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HIGH COURT OF CALCUTTA
G. N. Das, K. C. Das Gupta
NABA KUMAR SAHA - Appellant
Versus
S. BANERJEE - Respondent
Misc. Case 350 Of 1951
Decided On : DECEMBER 11, 1951
CONTEMPT OF COURT - DISOBEDIENCE OF COURT ORDER - PERSONAL SERVICE OF ORDER - NECESSITY - EXCEPTIONS - LACK OF DILIGENCE ON THE PART OF COURT OFFICE.
Fact of the Case:
The petitioner filed a writ petition seeking a mandamus restraining the opposite parties from further proceeding with the acquisition of his lands. An interim injunction was granted restraining the opposite parties from inducting any further incumbrances and from cutting down any further trees or standing crops on the lands of the petitioner. The rule was made absolute in terms similar to those of the said rule. The petitioner alleged that the opposite parties had not complied with the order and filed a rule nisi for contempt of court.
Finding of the Court:
The court found that the order of the court was not personally served on any of the opposite parties before the rule for contempt was issued. The court also found that the office of the court had not issued copies of the order to the opposite parties till 13th November 1951, despite the order being extremely urgent and requiring compliance forthwith or within one month.
Issues: 1. Whether the opposite parties could be committed for contempt of court for non-compliance of the court order without personal service of the order? 2. Whether the state could not comply with the order of the court within the prescribed time due to administrative difficulties?
Ratio Decidendi: 1. Disobedience of a court order can only be held to be wilful if the order is served. Personal service of the judgment or order is necessary, except in certain exceptions, such as prohibitive orders, orders embodying an undertaking to do an act by a named day, orders to answer interrogatories or discovery or inspection of documents, where an order for substituted service has been made, or where the respondent has evaded service of the order. 2. The state could have availed itself of the liberty to mention the matter to the court, which was expressly reserved by the order of the court, if it found it difficult to comply with the order.
Final Decision: The rule for contempt was discharged on the ground that the order of the court was not personally served on the opposite parties. The court also directed the parties to bear their own costs.
( 1 ) THIS rule was issued on 9-11-1951 by P. N. Mookerjee J. "calling upon Mr. S. Eanerji, Secretary to the Government of West Bengal, and the Collector of Howrah to show cause why they should not be committed for contempt of this Court for alleged non-compliance with the order dated 27-8-1951 and made in C. R. 436 of 1951, or such other or further order made as to this Court may seem fit and proper".
( 2 ) THE rule was made returnable on November 14, 1951, and it was directed that the matter might be put up before the learned Judge (P. N. Mukherji J. ). On November 14, 1951 the learned Judge adjourned the hearing of the rule for one week on the prayer of the opposite parties which was not objected to by the learned Advocate for the petitioner.
( 3 ) BY an order dated 21-11-1951 passed by the learned Chief Justice, the case was directed to be placed before the Bench presided over by me.
( 4 ) THE case was thereupon heard by myself and Das Gupta J.
( 5 ) I shall first state the facts which led up to this rule.
( 6 ) ON an application supported by an affidavit of the petitioner Naba Kumar Sana alias Rajendranath Saha, Bose J. issued a rule "calling upon the opposite parties to show cause why a writ in the nature of Mandamus should not issue restraining them from further proceeding with the matter of acquisition of the lands of the petitioner mentioned in the petition or why such or further order or orders should not be made as to this Court may seem fit and proper".
( 7 ) 'ad interim' injunction restraining the opposite parties from inducting any further incumbrances and from cutting down any further trees or standing crops on the lands of the petitioner was granted pending the hearing of the rule.
( 8 ) THE only opposite parties to this rule were (1) Mr. S. Banerji, Secretary to the Government of West Bengal, (2) The Collector of Howrah.
( 9 ) AN affidavit, on behalf of the opposite parties was filed.
( 10 ) THE rule w,as heard and disposed of by me on August 27, 1951, by the following order passed in the presence of the learned Advocates for the parties:"for the reasons given by me in Civil Revision Case No. 1678 of 1950 disposed of by me today, 1 make the rule absolute in terms similar to those of the said rule. The petitioner will be entitled to the costs of this rule, hearing fee being assessed at one Gold Mohur".
( 11 ) IN order to understand the above order, it it necessary to set out the relevant portion of the. order passed in Civil Revision case No. 1678 of 1950 which runs as follows:"i accordingly direct that the State do restore possession forthwith of the lands which are in their possession, to the petitioners after giving them notice of the date on which possession would be restored. I also direct that the State will supply to the petitioners within one month from this date the names of the persons to whom possession was made over by the State of the lands which are covered by notification, and the description of such lands as far as possible. Liberty is given to the parties to mention this matter".
( 12 ) AT the time of the hearing of these rules, no point was made that the Relief and Rehabilitation Department was a necessary party.
( 13 ) NO petition or affidavit has been filed by the petitioner stating what had happened after I made the order.
( 14 ) MR. Banerji, learned Advocate for the petitioner has stated before us that he mentioned the matter before P. N. Mpokerji J. on November 9, 1951, and filed plain copies of the petition on which Civil Rule No. 436 of 1951 was issued, the order passed in the said rule, the order passed in Civil Revision Case No. 1678 of 1950 and a notice dated October 22, 1951, addressed to the Land Acquisition Collector, Howrah with a note that copies were forwarded to (1) The Divisional Commissioner, Burdwan Division, (2) The Secretary, Land Revenue Department, Government of West Bengal, (3) The Director, Rehabilitation Department, Government of West Bengal.
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