Sasidharan Nair S/O Ramakrishnan ... vs Vikraman Nair S/O. Dhamodharan ...
2017 Latest Caselaw 7252 Bom

        J-cp276.16.odt                                                                                                  1/13  


                    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

        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri K.K. Pillai, Advocate for the Petitioners.
        Shri G.N. Khanzode, Advocate for the Respondent Nos.14 to 18.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-

                                                      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

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

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

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

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

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

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

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

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

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