Union Of India vs Chinamai Basumatary @ Sarkar And 5 ...
2023 Latest Caselaw 4498 Gua

                                                               Page No.# 1/7



                                                        REPORTABLE


GAHC010237042023




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : CRP/170/2023

         UNION OF INDIA
         REPRESENTED BY DEPUTY INSPECTOR GENERAL SHQ SSB
         BONGAIGAON, DIST-BONGAIGAON, ASSAM



         VERSUS

         CHINAMAI BASUMATARY @ SARKAR AND 5 ORS.
         W/O LATE GOURANGA CHANDRA SARKAR, PRESENT R/O HABRUBARI,
         KOKRAJHAR, P.O., P.S. AND DIST-KOKRAJHAR (BTR, ASSAM), PIN-

         2:HIRA RANI SARKAR
          HABRUBARI KOKRAJHAR PO PS AND DIST KOKRAJHAR

         3:HIRA RANI SARKAR @ BASUMATARY
          D/O LATE GOURANGA CHANDRA SARKAR
          PRESENT R/O HABRUBARI
          KOKRAJHAR
          P.O.
          P.S. AND DIST-KOKRAJHAR (BTR
         ASSAM)
          PIN- (BEING MINOR REPRESENTED BY HER MOTHER
          RESPONDENT NO. 1)

         4:MINATI SARKAR
         W/O LATE GOURANGA CHANDRA SARKAR
          R/O VILL-SAREYARPAR
          P.O.-BALAIRHAT
          P.S. AND DIST-COOCH BEHAR (WEST BENGAL)
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            5:GABINDA SARKAR
             S/O LATE GOURANGA CHANDRA SARKAR
             R/O VILL-SAREYARPAR
             P.O.-BALAIRHAT
             P.S. AND DIST-COOCH BEHAR (WEST BENGAL)

            6:ANJALI SARKAR
             D/O LATE GOURANGA CHANDRA SARKAR
             R/O VILL-SAREYARPAR
             P.O.-BALAIRHAT
             P.S. AND DIST-COOCH BEHAR (WEST BENGAL)

            7:BHAGYASHREE SARKAR
             D/O LATE GOURANGA CHANDRA SARKAR
             R/O VILL-SAREYARPAR
             P.O.-BALAIRHAT
             P.S. AND DIST-COOCH BEHAR (WEST BENGAL

Advocate for the Petitioner   : MR. K GOGOI

Advocate for the Respondent :




                           BEFORE
      HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

                                        ORDER

06.11.2023

Heard Mr. K. Gogoi, learned counsel for the petitioner.

2. The Title Suit No. 27/2018 had been instituted by Chinamai Basumatary @ Sarkar being the second wife of late Gouranga Ch. Sarkar and Hira Rani Sarkar, daughter of late Gouranga Ch. Sarkar before the learned Court of Munsiff at Kokrajhar against the respondents No. 1, 2, 3 and 4, respectively being the wife and children of the first wife of the deceased Gouranga Ch. Sarkar. The petitioner second wife claims for a portion of the pensionery benefits of the Page No.# 3/7

deceased Gouranga Ch. Sarkar wherein the Director General, Government of India in the Ministry of Home Affairs Sashastra Seema Bal (for short S.S.B.); Inspector General, S.S.B.; Deputy Inspector General, S.S.B. and the Area Organizer, S.S.B. at Kokrajhar were arrayed as proforma defendants.

3. By the order dated 09.09.2019 in Misc(J) Case No.17/2018, amongst others, the following order as extracted was passed:

"In this case she had prayed for injunction restraining the opposite

parties to receive the service benefit of late Gauranga Ch. Sarkar but the same is not sustainable as discussed above. However, for the peculiar facts and circumstances of this case the D.D.O of Late Gauranga Ch. Sarkar is at liberty to disburse eight percent of service benefit of Late Gauranga Ch. Sarkar in favour of opposite parties and for the remaining twenty percent be withheld till disposal of the Title Suit No.27/2018."

4. In this case, it has been informed that the expression 'eight percent' in the order dated 09.09.2019 is to be read to be 'eighty percent' and it is a typographical error.

5. The purport of the order of the learned Munsiff is that the departmental authority would be at liberty to disburse eighty percent of the pensionery benefit of the deceased Gauranga Ch. Sarkar in favour of the respondent Minati Sarkar and others, whereas the remaining twenty percent be withheld till the disposal of the title suit being Title Suit No.27/2018. The plaintiff Chinamai Page No.# 4/7

Basumatary @ Sarkar instituted Misc. Appeal No.03/2019 before the learned Civil Judge Kokrajhar and in the appeal, by the order dated 24.09.2019, the earlier order of the learned Munsiff dated 09.09.2019 was stayed. Accordingly, the departmental authorities had released the pensionery benefit in favour of the first wife namely, Minati Sarkar and in the circumstance, the respondent Chinamai Basumatary @ Sarkar had instituted Misc.Contempt Case No.01/2022 before the learned Civil Judge Kokrajhar. From a reading of the petition in Misc. Contempt Case No.01/2022, it is noticed that the said application is under Section 2(b) read with Section 12 of the Contempt of Courts Act. The learned Civil Judge by the order dated 20.01.2022 had registered the contempt case and accordingly issued notice and fixed the matter for hearing. Accordingly, under the signature of the learned Civil Judge Kokrajhar dated 14.07.2022, a notice of contempt was issued, amongst others, to the Area Organiser, SSB in the office of the Deputy Inspector General at Bongaigaon.

6. Being aggrieved, the Union of India through the SSB has instituted this petition under Article 227 of the Constitution of India. Firstly, it is noticed that the learned Munsiff had passed the order dated 09.09.2019 allowing the departmental authorities under the SSB to disburse eighty percent of the pensionery benefits to the first wife, namely, Minati Sarkar and not to disburse the balance twenty percent. Against that, the second wife Chinamai Basumatary @ Sarkar went in appeal and the appellate court by the order dated 24.09.2019 had stayed the order dated 09.09.2019 of the learned Munsiff. The implication of the stay order passed by the appellate court in respect of the order dated 09.09.2019 would be that even the provision requiring eighty percent to be disbursed to the first wife i.e. Minati Sarkar and to withhold the balance twenty Page No.# 5/7

percent had also been stayed and there is no obligation on the departmental authorities to follow the same, meaning thereby, that the departmental authorities can proceed in the manner as they had proceeded earlier as regards the disbursement of the entire pensionery benefits to the first wife Minati Sarkar. From such point of view, no violation of the appellate order dated 24.09.2019 of the learned Civil Judge is noticed. Secondly, it is also noticed that the contempt petition had been instituted by the second wife Chinamai Basumatary @ Sarkar under Section 2(b) read with Section 12 of the Contempt of Courts Act. Section 2(b) of the Contempt of Courts Act defines Civil Contempt to be a willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court. As already noticed, no such act on the part of the present petitioner being the authorities under the SSB as regards any willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court is referred. Secondly, it is also noticed that the contempt petition had been instituted under Section 12 of the Contempt of Courts Act 1971. Section 12 of the Contempt of Courts Act 1971 provides for a punishment of simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both. But Section 12 has to be read along with Section 11 of the Contempt of Courts Act 1971 in order to determine as to which Court would have the jurisdiction to register a contempt proceeding and to issue contempt notice. Section 11 of the Contempt of Courts Act 1971 is as extracted:

Section 11. Power of High Court to try offences committed or offenders found outside jurisdiction.--A High Court shall have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether Page No.# 6/7

the person alleged to be guilty of contempt is within or outside such limits. --A High Court shall have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits."

7. A reading of the provision of Section 11 makes it explicit that it is only the High Court which shall have the jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it. Section 11 makes it further explicit that the High Court shall have jurisdiction to inquire into or try a contempt of courts subordinate to it, meaning thereby that even if there is a violation of an order of a learned Civil Judge, it would be the High Court which would have the jurisdiction to inquire into or try a contempt of any such order. From such point of view, it is prima facie, noticed that the learned Civil Judge Kokrajhar did not have the jurisdiction under Section 12 of the Contempt of Courts Act to either register a contempt proceeding in Misc. Contempt Case No.01/2022 or to issue a contempt notice upon the petitioner being the authorities under the SSB.

8. Considering the balance of convenience and the irreparable loss that the petitioner may suffer, in the interim, the contempt proceeding in Misc. Contempt Case No.01/2022 before the learned Civil Judge, Kokrajhar shall remain stayed until further order(s).

9. Issue notice, returnable by six weeks.

10. Petitioner to take steps for service of notice on the respondents by Page No.# 7/7

registered post with A/D within three days.

11. Call for the records of T.S. No.27/2018 along with Misc.(J). Case No.17/2018 from the Court of the learned Munsiff at Kokrajhar.

12. List after six weeks.

JUDGE

Comparing Assistant