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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CONTEMPT PETITION No.276 OF 2016
1. Sasidharan Nair s/o. Ramakrishnan Nair,
Aged 67 years, Occupation : Retired.
R/o. Plot No.18, R.K. Bhawan, Dubey Layout,
Rukhmini Nagar, Nagpur-440 013.
2. K.N. Ramakrishna Pillai s/o.
Aged about 60 years,
Occupation : Business,
C/o. Bharat tyres, Hiwari Layout,
old Bagadganj Road, Nagpur-440 008.
3. Gopinathan Nair s/o. Gopalan Nair,
Aged about 55 years,
Occupation : Retired,
R/o. Dattawadi, Wadi, Nagpur.
4. Somashekaran Nair s/o. Madhava Panikar,
Aged about 63 years,
Occupation : Business,
R/o. Plot No.2/15, Irrigation Society,
Taya Tope Nagar, Nagpur.
5. Mohanan Nair s/o. Madhavan Unnithan,
Aged about 64 years,
Occupation : Private Service,
R/o. 52, Choudhari's Layout, Anand Nagar,
Nagpur. : PETITIONERS
...VERSUS...
1. Vikraman Nair s/o. Dhamodharan Nair,
President,
Ayyappa Samajam, Nagpur. (N.A. 4)
2. Vaikath Govindhan Nair,
Vice-Presidnet,
Ayyappa Samajam, Nagpur. (N.A.No.33)
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3. Shree Kumar Pillai s/o. Padmanabhan Pillai,
Secretary, Ayyappa Samajam, Nagpur. (N.A.No.11)
4(a) Arvindaksha Kurup s/o. Purushothama Kurup,
Joint Secretary, Ayyappa Samajam, Nagpur.
(b) B. Unnikrishnan,
Joint Secretary,
Ayyappa Samajam, Nagpur.
5. Mrs. Ambika w/o. Ananda Kurup,
Treasurer,
Ayyappa Samajam, Nagpur. (N.A.No.14)
6. Dhamodharan Nair s/o. Kuttikrishnan Nair,
M.C. Member,
Ayyappa Samajam, Nagpur.
7. Ashokan s/o. Krishnan,
M.C. Member,
Ayyappa Samajam, Nagpur.
8. Gopakumar Pillai s/o. Thankappan Pillai,
M.C. Member,
Ayyappa Samajam, Nagpur.
9. Vishwanathan s/o. Thankappan,
M.C. Member,
Ayyappa Samajam, Nagpur.
10. Ashish Babu,
M.C. Member,
Ayyappa Samajam, Nagpur.
11. Ramachandran Nair,
M.C. Member,
Ayyappa Samajam, Nagpur. (N.A. No.94)
12. Mrs. Omana w/o. Vijaykumar
through S.P. Nair (N.A. No.13),
M.C. Member,
Ayyappa Samajam, Nagpur.
13. Mrs. Laxmi w/o. Sanjay Menon,
through Rajagopalan (N.A. No.27)
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M.C. Member,
Ayyappa Samajam, Nagpur.
[Respondent Nos.1 to 13 are discharged
from proceedings as Contempt Petition is
not maintainable against them vide
Court's order dt.9.6.2017.]
14. K.P. Vasu,
M.C. Member,
Ayyappa Samajam, Nagpur. (N.A. No.84)
15. P.P. Sudhakaran, Contractor,
through Pachukutty (N.A. No.17)
Near Water Tank, Wanjari Nagar, Nagpur.
16. Indrapalsingh s/o. Kanchan Prasad,
through Kanchan Prasad (N.A. No.43),
Assistant Accountant,
S.E.C. Railway, Division No.1,
Nagpur 440 001.
17. Radhakrishnan s/o. Kunju Pillai (N.A. No.70),
Aged about 68 years, Occupation : Retired,
115, Rajaram Society, Rukhmini Nagar,
Nagpur-440 013.
18. Chandrashekara Kurup (N.A. No.41)
Aged about 67 years,
Occupation : Retired,
R/o. Royal Apartment, Rathod Layout,
Anand Nagar, Nagpur 440 013.
Respondent Nos.1 to 14, c/o. Manager,
Office of the Ayyappa Temple,
Poonkavanam, Ayyappa Nagar,
Ring Road, Nagpur- 440 013. : RESPONDENTS
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Shri K.K. Pillai, Advocate for the Petitioners.
Shri G.N. Khanzode, Advocate for the Respondent Nos.14 to 18.
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CORAM : S.B. SHUKRE, J.
th DATE : 18 SEPTEMBER, 2017.
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ORAL JUDGMENT :
1. Heard Shri K.K. Pillai, learned counsel for the petitioners and Shri G.N. Khanzode, learned counsel for respondent Nos.14 to 18.
2. By this petition, the jurisdiction of this Court has been invoked under Sections 10 and 12 of the Contempt of Courts Act by the petitioner.
3. The petition rests on the ground that the respondent Nos.14 to 18 have committed a clear cut and willful breach of the order of injunction passed by the learned Joint Charity Commissioner on 2 nd February, 1994 in Application No.9 of 1993. The breach of the order dated 2.2.1994, according to the petitioner, is evident from a particular act committed by the respondent Nos.14 to 18 on 25th May 2016. In paragraph 11 of the petition, it is stated that on or about 25 th May, 2016, the respondent No.14 along with respondent Nos.15 to 18, the alleged plot holders, constructed two sheds by using bamboo mats and wooden poles on the land belonging to Ayyappa Samajam, a registered public trust. It is also alleged that these respondents have threatened to construct more shades and houses by other alleged plot holders and further threatened to start residing in this property. According to the petitioner, this particular act committed on or about 25 th May 2016 by respondent Nos.14 to 18 amounts to willful breach of injunction order dated 2.2.1994 passed by the Joint Charity Commissioner and confirmed ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:22:20 ::: J-cp276.16.odt 5/13 by the District Court as well as this Court.
4. So far as the allegations made against these respondents are concerned, following operative portions of the order dated 2.2.1994 passed by the Joint Charity Commissioner, Nagpur are relevant and therefore reproduced thus :
"I, hereby order that the non-applicants nos.11 to 101 are hereby restrained by Rule of injunction from any way either entering upon or interfering or dealing with the property alleged to have been sold to them under the Sale- Deeds by non-applicants nos.1 and 2 out of the property of the Trust "Ayyappa Samajam Nagpur" bearing Khasra Survey No.247/1 having 6.97 acres involved in the present proceeding or using them either by themselves or by their agents or representatives etc. in their favour respectively.
2. They are further restrained from changing its use or having any sort of construction thereon."
5. The respondent No.14 is non-applicant No.84, respondent No.17 is non-applicant No.17 and respondent No.18 is non-applicant No.41 in the application filed before the learned Joint Charity Commissioner. The respondent Nos.15 and 16 were not non-applicants therein. But, the petitioners claim that these respondents could also be fastened with the same knowledge and liability as the other respondents because both of them are claiming through the original non-applicant No.17, one Mr. Pachikutti and original non-applicant No.43 one Mr. Kanchanprasad respectively being father-in-law and father of respondent Nos.15 and 16 to the present contempt petition.
6. It would be clear from the above that grievance of the ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:22:20 ::: J-cp276.16.odt 6/13 petitioner arises from the breach of injunction order dated 2.2.1994 passed under Section 41-E of the Maharashtra Public Trusts Act (MPT Act for brevity). Of course, learned counsel for the petitioners submits that the grievance of the petitioners is not restricted to just breach of the order passed by the Joint Charity Commissioner and it extends to breach of the order passed by the District Court and this Court also.
7. The submission of learned counsel for the petitioners cannot be accepted for the reason that there is no dispute about the fact that the order passed by the District Court does no more than confirmation of the injunction order dated 2.2.1994, passed by the Joint Charity Commissioner and same is true about the order of the High Court passed on 20th February, 2007 in First Appeal No.430/2001 whereby the appeal preferred against the order of the Joint Charity Commissioner and the District Court, the date of which is not known because it is not filed on record of the case, has been dismissed. The operative portion of the order of this Court dated 20th February, 2007 is reproduced as below :
"Since no substantial question of law arises for consideration in this First Appeal, the First Appeal is dismissed with no order as to costs."
8. It would be clear from the order dated 20 th February, 2007 that this Court has, by dismissing the appeal, done nothing, but confirmed the injunction order dated 2.2.1994 passed by the Joint Charity Commissioner. So, what lies at the root of the matter is nothing ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:22:20 ::: J-cp276.16.odt 7/13 but breach of the injunction order passed by the Joint Charity Commissioner and not the breach of the orders passed by the District Court and this Court, which do not add anything to the original injunction order dated 2.2.1994.
9. In the present petition, although it is claimed that on 25 th May 2016, some temporary constructions were made by the respondent Nos.14 to 18, no material has been produced on record to prima-facie satisfy this Court that these constructions were made and they were made by these respondents. Learned counsel for the petitioners has sought to take shelter in this regard in the admissions given by the respondent Nos.1 to 13 ,who have been discharged by this Court from this contempt petition as per the order passed on 9 th June, 2017, that respondent Nos.14 to 18 have made those constructions. The respondent Nos.1 to 13 were also contemnors and, therefore, their admissions, if any, could not be used by the petitioner against the co-contemnors by drawing the analogy between the statement of one contemnor against another and statement of one accused against the co-accused, to which same principle of criminal law would apply. This principle is that, statement of one accused cannot be used against co-accused, unless he is an approver to whom there is a tender of pardon as per law. Therefore, the petitioners in the present case would have to stand on their own legs in order to prove the alleged contempt of the injunction order. They must produce on record some material which at least prima-facie shows ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:22:20 ::: J-cp276.16.odt 8/13 that the alleged construction has been made and it has been made by no-one else, but respondent Nos.14 to 18. But, as stated earlier, there is not available here any such prima-facie material.
10. There is also one more reason for not accepting the admission of the co-contemnors against the rest of the contemnors. As rightly submitted by learned counsel for the respondent Nos.14 to 18, for what has been called as admission of the respondent Nos.1 to 13, is actually an allegation made by them against the co-contemnors with a view to save their own skin and, therefore, unless it is proved, it could not be used for any purpose.
11. So, what has emerged so far is, there is absolutely no material present on record, except for bald allegations of the petitioners, to even make out a prima-facie case of contempt against the respondent Nos.14 to 18. The allegations are not supported by any prima-facie material and it appears that the petitioners expect this Court to act as investigator for them to even gather prima-facie evidence. Such a petition would not be maintainable and this petition being like that only, is not maintainable here.
12. It is further seen that at least two of the respondents i.e. respondent Nos.15 and 16, were not parties to the proceedings before the learned Joint Charity Commissioner. It is the contention of the petitioners that now these respondents are claiming through their father- in-law and father respectively. This is only an averment which requires ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:22:20 ::: J-cp276.16.odt 9/13 proof to be brought on record by instituting appropriate proceedings. This cannot be done in a contempt petition like the present. So, this petition cannot be maintained against these respondents on the additional ground of their role and involvement in the matter.
13. Learned counsel for the petitioners wants this Court to record evidence to ascertain if there is a breach of order or not. There is no doubt that the evidence can be permitted to be adduced by the petitioners in order to prove the allegations of contempt against these respondents. But, this would be so only when prima-facie case is made out by the petitioners following which cognizance of contempt allegation is taken by this Court. Here, there is a dearth even on the first requirement and so question of recording of evidence does not arise.
14. There is another dimension involved here. It is that an alternate and equally efficacious remedy is available in the present case with the injunction order dated 2.2.1994 having been passed by the learned Joint Charity Commissioner in exercise of his power to act for protection of charity under Section 41-E of the MPT Act. There is a special remedy provided in this Section to deal with the allegations of the present nature. This remedy lies in sub-section 4 of Section 41-E of the MPT Act which is reproduced thus :
"sub-section (4) of Section 41-E :
In case of disobedience or breach of any injunction, any of its terms or any order passed under this section, the Charity Commissioner may apply to the Court, which ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:22:20 ::: J-cp276.16.odt 10/13 may, after hearing the Charity Commissioner and the party affected, order the property of such person, guilty of such disobedience or breach to be attached and may also order such person to be detained in jail for a term not exceeding six months. No attachment under this sub- section shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds, the Court may award such compensation as it thinks fit, and shall pay the balance, if any, to the person entitled thereto, and thereupon, the temporary injunction granted, or any order passed, by the Charity Commissioner, under this section, if in force shall stand vacated, or as the case may be cancelled."
15. A bare perusal of this Section would clearly show that a special remedy accompanied by special procedure has been prescribed for dealing with disobedience or breach of any injunction order passed by the Charity Commissioner. This special procedure requires a party to bring it to the notice of the Charity Commissioner any disobedience or breach of his injunction order and then, the Charity Commissioner may apply to the Court, which may, after hearing the Charity Commissioner as well as the party affected pass such orders as are specifically provided in it including an order for detention of the wrongdoer in jail for a term not exceeding six months.
16. The Court contemplated by sub-section 4 of Section 41-E of MPT Act is the Court, which is, in the Greater Bombay, the City Civil Court and elsewhere, the District Court, as defined under Section 2(4) of the MPT Act. In the present case, such Court would be the District Court. But, an application for proceeding against the wrongdoer under Section ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:22:20 ::: J-cp276.16.odt 11/13 41(4) of the MPT Act has to be made before it by the Charity Commissioner which he must make on being informed about breach of his injunction order. The intention of the legislature in prescribing such a special procedure appears to be that in matters of charities, Charity Commissioner is the best person to prima-facie form an opinion about breach or otherwise of his order passed to protect charities and that is the reason why power to initiate proceedings under Section 41-E(4), of the MPT Act, which proceedings are akin to and in fact even more efficacious than those under Sections 10 and 12 of the Contempt of Courts Act, is exclusively conferred upon him. This special remedy prescribed in a special statute, as per the settled law, will prevail over the general remedy provided in a general law of contempt which is the Contempt of Courts Act and so will debar the petitioners from taking recourse to the latter Act, unless extra-ordinary circumstances exist to permit such a recourse. A useful reference in this regard may be made to observations of a Division Bench of Karnataka High Court in paragraph 5 of its decision in the case of Rudraiah Vs. State of Karnataka and others, reported in AIR 1982, Karnataka, 182. I may add here that if it is otherwise held, it would throw open the flood gate of litigation under contempt jurisdiction. This Court will see many decree holders queuing up in it's hall and waiting for this Court to exercise it's contempt jurisdiction under the general law of contempt. But, that is not the purpose of the general law or the Contempt of Courts Act, 1971. It's ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:22:20 ::: J-cp276.16.odt 12/13 object is not to unwind and expand the contempt powers of the Court, but to define and limit them with a view to protect and safe-guard the dignity of Courts. This very purpose of protection of dignity of Courts, may be impaired if routinely contempt petitions for breach of injunction orders are entertained, despite availability of remedy under a special law.
17. I may add here that the procedure given under sub-section 4 of Section 41-E also makes it a complete code thereby making the application of the general law in the Contempt of Courts Act an exception, warranted by a rare fact situation. This procedure contemplates a hearing to be held by the Court, or the District Court as in the present case and it is only after hearing the Charity Commissioner and the affected party that the Court would pass an order of the nature specified in this provision, which includes detention in jail for a term upto six months, the same punishment as is prescribed for contempt of court under the general law. This provision also confers such powers upon the Court as attachment and sale of the property of the wrongdoer and also award of compensation. Similar powers, however, are not to be found in the Contempt of Courts Act. Such procedure and such powers embedded in sub-section 4 of Section 41-E of the MPT Act makes it a complete code in itself and concomitantly turns it into a wider and more efficacious remedy than under the general law of contempt. Therefore, the petitioners would be obliged to resort to such special remedy and procedure prescribed under a special statute for enforcement of the order ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:22:20 ::: J-cp276.16.odt 13/13 of the Charity Commissioner passed under Section 41-E of the MPT Act, unless they can show that this is a rare case, in which invocation of general contempt jurisdiction would be justifiable. But, they have not demonstrated any. Rather, cases of rival parties here still scrabble to find their moorings in the base of prima-facie facts. They are unlikely to discover them here considering the limitations of proceedings dominated by summary hue. This would lead me against exercise of discretion of this Court in taking cognizance of the contempt petition under the Contempt of Courts Act, 1971.
18. In view of above, I find that this petition is not maintainable before this Court and, therefore, deserves to be dismissed with requisite liberty granted.
19. The petition stands dismissed.
20. However, the petitioners shall have liberty to proceed in the matter by following the procedure prescribed under Section 41-E (4) of the Maharashtra Public Trusts Act.
21. Parties to bear their own costs.
JUDGE okMksns ::: Uploaded on - 21/09/2017 ::: Downloaded on - 22/09/2017 01:22:20 :::