Bombay High Court
Dhondu Hanmant Reshim vs State Of Maharashtra And Another And ... on 12 February, 1997
Equivalent citations: 1997(3)BOMCR153, (1997)2BOMLR344, 1997CRILJ3982, 1997(3)MHLJ344
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT
1. This Contempt Petition has been filed by Dhondu Hanmant Reshim praying therein that the contemnors may be held guilty of civil contempt under the Contempt of Courts Act, 1971 for wilfully, knowingly and intentionally flouting and disobeying the order/direction passed by the Additional Commissioner, Konkan Division dated 9-8-1995. According to the petitioner, the Additional Commissioner directed the respondents for providing alternative commercial premises within the limits of Greater Bombay within one month from the date of the order dated 9-8-1995.
2. The petitioner states that he and other 39 occupiers received notices from the office of Collector, Andheri on 18-4-95 purporting to be under Section 50(3) of the Maharashtra Land Revenue Code, 1966 calling upon them to remove the zopadpatti and vacate the Government land within seven days from the receipt of the notices failing which the zopadpatti placed by the petitioner and others would be removed. The aforesaid notices received by the petitioner and others were challenged in appeal before the Additional Commissioner, Konkan Division, Bombay and on 9-8-1995 and the Additional Commissioner directed the State of Maharashtra and its functionaries to allot alternative commercial premises to petitioner and such other persons within the limits of Greater Bombay within one month. The grievance of the petitioner is that despite the direction given by the Additional Commissioner in the order dated 9-8-1995 the respondents did not provide the alternative commercial premises to them. The said act of the respondents was deliberate and intentional and, therefore, amounted to civil contempt under the Contempt of Courts Act, 1971.
3. An affidavit-in-reply has been filed by the contemnor No. 3 who is Additional Collector, Slum Redevelopment Authority, and he has, inter alia, set up a defence that the contempt petition was not tenable because the Additional Commissioner who has passed the order on 9-8-1995 is not a Court as contemplated under the Contempt of Courts Act and the non-compliance of said order passed by the Additional Commissioner cannot be construed to be disobedience of the judgment, decree, direction, order, writ or other process of a Court. The legal plea is that the Additional Commissioner, Konkan Division, is neither a Court as contemplated under Section 2(b) of the Contempt of Courts Act nor a Court subordinate to the High Court under Section 10 of the Contempt of Courts Act.
4. If the plea raised by the respondents/contemnors that Additional Commissioner, Konkan Division, is not a Court as contemplated under Contempt of Courts Act succeeds, obviously, there would not be any necessity of going into the merits of the allegations made by the petitioner in the contempt petition that the respondents contemnors have wilfully disobeyed and intentionally flouted the direction given in the order dated 9-8-1995 by the Additional Commissioner, Konkan Division, Bombay.
5. Mr. Omprakash Pande, the learned Counsel for the petitioner submits that the Additional Commissioner, Konkan Division, is a Court within the meaning of Section 2(b) of the Contempt of Courts Act. According to him, the Commissioner, Konkan Division, being official member of Maharashtra Revenue Tribunal acts as Maharashtra Revenue Tribunal under Section 309 of the Maharashtra Land Revenue Code. 1966 and by virtue of Section 318 of the Maharashtra Land Revenu Code the Tribunal has power of Civil Court. Mr. Pandey also submits that the exercise of the power by the Collector under sub-section (3) of Section 50 affects the civil right of the affected person and upon such notice being challenged in appeal under sub-section (5) of the Section 50 any order or direction passed by the appellate authority also results in affecting civil rights of the party and, therefore, Collector as well as appellate authority acts as a Court and, therefore, the Additional Commissioner, Konkan Division, is a Court under the Contempt of Courts Act.
6. On the other hand, Mr. K. K. Tated, the learned Assistant Government Pleader appearing for contemnors/respondents reiterated the plea set out in the affidavit-in-reply and submitted that the Collector or the authority delegated such power under sub-section (3) of Section 50 is not a Court subordinate to the High Court nor the appellate authority under sub-section (5) of Section 50 is a Court as contemplated in its terms and, therefore, even if it be assumed that the order passed by the appellate authority i.e. Additional Commissioner, Konkan Division on 9-8-1995 was not complied by the respondents/contemnors, no case for civil contempt is made out under Section 2(b) of the Contempt of Courts Act. In support of his contention. Mr. Tated relied the Division Bench judgment of Andhra Pradesh High Court in Prem Singh v. Tahsildar, Urban Taluk (Sri Syed Abdul Rahim). Himayatnagar, Hyderabad., 1971 (2) APLJ 213.
7. The foremost question that falls for consideration, therefore, is : whether the Collector or the appellate authority i.e. Addl. Commissioner exercising power under sub-section (3) or sub-section (5) of Section 50, as the case may be, is a Court as contemplated under the Contempt of Courts Act.
8. The expression "Court" is distinct and separate from Tribunal. A Tribunal may have power to discharge quasi-judicial functions as well as administrative functions but a Court is one which is invested with the judicial power inherent only in the Court and not in the Tribunal. A Tribunal may have trappings of the Court but that does not make Tribunal a Court which is constituted by the State invested with power to discharge judicial functions. The character of determining an issue or adjudicating a dispute by itself would not make the Tribunal a Court unless it has power to give decision or a definite judgment which has finality and authoritativeness.
9. In Durga Shankar Mehta v. Raghuraj Singh, though in different context, the Apex Court was dealing with the expression Tribunal as used in Article 136 and the Apex Court held that the expression 'Tribunal' does not mean the same thing as Court but includes within its ambit all adjudicating bodies, provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive functions. The Supreme Court reiterated the principles laid down by it in Bharat Bank Ltd. v. Employees of the Bharat Bank Ltd., .
10. In Brajnandan Singh v. Jyoti Narain, , the Apex Court was considering the question whether the Commissioner appointed under Public Servants ((Inquiries) Act, 1850 (Act 37 of 1850) was a Court within the meaning of the Contempt of Courts Act, 1952 and the Apex Court held that the Commissioner appointed under Act 37 of 1850 did not constitute a Court within the meaning of the term as used in Contempt of Courts Act. The Apex Court observed 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 mere trappings of a judicial Tribunal, power to give decision or a definite judgment which has finality and authoritativeness which are the essential tests of judicial pronouncements. The Apex Court in this context referred to the large number of cases and held that the expression within the connotation of the term as used in the Contempt of Courts Act has to be found out by applying the test strictly for determining what is Court. The Apex Court observed thus :
"The pronouncement of a definitive judgment is thus considered the essential 'sine qua non' of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons it cannot be predicated that he or they constitute a Court."
11. The judgment of the Privy Council in Shell Company of Australia Limited and Federal Commissioner of Taxation, (1931) AC 275, enumerated certain negative propositions by referring to Rex v. Electricity Commissioner, (1924) 1 KB 171, which reads thus :
(1) A Tribunal is not necessarily a Court in the strict sense because it gives a final decision.
(2) Nor because it hears witnesses on oath.
(3) Nor because two or more contending parties appear before it between whom it has to decide.
(4) Nor because it gives decisions which affect the rights of subjects.
(5) Nor because there is an appeal to a Court.
(6) Nor because it is a body to which a matter is referred by another body.
At pages 298 of the report, the Privy Council observed that an administrative Tribunal may act judicially but still remain an administrative Tribunal as distinct from a Court strictly so called. More externals do not make a direction to an administrative officer by an ad hoc Tribunal and exercise by a Court of judicial power.
12. The judgment of Privy Council in Shell Co. of Australia Limited has been considered by the Apex Court in Brajnandan Sinha's case (supra) as well as Bharat Bank Ltd. v. Employees of Bharat Bank Ltd., and Maqbool Hussain v. State of Bombay, .
13. The principle laid down in Cooper v. Wilson, 2 KBD 309 was adopted by the Apex Court in Maqbool Hussain v. State of Bombay (supra) which reads thus (at page 1435 of Cri LJ) :
"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 argument by the parties; and (4) A decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law."
14. Applying the aforesaid legal position, I now proceed to decide the question whether the Collector exercising power under sub-section (3) of Section 50 or the appellate authority hearing the appeal against the order passed by the Collector under sub-section (5) of Section 50 of Maharashtra Land Revenue Code is a Court as contemplated under the Contempt of Courts Act, 1971.
15. Section 50 of the Maharashtra Land Revenue Code, 1966 reads thus :
50. (1) In the event of any encroachment being made on any land or fore-shore vested in the State Government (whether or not in charge of any local authority) or any such land being used for the purpose of hawking or selling articles without the sanction of the competent authority, it shall be lawful for the Collector to summarily abate or remove any such encroachment or cause any article whatsoever hawked or exposed for sale to be removed; and the expenses incurred therefor shall be leviable from the person in occupation of the land encroached upon or used as aforesaid.
(2) The person who made such encroachment or who is in unauthorised occupation of the land so encroached upon shall pay, if the land encroached upon forms part of an assessed survey number, assessment for the entire number for the whole period of the encroachment, and if the land has not been assessed, such amount of assessment as would be leviable for the said period in the same village on the same extent of similar land used for the same purpose. Such person shall pay in addition a fine which shall be not less than five rupees but not more than one thousand rupees if the land is used for an agricultural purpose, and if used for a purpose other than agriculture such fine not exceeding two thousand rupees. The person caught hawking or selling any articles shall be liable to pay fine of a sum not exceeding fifty rupees as the Collector may determine.
(3) The Collector may, by notice duly served under the provisions of this Code, prohibit or require the abatement or removal of encroachments on any such lands, and shall fix in such notice a date, which shall be a reasonable time after such notice, on which the same shall take effect.
(4) Every person who makes, causes, permits or continues any encroachment on any land referred to in a notice issued under sub-section (3), shall in addition to the penalties specified in sub-section (2), be liable at the discretion of the Collector to a fine not exceeding twenty-five rupees in the case of encroachment for agricultural purposes and fifty rupees in other cases for every day during any portion of which the encroachment continues after the date fixed for the notice to take effect.
(5) An order passed by the Collector under this section shall be subject to appeal and revision in accordance with the provisions of this Code.
(6) Nothing contained in sub-sections (1) to (4) shall prevent any person from establishing his rights in a Civil Court within a period of six months from the date of the final order under this Code.
16. Under sub-section (3) of Section 50 the Collector is empowered to prohibit or require the abatement or removal of encroachments on the land vested in the Government by issuing notice to such person and in lieu service thereof. The order passed by the Collector under Section 50(3) is appealable and subject to revision in accordance with the provisions of the Code, the Divisional Commissioner, or for that matter the Additional Commissioner, is an appellate authority competent to bear and decide the appeal against the order passed by the Collector under sub-section (3) of Section 50. The power which is required to be exercised by the Collector under sub-section (3) of Section 50 or by the appellate authority under sub-section (5) of Section 50 is definitely not a judicial power invested in these authorities by the State. The Collector under the Maharashtra Land Revenue Code exercising the power under Section 50(3)(3) as well as the appellate authority hearing the appeals against the order passed by the Collector under Section 50(5) apparently cannot fall in the hierarchy of Courts as is contemplated in the term. Basically they discharge administrative functions and at best some time may discharge function akin to quasi-judicial functions. But that does not make either the Collector or the Additional Commissioner the Court as is contemplated in its term or under the Contempt of Courts Act. Merely because the Collector is expected to pass the order of removal of encroachment after following principles of natural justice i.e. giving notice to the encroachee as required under sub-section (3) of Section 50, such power cannot be said to be in the discharge of judicial functions of Court. Similarly, the appellate authority who hears the appeals against the order of Collector under sub-section (3) of Section 50 and passes the order thereon, cannot be said to have been entrusted with the judicial functions of the Court. The order, that may be passed by the Collector or the appellate authority under Section 50(3) or (5) as the case may be, may affect the civil rights of the affected person but that would not render the Collector or such appellate authority a Court. Merely because the Collector under sub-section (3) of Section 50 has to give notice and hold an enquiry whether the land vested in the Government has been encroached upon or not, such order cannot be said to be a decision given by Court in discharge of judicial functions nor is such order final and decisive. The authority as a matter of fact while dealing with the encroachment in the proceedings under sub-section (3) of Section 50 is not vested with the power to exercise any judicial power nor has even trappings thereof. The appellate authority under sub-section (5) of Section 50 hearing such appeals against the order passed by the Collector under sub-section (3) of Section 50 cannot also be said to be Court discharging judicial functions. As a matter of fact sub-section (6) of Section 50 itself makes it clear that nothing contained in sub-sections (1) to (4) shall prevent any person from claiming his rights in a Civil Court within a period of six months from the date of final order under this Code. Obviously, therefore, the order passed under Section 50 is not final and decisive and it is open to the affected party to establish his right in the competent Court of civil jurisdiction.
17. I am fortified in my view by the judgment of the Andhra Pradesh High Court in Prem Singh case (supra) relied upon by the learned Assistant Government Pleader wherein the Division Bench of the Andhra Pradesh High Court has extensively considered the various decisions and applying these principles held that Tehsildar, Revenue Officer and Collector performing functions under Land Encroachment Act are not 'Court' as contemplated under Contempt of Courts Act, 1952. The Division Bench held thus :-
"Section 7 refers to the person reputed to be in unauthorised occupation of land. Section 10 gives a right of appeal to the Collector or the District Collector and to the Board of Revenue. Sub-section (2) of Section 10 provides for suspension of the execution of the order appealed against or sought to be revised. Section 14 gives a right to persons deeming themselves aggrieved by any proceedings under the Act (except as otherwise expressly provided by the Act) to approach the Civil Court for redress. Thus it will be seen that the revenue officers - the Tahsildar, Revenue Divisional Officer and Collector functioning under the Act cannot be included in the hierarchy of Courts subordinate to the High Court. They are administrative Tribunals. The functions under the Act are also administrative and executive in nature. They are called upon to reach decisions in relation to matters already specified above, viz., with regard to the rate of assessment, penalty and also inquiry in a summary manner into facts as to whether the resistance or obstruction of the person in possession is without any just cause or not. The question of eviction has to be inquired into after giving notice. There is a right of appeal as well. These functions, which are administrative and executive in nature cannot be impressed with judicial functions of Courts. As observed in Engineering Mazdoor Sabha v. Hind Cycles Ltd., (2) administrative or executive bodies are often called upon to reach decisions in several matters in a purely administrative or executive manner and these decisions fall clearly under the category of administrative or executive orders."
18. I may now refer to the contention raised by the learned Counsel for the petitioner that the Additional Commissioner, Konkan Division acts as a Maharashtra Revenue Tribunal under Section 309 being official member of the Maharashtra Revenue Tribunal and, therefore, a Civil Court under Section 318 of the Maharashtra Land Revenue Code. Section 308 of the Code of 1966 defines Tribunal and President which means Maharashtra Revenue Tribunal constituted under Section 309 and President of the Tribunal respectively. Under Section 309 Maharashtra Revenue Tribunal is constituted for the State of Maharashtra and that consists of President and other members. By notification issued by the State Government, the Commissioner of Bombay and Konkan Division has been made official member of the Maharashtra Revenue Tribunal. Merely because the Commissioner, Bombay and Konkan Division is made official member of Maharashtra Revenue Tribunal, it is difficult to appreciate the contention of the learned Counsel that the Commissioner hearing the appeal under sub-section (5) of Section 50 also acts as Maharashtra Revenue Tribunal. According to Section 247 of the Code of 1966 read with Schedule E the Divisional Commissioner is appellate authority against the order of Collector. The Maharashtra Revenue Tribunal is not the appellate authority under Section 50(5) against the order of Collector under Section 50(3). This argument is, therefore, wholly misconceived.
19. I have, therefore, no hesitation in holding that the Collector issuing the notice and passing the order under sub-section (3) of Section 50 or the appellate authority under sub-section (5) of Section 50 of Maharashtra Land Revenue Code, 1966 is not a Court within the meaning as contemplated under the Contempt of Courts Act. Therefore, the Additional Divisional Commissioner while hearing the appeal under sub-section (3) of Sec. 50 is not a Court under the Contempt of Courts Act. This contempt petition is, thus, not tenable.
20. The contempt petition accordingly fails. Rule is discharged. No costs.
21. Upon dismissal of the contempt petition interim order passed by this Court also stands vacated.
22. Oral prayer made by the learned Counsel for the petitioner for status quo for some time is rejected.
23. Petition dismissed.