Calcutta High Court
All Bengal Excise Licensees' ... vs The State Of West Bengal And Ors. And ... on 29 August, 2006
Equivalent citations: (2007)1CALLT311(HC)
Author: Pranab Kumar Chattopadhyay
Bench: Pranab Kumar Chattopadhyay
JUDGMENT Pranab Kumar Chattopadhyay, J.
1. This application under the Contempt of Courts Act, 1971 has been filed by the petitioners alleging deliberate and wilful violation of the solenm passed by this Bench on 4th January, 2005, 19th January, 2005 and 28th January, 2005 In the writ petition being W.P. No. 2248 of 2004.
2. The aforesaid writ petition was moved upon notice to the respondents on 4th January, 2005 when the following order was passed by this Bench:
The Court: Let this matter be listed before the regular Bench one week after the Christmas vacation.
In the meantime, let there be an interim order only to the effect that the respondent authorities herein will be at liberty to process the applications in respect of grant of licence for excise shops but no final selection in respect of such shops shall be made without obtaining specific leave of this Court.
I also make it clear that the respondent authorities will also not hold any lottery for the purpose of final selection of the aforesaid excise shops in question without obtaining further orders from this Court.
All parties are to act on a xerox signed copy of this dictated order on the usual undertaking.
3. Thereafter, the aforesaid writ petition again appeared before this Bench on 19th January, 2005 when on the prayer of the learned Advocate for the respondents, hearing of the writ petition was adjourned till 28th January, 2005 and the interim order already passed in the matter was directed to continue until further orders.
4. On 28th January, 2005 when the matter was again taken up for hearing the learned advocate for the respondents prayed for a direction for filing affidavits in the matter. Accordingly, this Bench passed further order on 28th January, 2005 to the following effect:
'The Court: The learned Counsel appearing on behalf of the State respondents wants to file affidavits in the matter. Accordingly, liberty is granted to the respondents to file affidavit-in-opposition within a week from date. Affidavit-in-reply, if any, is to be filed within a week thereafter.
Let this matter be listed two weeks hence.
The interim order already passed in this matter will continue until further orders.
All parties are to act on a xerox signed copy of this dictated order on the usual undertaking.
5. In two other matters Division Bench of this Hon'ble Court had to deal with the issues relating to excise licences under the Bengal Excise Act and Rules. The appeal preferred by the North 24-Parganas Excise Licensees' Association was disposed of by the Division Bench presided over by Hon'ble Justice Bhaskar Bhattacharya on 15th March, 2005 as hereunder:
We thus dismiss the appeal.
The interim order passed by another Division Bench of this Court earlier and extended by this Bench during the pendency of this Appeal before us stands vacated.
However, if any license is granted during the pendency of the Writ Application, those licenses will be subject to the final decision of the Writ Application.
We further make it clear that observations made herein as regards the prima facie case of the writ petitioners are all tentative for the purpose of disposal of the injunction and those will not be binding upon the learned Trial Judge, when the Writ Application will be finally heard on the basis of the Affidavit of the parties.
6. Another Division Bench of this Hon'ble Court consisting of their Lordships, the Hon'ble Justice Asok Kumar Ganguly and the Hon'ble Justice Tapan Kumar Dutt while entertaining a Public Interest Litigation passed an order on 18th March, 2005 to the following effect:
In the meantime if any Excise Licence is actually granted in accordance with the Bengal Excise Act and Rules, it is made clear that such licence cannot be granted in terms of the Circular dated 20.01.2004 issued by the Excise Commissioner, Government of West Bengal vide Notification No. 23-30/03-04/8869(20)E and in any event such licence will abide by the further order to be passed on this writ petition and the mere fact that licence granted will not enable the alleged grantee to any equity in their favour.
7. Subsequently, an application was filed before this Court on behalf of the respondent authorities for vacating the interim order" passed earlier by this Bench in W.P. No. 2248 of 2005 and Hon'ble Justice Jayanta Kumar Biswas by the order dated 26th July, 2005 vacated the interim order granted earlier by this Bench.
8. It has been specifically submitted on behalf of the petitioners that the interim order passed earlier by this Bench on 4th January, 2005 in the writ petition being W.P. No. 2248 of 2005 was neither challenged before the Division Bench of this Hon'ble Court nor the same was the subject matter of challenge and/or considered by the Hon'ble Division Bench at any point of time. According to the petitioners, the Division Bench of this Hon'ble Court passed the aforesaid orders on 15th March, 2005 and 18th March, 2005 in two separate proceedings which were in no way related and/or connected with the writ petition being W.P. No. 2248 of 2005 filed by the petitioners herein.
9. In the aforesaid circumstances, the learned advocate of the petitioners submits that the alleged contemnors herein have wilfully and deliberately violated the specific order passed earlier by this Bench on 4th January, 2005 and extended subsequently on 19th January, 2005 and 28th January, 2005 by issuing advertisement in the newspaper for holding lottery for the purpose of final selection of excise shops in question. The learned Counsel of the petitioners further submits that pursuant to the said advertisement respondent authorities held a lottery for final selection of the excise shops and thus violated the solemn order passed earlier by this Bench.
10. The alleged contemnors herein, however, submitted that lotteries in respect of the district 24-Parganas (North) were held in compliance with the order passed by the Hon'ble Division Bench on 15th March, 2005 on the understanding that by virtue of the said order of the Hon'ble Division Bench, the Government was entitled to hold the said lottery. The alleged contemnors also submitted before this Court that a mistake was committed by them in interpreting the aforesaid, order dated 15th March, 2005 passed by the Hon'ble Division Bench and the other subsequent order dated 18th March, 2005 passed by the other Division Bench in a separate proceeding. However, it has been specifically submitted before this Bench that the said alleged contemnors had never intended to violate the order passed by this Hon'ble Court in any manner whatsoever and steps were taken by the alleged contemnors regarding publication of the advertisement in the newspaper for holding the lottery in order to finally select the candidates for issuing licenses for country and foreign liquor "off shops" in the District of North 24-Parganas in view of the order passed by the Division Bench of this Hon'ble Court on 15th March, 2005.
11. Mr. Saktinath Mukherjee, learned senior counsel of the petitioners submits that the alleged contemnors being highly placed government officials should have appreciated that the Division Bench order passed on 15th March, 2005 and/or 18th March, 2005 cannot vary the specific order passed by this Bench in an independent proceeding and not related with the subject matter of dispute raised before the" Division Bench. Mr. Mukherjee referred to and relied upon the following decisions in support of his aforesaid contentions:
1. (Khushro S. Gandhi v. N.A. Guzder)
2. 82 CWN Page 44 [Dibakar Naskar and Ors. v. Rotary Village Cooperative Multipurpose Society Ltd. and Ors.)
12. Mr. Mukherjee further submits that no litigant can indulge in a kind of misunderstanding in respect of a subsisting interim order as has been done in the instant case. Mr. Mukherjee also submits that it is not open to the alleged contemnors to defeat the operation of an order passed by this Bench and deny the benefit of it to the petitioners on the plea of misunderstanding. Mr. Mukherjee relied on the following decisions in this regard:
1. (T.M.A. Pai Foundation and Ors. v. State of Karnataka) (Paras 8, 9 & 10)
2. (Anil Ratan Sarkar and Ors. v. Hirak Ghosh and Ors.)
13. The learned Counsel of the petitioners submits that the alleged contemnors could very much approach this Court in order to dispel the confusion and/or misunderstanding allegedly created by the aforesaid two orders passed by the Division Bench of this Hon'ble Court specially when the main writ petition was pending before this Court for final adjudication and the said alleged contemnors should not have taken up the burden upon themselves to interpret the various orders passed by this Court. Mr. Mukherjee, learned senior counsel, further submits that in case of any doubt regarding existence and /or operation of any order passed by this Court, the parties should approach the concerned Court for necessary clarification. Mr. Mukherjee relied upon the following decisions in support of his aforesaid contentions:
1. 1952(2) All ER page 567 at page 569 (Hadkinson v. Hadkinson)
2. AIR 1915 PC 106 (Bagga and Ors. v. Saleh and Ors.)
14. The learned advocate of the petitioners also submits that although the interim order passed earlier by this Bench on 4th January, 2005 was vacated by the subsequent order of this Court but the said order was required to be obeyed while the same was subsisting and valid. The learned advocate of the petitioners specifically submits that during the period when the order was in force, the same was required to be complied with and violation thereof will land the concerned person/ persons in contempt. The decision of the Supreme Court in the case of Ravi S. Naik v. Union of India (Paras 44 to 48) has been referred to and relied upon by the learned Counsel of the petitioners in this regard.
15. It has further been submitted on behalf of the learned Counsel of the petitioners that when a step has been taken by the alleged contemnors in violation of the earlier order passed by this Bench, status quo ante is required to be restored. Mr. Mukherjee, learned Counsel of the petitioners referred to and relied upon the following decisions in support of the aforesaid contentions:
1. [Century Flour Mills Ltd. v. S. Suppiah and Ors.)
2. [Vidya Charan Shukla v. Tamil Nadu Olympic Association and Anr.)
16. The learned Advocate General appearing for the alleged contemnors submits that there is a violation of the order passed earlier by this Bench on 4th January, 2005 but the said violation is not wilful violation as the contemnor wrongly understood the implications of the orders passed by this Bench on 4th January, 2005 and extended subsequently on 19th January, 2005 & 28th January, 2005 and also by the Division Bench on 15th March, 2005 and 18th March, 2005 in two other different proceedings. The learned Advocate General further submits that in order to hold a person guilty of contempt of Court, two things have to be proved. Firstly, disobedience of the order passed by the Court and secondly such disobedience must be wilful. The learned Advocate General also submits that in the instant case there is no wilful violation and therefore, this contempt application should be dismissed. The learned Advocate General relied on the following decisions in support of his aforesaid contentions:
1. [All India Regional Rural Bank Officers Federation and Ors. v. Government of India and Ors.)
2. [Anil Ratan Sarkar and Ors. v. Hirak Ghosh and Ors.)
3. [Sadhu Singh and Anr. v. R.S. Verma and Ors.)
17. The learned Advocate General also raised a preliminary objection regarding maintainability of the present contempt application on the following grounds:
1. The contempt application has been filed by the Association, which claims to be a company within the meaning of the Companies Act, 1956.
2. In the verification portion, the petition appears to have been verified by a person allegedly claiming to be General Secretary. A company within the meaning of the Companies Act, 1956 cannot have a General Secretary and in any event, the verification in respect of a company has to be a Principal Officer of the company as defined under the Companies Act.
3. The person verifying the petition is not a Principal Officer of the company and thus, has no authority to affirm the instant contempt application.
4. In the writ petition No. 2252 of 2004. All Bengal Excise Licensees' Association was a party respondent. The order passed by the Hon'ble Division Bench of High Court at Calcutta was equally binding on them as well.
5. The Hon'ble Division Bench in its order dated 15th March, 2005 specifically held that an Association of Excise Licensees has no locus standi to present the writ petition and therefore, the present association is not competent to file and maintain the present contempt application.
18. It has been submitted on behalf of the alleged contemnors that the advertisement for holding lotteries in the district of North 24-Parganas was issued after the Hon'ble Division Bench vacated the interim order by its Judgment and Order dated 15.03.2005 by inter alia holding that there has been no infringement of legal or fundamental rights of the members of the writ petitioners being the Association of the existing license holders. The Hon'ble Division Bench also held that balance of convenience and inconvenience is in favour of refusing injunction and lastly it held that the petitioners would not suffer irreparable loss and injury if injunction is not granted.
19. It is the clear stand of the alleged contemnors that they did not act wilfully or deliberately in violation of the order dated 04.01.2005. The alleged contemnors also stated in their respective affidavit that based on the understanding, no lotteries were held in any other district other than the district of North 24-Parganas. If there was any intention to violate the order dated 04.01.2005 wilfully and deliberately, then publications would not have been restricted to the District of North 24 Parganas only.
20. The learned Advocate General further submits that the alleged contemnors herein committed unintentional mistake in understanding or interpreting the orders passed by the Hon'ble Division Bench as well as this Bench and such unintentional mistake cannot be regarded as an act of contempt as alleged or at all. The learned Advocate General relied upon the following decisions in support of his arguments:
1) 1987(1) CHN 446 (S.K. Sana and Anr. v. Gokul Chandra Dhara) [Paras 2-4, 8-11]
2) (Welfare Association of Absorbed Central Government Employees in Public Enterprises and Anr. v. Arvind Verma and Ors.)
3) (2001)3 SCC 739 (Mrityunjoy Das and Anr. v. Sayed Hasibur Rahaman and Ors.) [Paras 5-6. 13,14-18]
4) (Anil Ratan Sarkar and Ors. v. Hirak Ghosh and Ors.) [Para 15]
5) [Sadhu Singh and Anr. v. R.S. Verma and Ors.)
6) (All India Regional Rural Bank Officers Federation and Ors. v. Government of India and Ors.) [Paras 1 & 4]
21. It is true that the Division Bench of this Hon'ble Court in two separate proceedings considered the similar and identical issues which were raised in the writ petition filed before this Bench being W.P. No. 2248 of 2004 and therefore, the alleged contemnors reasonably believed that the order of injunction granted by this Bench in the writ petition being W.P. No. 2248 of 2004 cannot remain operative notwithstanding the aforesaid orders passed by the Hon'ble Division Bench.
22. The alleged contemnors herein, in my opinion, did not understand the implications and/or consequences of a prohibitory order passed in an independent proceeding and by sheer misconception thought that there is no bar to issue excise licenses in view of the aforesaid orders dated 15th March, 2005 and 18th March, 2005 passed by two different Division Benches of this Hon'ble Court. Failure to understand the implications and/or consequences of the order passed by this Bench cannot be construed as an act of contempt.
23. The Supreme Court in the case of Mrityunjoy Das & Anr. (supra) specifically observed that the powers under the Contempt of Courts Act should be exercised with due care and caution and for larger interest. In the aforesaid decision, the Hon'ble Supreme Court has specifically discussed the burden and standard of proof and quoted the observations of Lord Denning in this regard. The relevant extract from the aforesaid decision of the Hon'ble Supreme Court is quoted hereunder:
14. The other aspect of the matter ought also to be noticed at this juncture, viz., the burden and standard of proof. The common English phrase "he who asserts must prove" has its due application in the matter of proof of the allegations said to be constituting the act of contempt. As regards the "standard of proof, be it noted that a proceeding under the extraordinary jurisdiction of the Court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such, the standard of proof required is that of a criminal proceeding and the breach shall have to be established beyond reasonable doubt. The observations of Lord Denning in Bramblevale Ltd. Re, lend support to the aforesaid. Lord Denning in Re Bramblevale stated: All ER pp. 1063H and 1064B.
A contempt of Court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond reasonable doubt. It is not proved by showing that, when the man was asked about it, he told lies. There must be some further evidence to incriminate him. Once some evidence is given, then his lies can be thrown into the scale against him. But there must be some other evidence ....Where there are two equally consistent possibilities open to the Court, it is not right to hold that the offence is proved beyond reasonable doubt.
24. In the case of Welfare Association of Absorbed Central Government Employees in Public Enterprises and Anr. v. Arvind Verma and Ors. , Hon'ble Supreme Court specifically observed that when there is some genuine doubt on the part of the respondents in construing and giving effect to the Judgment, there is no contempt.
25. The Hon'ble Supreme Court also in the case of Sadhu Singh and Anr. v. R.S. Verma and Ors. specifically held that recourse to contempt proceedings is not a proper course to resolve a controversy existing with regard to the interpretation of Judgments.
26. In the light of the aforesaid decisions of the Hon'ble Supreme Court let me now examine whether the alleged contemnors have committed any contempt of this Court. Undisputedly this Bench on 4th January, 2005 passed an interim order restraining the alleged contemnors from holding any lottery for the purpose of final selection of the excise shops in question without obtaining further order from this Court but the alleged contemnors published an advertisement in the daily newspaper for holding lottery for the purpose of final selection of excise shops in question. Therefore, there is no doubt that the alleged contemnors have disobeyed the specific direction passed earlier by this Bench.
27. The Division Bench of this Hon'ble Court in two different proceedings passed two separate orders on 15th March, 2005 and 18th March, 2005 respectively whereby and whereunder the alleged contemnors herein were permitted to grant excise licenses. The alleged contemnors herein reasonably understood that the orders passed by the Division Bench will have the overriding effect on the order passed by the learned single Judge of this Hon'ble Court and thus committed mistake by not realising the implications of the order passed by this Bench which remained operative at the relevant time.
28. If there is any doubt regarding interpretation and/or understanding of the orders passed by the Courts of law, the alleged contemnors are entitled to have the benefit or advantage of such a doubt, as the act of contempt must be established beyond all reasonable doubt.
29. In the aforesaid circumstances, it cannot be said that the alleged contemnors herein wilfully and deliberately violated the solemn order passed by this Bench on 4th January, 2005. Mere disobedience of an order is not sufficient to hold any one guilty under the Contempt of Courts Act unless such disobedience is deliberate and wilful.
30. Mr. Mukherjee, learned senior counsel of the writ petitioners although cited various decisions in support of his arguments but in the facts of the present case, those decisions are not at all applicable since I have specifically held that the alleged contemnors herein were confused by the two separate orders dated 15th March, 2005 & 18th March, 2005 passed by the Hon'ble Division Bench and could not realise the implication and/or effect of the order passed earlier by this Bench.
31. The learned Advocate General also raised serious other objections regarding maintainability of the present contempt application which have been specifically mentioned hereinbefore. The learned Advocate of the petitioners herein did not deal with the same effectively at the time of hearing of this matter and in my considered opinion; those objections regarding maintainability of the contempt petition are also not devoid of merit. However, as I have already held that the alleged contemnors herein did not wilfully and deliberately disobey the earlier order passed by this Bench, no step can be taken against the said alleged contemnors.
32. Although the alleged contemnors in their respective affidavits have tendered unqualified apology after categorically stating therein that they had no intention to wilfully or deliberately violate the order passed earlier by this Bench but in view of the observations made hereinbefore, I am not inclined to go into the question of apology.
For the aforementioned reasons, this Contempt Petition fails and the same is accordingly dismissed without any order as to costs.
All parties concerned are to act on a xerox signed copy of this Judgment and order on the usual undertaking.