1. This rule was issued on 9-11-1951 by P. N. Mookerjee J.
'calling upon Mr. S. Eanerji, Secretary to the Government of West Bengal, and the Collector of Howrah to show cause why they should not be committed for contempt of this Court for alleged non-compliance with the order dated 27-8-1951 and made in C. R. 436 of 1951, or such other or further order made as to this Court may seem fit and proper'.
2. The rule was made returnable on November 14, 1951, and it was directed that the matter might be put up before the learned Judge (P. N. Mukherji J.). On November 14, 1951 the learned Judge adjourned the hearing of the rule for one week on the prayer of the opposite parties which was not objected to by the learned Advocate for the petitioner.
3. By an order dated 21-11-1951 passed by the learned Chief Justice, the case was directed to be placed before the Bench presided over by me.
4. The case was thereupon heard by myself and Das Gupta J.
5. I shall first state the facts which led up to this rule.
6. On an application supported by an affidavit of the petitioner Naba Kumar Sana alias Rajendranath Saha, Bose J. issued a rule 'calling upon the opposite parties to show cause why a writ in the nature of Mandamus should not issue restraining them from further proceeding with the matter of acquisition of the lands of the petitioner mentioned in the petition or why such or further order or orders should not be made as to this Court may seem fit and proper'.
7. 'Ad interim' injunction restraining the opposite parties from inducting any further incumbrances and from cutting down any further trees or standing crops on the lands of the petitioner was granted pending the hearing of the rule.
8. The only opposite parties to this rule were (1) Mr. S. Banerji, Secretary to the Government of West Bengal, (2) The Collector of Howrah.
9. An affidavit, on behalf of the opposite parties was filed.
10. The rule w,as heard and disposed of by me on August 27, 1951, by the following order passed in the presence of the learned Advocates for the parties:
'For the reasons given by me in Civil Revision Case No. 1678 of 1950 disposed of by me today, 1 make the rule absolute in terms similar to those of the said rule. The petitioner will be entitled to the costs of this rule, hearing fee being assessed at one Gold Mohur'.
11. In order to understand the above order, it it necessary to set out the relevant portion of the. order passed in Civil Revision case No. 1678 of 1950 which runs as follows:
'I accordingly direct that the State do restore possession forthwith of the lands which are in their possession, to the petitioners after giving them notice of the date on which possession would be restored. I also direct that the State will supply to the petitioners within one month from this date the names of the persons to whom possession was made over by the State of the lands which are covered by notification, and the description of such lands as far as possible.
Liberty is given to the parties to mention this matter'.
12. At the time of the hearing of these rules, no point was made that the Relief and Rehabilitation Department was a necessary party.
13. No petition or affidavit has been filed by the petitioner stating what had happened after I made the order.
14. Mr. Banerji, learned Advocate for the petitioner has stated before us that he mentioned the matter before P. N. Mpokerji J. on November 9, 1951, and filed plain copies of the petition on which Civil Rule No. 436 of 1951 was issued, the order passed in the said rule, the order passed in Civil Revision Case No. 1678 of 1950 and a notice dated October 22, 1951, addressed to the Land Acquisition Collector, Howrah with a note that copies were forwarded to (1) The Divisional Commissioner, Burdwan Division, (2) The Secretary, Land Revenue Department, Government of West Bengal, (3) The Director, Rehabilitation Department, Government of West Bengal.
15. P. N. Mookerji J. thereupon issued the present rule.
16. Three affidavits sworn to respectively by Mr. B. Lahiri Deputy Rehabilitation Commissioner to the Government of West Bengal, Mr. R. Roy opposite party No. 2 and Mr. S. Banerji opposite party No. 1 have been filed by the opposite parties.
17. The learned Senior Government Pleader has submitted that the tacts disclosed in these affidavits shew that the State had no intention of disobeying the order of this Court and the State has already complied with the order. The learned senior Government Pleader has accordingly contended that the rule should be discharged. No other point was urged before us.
18. No affidavit in opposition has been filed on behalf of the petitioner; Mr. Banerji, learned Advocate for the petitioner has contended that as the order of this Court was not complied with, within the time limited by the order and as the opposite parties did not avail themselves of the liberty given to them by the order to mention the matter for further directions, this rule should be made absolute.
19. As the rule involved a question of importance, we took time to consider our order.
20. Having given our best attention to the matter, we have come to the conclusion that this rule should be discharged on the short ground that the order of this Court, non-compliance whereof is alleged, was not personally served on any of the opposite parties before the rule was issued by this Court.
21. As the point was not canvassed before us, we have gone through the affidavits filed on behalf of the Appellants and the records of this Court,
22. In his affidavit, Mr. S. Banerji opposite party No. 1 has stated that the order of this Court dated 27-8-1951 was communicated to him by this Court in its letter dated 13-11-1951. He has further stated that he immediately intimated the Department concerned (Refugee Rehabilitation Department) to take necessary action.
23. In his affidavit, Mr. R. Roy, Opposite PartyNo. 2 has stated that prior to 24-9-1951, no intimation was received by his officeabout the order of this court, thaton 24-9-1951 his office received an intimationfrom the Deputy Refugee Rehabilitation Commissioner to arrange for restoration of possession ofthe lands to the petitioner with the help of aKanungo; that notice has been given to the petitioner to the effect that possession would be restored on 13-11-1951, that the delay was due to theintervention of the Puja holidays and to the factthat the Land Acquisition Collector had to attendto a number of Land Acquisition cases and thatthe deponent was also busy with election matters.It was submitted that the deponent had no intention of disobeying the orders of this Court.
24. It appears from the High Court file of C. R. 436 of 1951 that after the disposal of the rule on 27-8-1951, note dated 1-9 to the following effect is recorded.
'Drafter Please see the note sheet in C. R.1678/50 and do the needful'.
'The file of C. R. 1678/51 shows that on 31-8 the office submitted a note stating inter-alia that only communication of the order to the Government will perhaps be sufficient: submitted for order'.
25. Then follows the following order 'As proposed at A H. Ghosal 1-9-51'.
26. The Note sheet of C. B. 1678/51 then contains only the following entry. '6-11-51 O. C. R. to D/S'.
27. The file of C. R. 1678/51 further shews that on 6/11 Mr. H. Ghosal, Assistant Registrar directed the copy of the judgment in this rule to be forwarded to (1) Secretary, Land & Land Revenue Department, Govt. of West Bengal, Writer's Buildings, (2) Collector of 24 Parganas, (3) Commissioner of Presidency Division at Calcutta for information and guidance.
28. The marginal note shows that the copies were issued on 13-11.
29. The file of C. R. 433 of 1951 shews that on 5/11 Mr. H. Ghosal, Assistant Registrar directed that the copies of the judgment be forwarded to the Secretary Land and Land Revenue Department, Government of West Bengal at Writer's Building and Collector of Howrah, Commissioner of Burdwan Division at Chinsurah Hooghly. There is a further note that the copies were issued on 13/11.
30. The facts stated above clearly shew that the copy of the order of this case did not issue before 13/11, i. e. after the present rule, giving rise to Misc. case 350 of 1951, was issued by P. N. Mookerji J.
31. There is nothing on the record to shew that authenticated or even plain copies of the order of this Court dated August 27, 1951 were personally served on the Opposite parties.
32. The petitioner has not filed any affidavit in this behalf. There is a denial by the opposite parties on oath. The denial is fully supported by the records of the cases referred to above.
33. In these circumstances, I hold that copies of the relevant orders of this Court were not personally-served on the opposite parties.
34. I have set out the facts in some detail, because the jurisdiction of the Court in considering and dealing with contempt of Court, though extensive, should be exercised with caution and deliberation.
35. The first question which requires our consideration is whether on the facts found above the opposite parties can be committed for contempt of this Court.
36. Contempt of Court is either (1) criminal contempt consisting of words or acts obstructing, or tending to obstruct, the administration of justice, or (2) contempt in procedure, consisting of disobedience to the judgments, orders, or the process of the Court and involving a private injury: Halsbury, Laws of England (Hailsham Edition) Vol. 7 Part I, Section 1.
37. But disobedience, if it is to be punishable as a contempt, must be wilful. Disobedience cannot be held to be wilful until the order is served. Hence the judgment or order must be shown to have been served on the party personally, except in the following cases (1) prohibitive orders the drawing up of which is not completed; (2) orders embodying an undertaking to do an act by a named day; (3) orders to answer interrogatories or discovery or inspection of documents; (4) where an order for substituted service has been made; (5) where the respondent has evaded service of the order: Oswald on Contempt, 3rd Edition at page 199.
38. The above exceptions are not attracted in the facts of the present case.
39. Personal service of the judgment or order may be dispensed with (1) if it be made to appear jto the court or a Judge that prompt personal service of the judgment or order cannot be effected, in such a case substituted or other service of the order or merely giving notice of the order may be directed; (2) if it is shewn that the person to be served has evaded service. It may be pointed out that the exceptions set forth above have no application in this case.
40. Again the fact that the person ordered to do an act was actually in Court when the order was made is not a ground for dispensing with personal service of it: Oswald on Contempt, 3rd Edition pages 200-201.
41. Though an affidavit was filed on behalf of the opposite parties in C. R. 436 of 1951 by Mr, S.K. Roy Choudhury learned Advocate, an inspection of the records shews that in fact Mr. Roy Choudhury filed a vakalatnamah on behalf' of opposite party No. 2 only. The opposite party No. 1 never appeared. So far as opposite party No. 2 is concerned the fact that he appeared in court through an Advocate when the order was made, is not sufficient to commit him for contempt in view of what I have just stated.
42. I may point out that the position is different in the case of a breach of a prohibitory Order. In such a case service on the party against whom committal is sought, is not necessary.
1. If the party concerned had notice of the order and knew that the order was intended to be enforced
2. Or if he consented to the order
3. Or if he was present in Court when the order was pronounced or the motion was made although he may have left the Court before the order was pronounced: Oswald on Contempt 3rd Edition page 203.
43. In the present case, the order of this Court was not a prohibitory order but was a mandatory order. The order was, as I have stated already never personally served on the opposite party, before the present rule was issued by P.N. Mookerji J.
44. This rule must therefore be discharged on this ground.
45. The contention of the learned Senior Government Pleader was that the state could not comply with the order of this Court within the prescribed time, because of certain administrative difficulties and as such the rule should be discharged.
46. In the present case, the order was made in the presence of learned Advocates who professed to have acted on behalf of the opposite parties.
47. If the state found it difficult to comply with the order of this Court, it could have availed itself of the liberty to mention the matter to this Court, which was expressly reserved by the order of this Court. The above contention of the Senior Government Pleader cannot be accepted.
48. As we are discharging the rule on the ground stated already, we have refrained from dealing with certain other aspects of this case, which might have required consideration; the more so as these points of view were not canvassed! before us.
49. Before we part with this case, we desire to add that this case discloses a lamentable lack of diligence on the part of the office of this Court. The order of this Court was dated August 27, 1951 and was an extremely urgent one. The order had to be complied with forthwith or within one month. The copies of this order of this Court were not issued by the office to the opposite parties till the 13th of November 1951.
50. For reasons already given this rule is discharged. In the circumstances of this case, we direct the parties to bear their own costs.
Das Gupta, J.
51. I agree.