Ahmednagar Municipal Council, ... vs Suresh Shankar Gangarde
2002 Latest Caselaw 1330 Bom

JUDGMENT

N.V. Dabholkar, J.

1. Heard Advocates Shri S.B. Deshmukh and Shri L.B. Pallod for respective parties.

2. Rule. Rule made returnable forthwith by mutual consent.

The short point that was argued and is being considered in this writ petition is :

"Whether Chief Judicial Magistrate, Ahmednagar was competent to entertain an application by party before it and make a reference to High Court under section 15(2) of the Contempt of Courts Act, 1971, for appropriate action. "

3. The factual background, which gives rise to present controversy, can be stated, in brief, as follows :-

Petitioner-Municipal Council carried out revision of house taxes in the year 1985-86 and fixed annual rental value of the house property owned by respondent at Rs.4,698/-. Revision petitioner preferred tax appeal under section 169 of the Maharashtra Municipalities Act against the said revision of annual rental value. It was Tax Appeal No.55 of 1987. The same was dismissed by Chief Judicial Magistrate on 17.1.1988. Respondent preferred Criminal Revision No.130 of 1990 before the Sessions Court, which was partly allowed on 16.2.1994 and annual rental value was brought down to Rs.2,700/-.

Admittedly, there was no revision in the year 1989-90. By the notice dated 20.9.1995, Municipal Council issued notice to respondent proposing further revision of annual rental value and house tax. It was proposed to revise the annual rental value to Rs.7,442/-. In the said notice, Municipal Council indicated earlier annual rental value to be Rs.4,698/-, ignoring that respondent had succeeded in his Tax Appeal, although before revisional forum in bringing down the annual rental value to Rs.2,700/-. On 1.2.1996 Municipal Council issued a bill claiming house tax on the basis of annual rental value Rs.7,442/-.

Respondent took an exception to this action of the Municipal Council by presenting an application before the Chief Judicial Magistrate on 13.2.1996. It was claimed that, by issuing a demand notice for payment of house tax, on the basis of annual rental value Rs.7,442/-, Municipal Council had committed criminal contempt, when respondent had succeeded in bringing down the annual rental value to Rs.2,700/- by ultimate result of tax appeal under section 169 before the revisional Court. Although Municipal Council has filed a writ petition before this Court challenging the decision of Criminal Revision No.130 of 1990, admittedly, no stay is granted of the impugned order bringing down the annual rental value to Rs.2,700/-. It is common ground that in or around November, 1999, Municipal Council issued a cheque of Rs.2,500/- in favor of respondent towards refund of excess house tax paid by calculating the house tax on the basis of annual rental value Rs.7,442/-. The cheque was not accepted by the respondent.

4. Considering the contentions raised by both the parties, learned Chief Judicial Magistrate, Ahmednagar, vide his order dated 19.2.1998, arrived at the conclusion that there was contempt of the Court and the matter is required to be referred to the High Court. This order passed in Criminal Misc. Application No.84 of 1996 was challenged by the Municipal Council before the Sessions Judge, Ahmednagar in the form of Criminal Revision No.88 of 1998. The revision petition was rejected by Additional Sessions Judge, Ahmednagar vide his judgment and order dated 16.6.2000. It is at this stage, the Municipal Council has approached this Court.

5. The contention, whether the action alleged amounts to civil contempt or criminal contempt as defined by section 2(b) or (c) of the Contempt of Courts Act, 1971, whether the action alleged, if at all amounts to contempt, whether taking cognizance of the contempt on the basis of bill dated 1.2.1996, now would be barred by limitation in view of section 20 of the Contempt of Courts Act, 1971, are the issues, although referred by Advocate Shri Deshmukh, left untouched by this Court. These are the issues to be dealt with by this Court when the reference is received and this Court will be required to consider, whether cognizance of the alleged contempt is to be taken on the basis of reference. Mr. Deshmukh has, therefore, not elaborated his arguments on these points and these points are left open.

6. Advocate Shri Deshmukh, while arguing that Chief Judicial Magistrate is not at all competent to make a reference under section 15(2) of the Contempt of Courts Act, has placed reliance upon section 395, sub-section (2) of Code of Criminal Procedure, 1973, which reads as follows :-

"395 (2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit, in any case pending before it or him, to which the provisions of sub-section (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case.

According to Advocate Shri S.B. Deshmukh, although the phrase "subordinate court" is used in section 15(2) of the Contempt of Courts Act, the same term is not defined by the definition clause in section 2 of the said Act. The provisions regarding reference, as contained in section 395 would, therefore, govern the procedure for making the reference under section 15(2) of the Contempt of Courts Act. As section 395(2) contemplates only Court of Session or a Metropolitan Magistrate, according to Advocate Shri Deshmukh; no other Court would be competent to make a reference under section 15(2) of the Contempt of Courts Act.

7. In order to answer the question raised by Mr. Deshmukh, which is crystallized in the form of an issue in the earlier part of this judgment, section 15(2) of the Contempt of Courts Act, section 395(2) of the Code of Criminal Procedure, are required to be read in the light of section 5 of Code of Criminal Procedure, which is a saving provision.

8. Section 395(2) is reproduced hereinabove for convenient reference and terminal part of the same is underlined for the purpose of emphasis. On reading sub-sections (1) and (2) together, it can be seen that section 395 of Code of Criminal Procedure, 1973 contemplates two types of references. The one covered by sub-section (1) is a reference involving a question as to the validity of any Act, Ordinance or Regulation or validity of any provision contained in an Act, Ordinance or Regulation. Such a reference can be made by any Court, which is satisfied that in a case pending before that Court, question of such validity is required to be answered for disposal of that case. The reference contemplated by sub-section (2) is some what of different nature. By this sub-section, the Court of Sessions or Metropolitan Magistrate can seek a decision of the High Court on any question of law which arises in a matter pending before that Court.

If these aspects are taken into account, it is difficult to accept submission of Advocate Shri Deshmukh, that sub-section (2) of section 395 has any application to a reference contemplated by section 15(2) of the Contempt of Courts Act. Action desired by a party which moves the subordinate Court for a reference under section 15(2) of the Contempt of Courts Act, is aimed at penal consequences against alleged contemner. The subordinate Court, if satisfied that a contempt has occurred, has powers to make a reference. Section 15(2) of the Contempt of Courts Act, nowhere contemplates High Court to answer a question of law arising in a matter pending before the subordinate Court, as in section 395(2) of Criminal Procedure Code.

9. Section 15(2) of the Contempt of Courts Act, 1971 reads as follows :-

"15 (2) In the case of any criminal contempt of subordinate Court, the High Court may take action on a reference made to it by the subordinate Court or on a motion made by the Advocate General or,....."

Sub-section (2) of section 15 enables a subordinate Court to make a reference to the High Court for action regarding any criminal contempt of that subordinate Court. The term "subordinate Court", in the opening part is not prefixed with any "article", but the same term is prefixed with article "the" in the subsequent part. Thus, "subordinate Court" referred in the subsequent part is the same subordinate Court which is referred in the earlier part i.e. the subordinate Court against whom any criminal contempt is committed. On reading sub-section (2) of section 15, it can be seen that the Court against whom the criminal contempt is committed, is empowered to consider the matter and make a reference to the High Court for appropriate action against such criminal contempt.

10. If submission of Advocate Shri Deshmukh is to be accepted, section 395(2) of the Code of Criminal Procedure will have to be treated as the provision controlling the section 15(2) of the Contempt of Courts Act. There is no such indication in either of the provisions. Section 395(2) does not begin with non-obstante clause to have any overriding effect over and above section 15(2) of the Contempt of Courts Act. On the contrary, on refering to section 5 of the Code of Criminal Procedure, which is a saving provision, the position appears to be just the opposite. The said provision reads as follows :-

"5. Saving.- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. "

As already discussed above, it is difficult to swallow the argument that reference referred in section 395(2) of the Code of Criminal Procedure would cover also the reference under section 15(2) of the Contempt of Courts Act. On the contrary, section 15(2) of the Contempt of Courts Act prescribes its own procedure and in the absence of section 395(2) having any overriding effect, by virtue of saving clause, the procedure prescribed by section 15(2) should prevail so far as reference for action against the contempt of Court is concerned.

11. Advocate Shri Deshmukh placed reliance on a Division Bench judgment of this High Court reported in 1975 CRI.L.J. 531, Prabhakar Laxman Mokashi vs. Sadanand Trimbak Yardi & others and more particularly, contents in para 26 of the judgment. The contents of the judgment relied upon by Mr. Deshmukh do not touch the issue which he has agitated before this Court. It only lays down that in the matters of references, the Courts making reference must write a reasoned order for making such reference and the practice prevailing prior to the coming into force of Contempt of Courts Act, 1971 of making a reference in the form of a letter, was not proper.

12. For the reasons discussed above, the contention of Advocate Shri Deshmukh, that no other Courts, except Sessions Judge and Metropolitan Magistrate can make a reference under section 15(2) of the Contempt of Courts Act, is not sustainable. Any subordinate Court, against whom any act amounting to contempt is committed, is competent to make a reference to the High Court.

13. The writ petition is, therefore, dismissed. Rule discharged. All other issues left open.