed any contempt of this Court, nor it has wilfully disobeyed the order passed by the Court.

9. In para 8 of the affidavit Shri Vad further clarified the position by saying that when the matter came up for hearing before a Division Bench of this Court on 17-2-1977, the counsel appearing for the petitioners gave an undertaking which was incorporated in the order of the Court, which reads as under :

Mr. Deshmukh states that the petitioners will not take any benefit nor enforce stay order till application for vacation stay is finally heard. This undertaking is being given in view of the fact that Mr. Deshmukh requests for an adjournment till tomorrow.

In view of this order, it is contended by the Under Secretary to the Government, Home Department, that the petitioners had given up their contention that they were entitled to purchase country liquor. The Collector, Nagpur has also filed an affidavit dated 28-2-1977 raising somewhat similar contentions. According to the Collector, Nagpur, the petitioners continued to enjoy the said licences with all their rights and obligations even after 31-12-1976. He has then made a reference to the letter issued by the Additional Government pleader and according to him, he has acted accordingly and, therefore, has not disobeyed any order or writ issued by this Court. Vide further affidavit dated 28-2-1977 the Under Secretary of the Home Department of the Government of Maharashtra has tendered an apology if this Court comes to the conclusion that he has committed the contempt of this Court.

10. On 1-3-1977 again an affidavit came to be filed by the Superintendent of Prohibition and Excise, Nagpur. In the said affidavit he has contended that in view of the interim order issued by this Court, the petitioners were at liberty to purchase the goods from the wholesalers and in fact they had never made any grievance that they were not being supplied the goods by the wholesalers. This position continued till he received instructions from the Government. According to him. he has not wilfully disobeyed the orders passed by this Court. He has also tendered his unqualified apology if ultimately this Court comes to the conclusion that he has disobeyed the orders passed by this Court.

11. The various averments made in this affidavits were denied by the petitioners by filing a further affidavit on 2nd March 1977. According to the petitioners, various statements of fact made in these affidavits are incorrect. According to them, they had duly served the interim order passed by this Court on the authorities concerned and particularly upon the Superintendents of Prohibition and Excise of the district concerned. They had also shown their willingness to deposit the amount and had prayed for necessary renewal of the licence or authorisation. On one pretext or the other, the authorities concerned refused to do so. Therefore, they had to practically close down their business from 31-12-1976 to 5-1-1977. On 5-1-1977 the Superintendent of Prohibition and Excise issued an authorisation and on that basis they had carried on their business of sale of country liquor from the existing stock only. In support of their contentions the petitioners have also produced before us on 2-3-1977 their registers which indicate that they had not effected any sale of country liquor between the period from 1-1-1977 to 4-1-1977, both days inclusive According to them, the interpretation now put up by the respondents on the order of this Court that no further action on their part was necessary and by the order of the Court itself the licences automatically stood continued is nothing but a result of an afterthought. Both the parties very well understood that until some authorisation was granted or the licence was renewed, the petitioners could not have carried on their business of selling country liquor from the existing stock, nor could they purchase fresh stock from the wholesalers. Therefore, a according to the petitioners, the contentions now raised by the authorities in their various affidavits are false and in terms they have disobeyed the orders passed by this Court. So far as their further action based on the letter issued by the Additional Government Pleader is concerned, it is contended by the petitioners that the various recitals as well as the statements of fact made in the said letter do not reflect the true state of affairs. At no point of time the earlier order passed by the Court was either varied or modified, nor the learned Judge had orally clarified the position. According to them, the learned Judge had only directed the opponents to file a written application, if they so desired.

12. Today when the matter came up for hearing, Shri Barde, the Deputy Superintendent of Prohibition and Excise, Nagpur, as well as Shri Kohok, Superintendent of Prohibition and Excise, Nagpur, have filed further affidavits clarifying certain averments made in their earlier affidavits. Shri Kohok has also expressed his sincere regrets and has tendered an apology. The Superintendent of Prohibition and Excise, Bhandara, has also filed similar affidavits. So far as Contempt petition No. 6 of 1977 is concerned, the ad interim order passed by this Court was served upon the Superintendent of Prohibition and Excise, Amravati, on 7-1-1977. Prior to that he had received instructions from the higher authorities in terms of the letter written by the Additional Government, Pleader dated 5-1-1977 and according to him, therefore, he has not wilfully disobeyed any order or direction issued by this Court. This, is, in short, the controversy involved in these cases.

13. From the contentions raised before us, it appears to be the case of the respondents that by the order or writ issued by this Court, the licence granted to the licensees stood automatically renewed and on that basis itself the licensees could have continued their business. It seems to be their case that no further action on their part was either contemplated or was necessary. They are further relying upon certain oral observations made by the learned Judge at the time of hearing of the stay matter on 5-1-1977, which, according to them, are duly incorporated in the letter issued by the Additional Government Pleader dated 5-1-1977- It is an admitted position that no written order was passed by the Court either varying or modifying the earlier order. It appears that the authorities have acted after 5-1-1977 on the basis of the letter written by the Additional Government Pleader, which reads as under :

I had moved the Vacation Judge for vacating the ex parte order passed by him in the above matter. By the ex parte order the learned Judge has issued mandatory injunction against the State to continue the Country Liquor Licence notwithstanding its expiry on 31-12-1976. The learned Judge observed that he has passed similar order in several matters and he was not willing to take up the matter for hearing as he was of the opinion that the matter required serious consideration by the Division Bench. Therefore, I sought his clarification as to what the learned Judge meant by continuing the old licences. In the presence of the Advocate Shri C.K. Jaisinghani for the petitioner the learned Judge said that in giving the said injunction he desired that the licensees should not be prosecuted for either possession of the stock or for continuing the business on the basis of undisposed stock. He further observed that he did not mean by the said injunction that the fresh stock should be issued on the strength of the licences which had already expired.

In view of the above clarification it is not necessary for the authorities concerned to allow the petitioners to obtain fresh stocks on the basis of their licences which stood expired in pursuance of the Court's ex parte order. It is also not necessary to take any other action regarding the said licensees. The matter would be placed for further orders before the Division Bench after the Court reopens on 10-1-1977.

It further appears that on the basis of this letter further clarification and directions were issued by the Government, to the authorities concerned.

14. In our opinion, the course followed by the opponents was most objectionable. It is no doubt true that as a counsel Government Pleader has full liberty to conduct his case or advice his client to the best of his ability keeping in view the interest of his client. However, as a lawyer appearing before the Court he is expected to observe the rules of procedure. As an officer of the Court he has to play an important role in the administration of justice. Being an officer of the Court he owes a duty to the Court also. He is not only an agent of a party, but acts as a limb of a Court and is expected to assist the Court in the administration of justice. Even while interpreting or considering the observations of a higher judicial authority, like this Court, greatest possible care should be taken to relate the observations of the Court to the precise issue before it and to confine such observations in the compass of the question before the Court. It is well known that a written order passed by the Court cannot be interpreted in the light of parole discussion, nor a written order could be treated as varied or modified on that basis. A written order can be varied or modified by another written order and not orally. If any modification or variation in the written order is called for, then it is the duty of the Advocate appearing for the party to insist upon such a written order. The observations made by the Judge during the course of hearing or even a declaration by the Judge of his intention of what his judgment is going to be is not a judgment or an order of the Court until the Judge has crystallised his intention into a formal shape and has pronounced it in the open Court as. the final expression of his mind. In this context reference could usefully be made to a decision of the Supreme Court in Surendra Singh v. State of Uttar Pradesh : 1954CriLJ475 and particularly to the following observations in paras 10, 11 and 12 of the said decision :

10. In our opinion, a Judgment within the meaning of these sections is the final decision of the Court intimated to the parties and to the world at large by formal 'pronouncement' or 'delivery' in open Court. It is a judicial act which must be performed in a judicial way. Small irregularities in the manner of pronouncement or the mode of delivery do not matter but the substance of the thing must be there : that can neither be blurred nor left to inference and conjecture nor can it be vague. All the rest, the manner in which it is to be recorded, the way in which it is to be authenticated,the signing and the sealing, all the rules designed to secure certainty about its content and matter can be cured ; but not the hard core, namely, the formal intimation of the decision and its contents formally declared in a judicial way in open Court. The exact way in which this is done does not matter. In some Courts the judgment is delivered orally or read out, in some only the operative portion is pronounced, in some the judgment is merely signed after giving notice to the parties and laying the draft on the table for a given number of days for inspection.

11. An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. We lay no stress on the mode or manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open Court. But however it is done it must be an expression of the mind of the Court at the time of delivery. We say this because that is the first judicial act touching the judgment which the Court performs after the hearing. Everything else up till then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in open Court with the intention of making it the operative decision of the Court. That is what constitutes the 'Judgment'.

12. Now upto the moment the judgment is delivered Judges have the right to change their mind. There is a sort of 'locus paenitentiae' and indeed last minute alterations often do occur. Therefore, however much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallise into a full-fledged judgment and becomes operative.

In the present case, it is not disputed be-fore us that formal written order was not passed by the learned judge either modifying or clarifying the stay order. The respondents have acted on the basis of some parole discussion, which, according to them, took place at the time of hearing. This is really very unfortunate. We cannot do better than to make a reference to the decision of Supreme Court in Associated Tubewells Ltd. v. R.B. Gujarmal Modi : AIR1957SC742 . The observations of the Supreme Court in paras 4 to 7 of the said judgment, which read as under, are quite pertinent :

4. We cannot, however, part from this matter without placing on record our very strong disapproval of the course that the Advocate a very senior counsel of this Court has adopted in making this application. In the review application he has referred in detail as to what, according to him, happended in Court on the prior occasion and what each Judge said in the course of the arguments. The review application sets out at length what the presiding Judge said and expressed in the course of the arguments and what his views were and what the other Judges of the Bench said and expressed and what the view of each was. These statements are followed by a confident assertion how and why the application was dismissed.

5. We cannot help saying that this was wholly improper. We are not saying that a Judge is infallible. It is possible that a view which ultimately appeals to a Judge in coming to his conclusion is erroneous. That by itself can afford no ground for review. But what is improper is to assume and assert as to what a Judge's view is in making a particular order when the order pronounced does not set it out and to make references to what Judges say in course of arguments and make that a ground for rehearing.

6. Judges of this Court cannot be dragged into a controversy as to whether the statements ascribed to them are correct, or express correctly and fully what they had in view. What may have been said or expressed may often enough be in the course of tentative loud thinking and may reflect only very partially what the judges had in view. What ultimately weighs with the Judges in pronouncing the order, when doing so without giving reasons, may often be not reflected in what is tentatively and openly expressed.

Judges cannot be drawn into controversy over such matters. It is not consistent with the dignity of the Court and the decorum of the Bar that any course should be permitted which may lead to controversy as to what a Judge stated in Court and what view he held. Such matters are to be determined only by what is stated in the record of the Court. That which is not so recorded cannot be allowed to be relied upon giving scope to controversy. To permit the atmosphere of the Court to be vitiated by such controversy would be detrimental to the very foundation of the administration of justice.

7. It is regrettable that the learned Advocate in spite of a hint from one of the members of the Court at the early stages of this hearing did not see the impropriety of the course he has adopted and has persisted in it before us.

In our opinion, these observations aptly apply to the present case also.

15. It is really regrettable that the State Government or its responsible officers should have followed such a course. The statements of facts made in the letter written by the Government Pleaders are stoutly denied by the petitioners who also claim to be present at the time of hearing with their counsel Shri Jaisinghani. In our opinion, it was wholly improper for the respondents to have acted upon certain oral observations, which, according to them, were made by the learned Judge at the time of hearing. They are expected to determine the course they should follow only by what is stated in the record of the Court. That which is not so recorded cannot be allowed to be relied upon giving scope to controversy. Moreover, the averments made in the affidavit regarding the observations alleged to have been made by the learned Judge are denied by the petitioners. This, therefore, obviously raises a controversy into which the respondents who are responsible officers of the Government, want to drag the Court concerned. In our view, this is highly improper.

16. Apart from this, from the very letter written by the Additional Government Pleader, it appears that the matter was to be placed before the Court on 10th Jan, 1977 after reopening of the Courts. From the record we do not find that the respondents have taken any steps to put the matter before the Court over again after reopening of the Courts. As a matter of fact, so far as the respondents are concerned, they had not taken any steps in that behalf till these petitions for contempt of Court were filed before this Court. According to Shri Kazi, the learned Additional Government Pleader, the Government could not take any steps in this behalf, because they were not served with a copy of the petition itself. However, we need not go into this question, because we are informed that later on an application for vacating stay has been filed by the respondents and the same is still pending and final orders are yet to be passed.

17. However in these contempt petitions it will have to be seen as to whether having regard to the facts and circumstances of the present case can it be said that the opponents have wilfully disobeyed the order of this Court? The disobedience must be wilful and not merely casual, accidental or unintentional. It appears from the record that though in the prayer clause it was prayed by the petitioners that the respondents should be directed to continue their licences, ultimately by the writ issued by this Court Incorporating the said order it was directed that the licences granted to them are continued pending the hearing and final disposal of Special Civil Application or until further orders are passed. There is some controversy between the parties as to whether the petitioners-licensees were permitted to carry on their business after the writs were served on the respondents. According to the opponents-officers they had never interfered with the business carried on by the petitioners and the petitioners were at liberty to carry on the business on the basis of the order passed by this Court. On the other hand, according to the petitioners, they could not have carried on their business unless their licences were renewed or necessary authorisations were issued to them and that too after accepting their deposits. According to Shri Deshmukh, the learned Counsel appearing for the petitioners, under the Rules the wholesalers were also not obliged to sell the goods to the petitioner-licensees unless in fact their licences were renewed. Therefore, according to the learned Counsel, the interpretation now put up on the writ or order issued by this Court, by the respondents is wholly uncalled for. He further stated that in fact the petitioners could not do any business and to substantiate their plea they have produced before this Court their registers. On the other hand, it is the say of the respondents and particularly of the Superintendents of Prohibition and Excise that the licensees, namely, the petitioners were at liberty to carry on their business and must have done so though it is not reflected in their registers. It was contended by Shri Kazi, the learned Additional Government Pleader, that though in fact the business was carried out by the petitioners-licensees they have not made necessary entries in the registers, because the petitioners interpreted the order of this Court to mean that unless the licences are renewed they are not entitled to carry on their business. Therefore, to avoid further complications, including the prosecution etc. they might not have made any entry in the register. Which of the two versions is true is difficult to decide in these summary proceedings. However, it is quite obvious that after 5-1-1977, the petitioners had carried out their business, though to limited extent, namely, as indicated in the subsequent order issued by the Government, which, in its turn, was based on the letter written by the Government pleader.

18. So far as Contempt Petition No. 8 of 1977 from Bhandara district is concerned, it appears from the register produced before us that the petitioner has carried on the business of sale of liquor from the existing stock for the period between 1-1 1977 to 4-1-1977. However, it also appears from the said register that he had not purchased any new stock from any of the wholesalers.

19. In our opinion, if a person had acted bona fide in a particular manner on the basis of an advice given by his lawyer, then depending upon other facts and circumstances of a case, he cannot be held guilty of wilful disobedience. A mistaken advice given by a counsel coupled with the conduct of the contemner might in the circumstances of a particular case give rise to sufficient cause for acting in a particular way, bona fide and in good faith, though there is certainly no general doctrine which saves a party from the consequences of wrong advice. The matter will obviously stand on different footing if the person concerned is deliberately avoiding to obey the order by giving wrong and illegitimate reasons. Nobody can be permitted to disobey the order of the Court by putting forward some excuse, including an excuse based on wrong legal advice. However, no general rule can be laid down in this behalf, nor it is advisable to lay down any such general rule. In deciding such a question, the substance of the matter will have to be taken into consideration and not merely the form in which contentions are worded. However, if the contemners have acted wrongly, owing to an error of judgment or due to misapprehension of the correct legal position, but in good faith, and without any motive to defeat or defy the order of the Court, then also depending upon the facts and circumstances of the case, it may not be fair to punish them for their bona fide conduct. If the act or omission was not wilful, then, it cannot be said that the officer acting in good faith on the basis of a legal advice, has deliberately or wilfully disobeyed the order of the Court, In the present case, after going through the various affidavits filed before us, we are satisfied that the opponents have acted in good faith and bona fide. If the opponents have bona fide thought that in view of the writ issued by the High Court no further action on their part was called for, then we do not think that it could be said that the respondents have wilfully disobeyed the order of this Court.

20. It is no doubt true that for obeying the order of the Court, it is not necessary for the officer to approach any of the higher authorities. They are obliged to obey the order of the Court irrespective of any advice given by the superiors. In this context we might make a reference to the decision of Andhra Pradesh High Court in Taluri Seshaiah v. M. Narayan Rao : AIR1967AP19 , and particularly towards the following observations in paragraph 6 of the said judgment :

In so far as the reasons for his not complying with the orders of this Court are concerned, they cannot be accepted as having any validity. When an order of the High Court directs a person to do something or omit to do something, it is incumbent on that person to comply with that order forthwith without any doubt or hesitation in his mind. The excuse that he may be found fault with by the higher authorities or that he should consult the higher authorities before complying with the orders of Court can be of no avail when he is asked to show cause why he should not be committed for contempt. No official superior can take any action against any of. his subordinates for complying with the orders of Court. It is somewhat regrettable that there should prevail an attitude of mind, namely that when orders of Court are received, a public servant should think that he has to approach his official superior and get further directions and get their permission also to comply with the directions of Court. We may reiterate the observations of Subba Rao, C. J. (as he then was) in Jonos Shieldv.Ramesam : AIR1955AP156 .

This Court will take serious view, if public officers of responsibility act in such a manner as to obstruct the course of justice or disobey to implement the orders of Court, for such acts will undermine the prestige of Courts and set a bad example to the public.

The risk involved in hesitation or delay, for whatever reason, in complying with the orders of Court are serious, and the person disobeying them or not complying with them will alone be responsible for the consequences and he cannot be heard to say that he has referred the matter to his official, superiors ; and for that matter, his official superiors cannot give him any kind of protection. It may be pointed out that the arm of the law is long enough to reach even the superior officers themselves if they give instructions contrary to the orders of the Court, or give an impression to the Subordinate Officials that compliance with orders of Court without their approval will open them to disciplinary action or make them blameworthy. Similarly an excuse, as we have found slated in some cases, that the order was received in office by some clerk and it was not placed before the officer to whom it is addressed and who has to comply, would not be of any avail. In our view, it is desirable that the Government should issue suitable instructions to their subordinate officials bringing to their notice the serious consequences of non-compliance with the orders of Court, on the plea that they have to first obtain orders of their official superiors before complying with the Court's orders. Such instructions will obviate any fear or misconception in the mind of these officials that they may be opening themselves to disciplinary action if they comply with the orders of Court.

However, as already observed, in view of the peculiar facts and circumstances of this case, it is not possible for us to come to the conclusion that the respondents have wilfully disobeyed the order of this Court. Further their conduct in tendering the unqualified apology in itself indicates that they were acting bona fide and in good faith.

21. In support of his argument Shri Deshmukh, the learned Counsel appearing for the petitioners, has relied upon a decision of Patna High Court in Subodh Gopal Bose v. State of Bihar AIR 1969 Pat 72, wherein it was held by a Division Bench of Patna High Court as under :

Even the State is subject to the jurisdiction of the Court in the matter of injunction and the State and its officers are guilty of contempt in case of disobedience and violation of the order of injunction, as long as it exists. It would not affect the liability of the State even if it had acted on a wrong legal advice. That fact may be considered while determining the question of punishment which is to be meted out. Where an apology is offered, the question as to whether the apology offered in a particular case is a genuine one, has to be considered on the circumstances of each particular case, and there can be no hard and fast rule about it.

It is no doubt true that this is the correct legal position. However, in this case there is something more than mere wrong advice. This case is obviously distinguishable. We have also dealt with the question as when and in what circumstances a mistaken legal advice given by the Counsel can give rise to sufficient cause for acting bona fide and in good faith in a particular manner. As already observed by us, no general rule can be laid down in this behalf. In the present case, apart from the legal advice given by the Government Pleader, the opponents have followed a particular course of conduct due to misapprehension of correct legal position. They have also referred to some oral discussion, which, took place during the course of hearing of stay matter, and according to them, the stay order issued by this Court was clarified by the learned Judge, though orally. It is no doubt true that the course followed by the opponents was not only unwarranted, but was most improper. But from this an inference cannot be drawn that they have not acted bona fide or in good faith. Having regard to the peculiar facts and circumstances of the present case, it is not possible for us to draw such an inference and then to hold that the opponents have wilfully disobeyed the order of this Court.

22. However, as observed by Madras High Court in Mottur Hajee and Co. v. Dy. Commissioner, Tax Officer : AIR1969Mad232 . we might emphasise that no officer of the Government however high ' or exalted he may be can take upon himself the responsibility of judging the correctness or validity of an order of the Court. If he honestly and bona fide, in the discharge of his duties, feels that the order is either erroneous or requires modification, the only remedy open to him is to approach the said Court by review and seek such modification or to approach a higher Court by filing an appeal etc. Instead of following such a course, it is not open to him to take upon himself the responsibility of judging the order and then to take an action contrary to or inconsistent with the same on the basis of his own judgment. If the officers are permitted to do any such things, that will mean an end of the very principle of rule of law and administration of justice, on the basis of which the entire fabric of our democratic society has been constructed. The disobedience of the specific order of the Court undermines the authority and dignity of the Court as well as it undermines the constitutional authority and respect of the High Court. It has disastrous impact. It is likely to subvert the rule of law and the administration of justice, A wilful or intentional disobedience, non-compliance or postponement of compliance is nothing short of the contempt of Court and consequence of such an action need not be overemphasised. However, in view of the fact that the officers have acted in the manner indicated above due to misapprehension of the correct legal position and in good faith without any motive to defeat or defy the order of the Court, we are not inclined to take a serious view of the matter, more so when they realised the mistake, they have tendered an unqualified apology. This tendering of the unqualified apology itself indicates that they acted bona fide and had no intention to disobey the order passed by this Court. Further, the petitioners themselves have given an undertaking that they will not take any benefit nor will enforce the stay order till the application for vacation of stay is finally decided. In view of this, in our opinion, in the present cases no further action is called for and we expect that the observations made in this case will have a desired effect.

23. With these observations, therefore, the rules are discharged. In the circumstances of the case, however, there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //