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1983 DIGILAW 297 (MP)

State of M. P. v. L. C. Bahirani

1983-08-30

R.C.SHRIVASTAVA, U.N.BHACHAWAT

body1983
ORDER U.N. BHACHAWAT, J. The Collector and the Licensing Authority, Gwalior, under the M. P. Foodgrains Dealers Licensing Order, 1965, Gwalior, made a reference under section 15(3) of the Contempt of Courts Act, 1971, stating that (i) 'Case No. 7/6x31 of 1983 under section 6A of the Essential Commodities Act, 1955 had been registered against non-applicants Nos. 2 and 3 trading under the name and style of M/s Rajeshwari Rice and Dal Mill, Dabra, and is pending before him; (ii) non-applicant No. 3 had been appearing as an advocate for these non-applicants; (iii) an application dated 7-4-1983, copy whereof is annexed as Annexure 1 to the said reference, was filed by the non-applicants stating that the Court of Civil Judge Class II at Dabra in a Civil Suit, which had been filed in that Court by non-applicants Nos. 2 and 3, relating to the commodity, which is the subject matter of the aforesaid case before the Collector, had ordered the maintenance of status quo, which, in effect, was an injunction against the Collector restraining him from proceeding with the case pending before him, but, despite the intimation and knowledge of this order, the Collector had been proceeding with the case violating that order, which amounted to a contempt of the Court of the Civil Judge Class II, Dabra; so, in case the further proceedings were not stayed, the non-applicants would be constrained to move the Court of the Civil Judge Class If, Dabra to take action against the Collector under the Contempt of the Courts Act, and (iv) the Civil Court did not order the stay of the proceedings in Case No. 7/6x31 of 1983 before the Collector and, thus, the non-applicants by making the fore-referred application had committed contempt of the Court of the Collector; consequently, a notice under the Contempt of Courts Act, 1971, was issued to the non-applicants, who filed their respective replies (Annexures 3, 4 and 5 to the reference) persisting in their stand that was taken in the fore-referred application instead of being contrite and apologetic. This Court had issued a notice against the non-applicants to show cause as to why the above reference should not be admitted and proceedings under the Contempt of Courts Act. 1971 (for short, hereinafter referred to as 'the Contempt Act') be not taken against them. This Court had issued a notice against the non-applicants to show cause as to why the above reference should not be admitted and proceedings under the Contempt of Courts Act. 1971 (for short, hereinafter referred to as 'the Contempt Act') be not taken against them. The non-applicants have filed their respective replies denying that they committed any contempt and, inter alia, contended that the Collector functioning under section 6A of the Essential Commodities Act, 1955, in his capacity as a Collector-cum-Licensing Authority under the M. P. Foodgrains Dealers Licensing Order, 1965, is not a Court: hence the question of proceeding under the Contempt Act is not warranted. In the alternative, the non-applicants have submitted an apology. Since the question whether the Collector and the Licensing Authority functioning under section 6A of the Essential Commodities Act, 1955, is a Court, is one going to the root of the matter and is of general importance, we prefer to hear the learned counsel for the non-applicants and the learned Deputy Government Advocate for the State, who has been appearing to assist the Court in the matter. It cannot be gainsaid that since the Contempt Act deals with the subject of 'Contempt of Court' action can be taken under the Contempt Act, when it is a contempt of Court and not otherwise. The Contempt Act does not define the word 'Court.' The question, therefore, arises whether the provision is confined to the ordinary Civil, Criminal and Revenue Courts, established for the three branches of the law, or extends to other Tribunals, ad hoc or permanent, which, though not full-fledged Courts, bear the essential trappings of a Court. Whether a particular authority or a Tribunal for the purpose of the Contempt Act is a Court or not, has not to be determined with reference to the nomenclature but with reference to the functions and duties. This position can be said to be well settled in view of the decision of the Supreme Court in Thakur Jugal Kishore Sinha v. The Sitamarhi Central Co-operative Bank Ltd AIR 1967 SC 1494 . Now, in order to examine the question at hand, a reference to the functions and duties of the Collector acting under section 6A of the Essential Commodities Act, 1955, is advisable. Now, in order to examine the question at hand, a reference to the functions and duties of the Collector acting under section 6A of the Essential Commodities Act, 1955, is advisable. Section 6A and other Sections of the Essential Commodities Act, 1955, so far relevant, read as under:- 6-A. (1) Where essential commodity is seized in pursuance of an order made under section 3 in relation thereto a report of such seizure shall, without unreasonable delay, be made to the Collector of the district or the Presidency-town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector, may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied that there has been a contravention of the order, may order confiscation of- (a) the essential commodity so seized; *** *** *** " 6-B. (1) No order confiscating any essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance shall be made under section 6A unless the owner of such essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance or the person from whom it is seized - (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and (c) is given a reasonable opportunity of being heard in the matter, (2) Without prejudice to the provisions of sub-section (1) no order confiscating any animal, vehicle, vessel, or other conveyance shall be made under section 6A if the owner of the animal, vehicle, vessel or other conveyance proves to the satisfaction of the Collector that it was used in carrying the essential commodity without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the animal, vehicle, vessel or other conveyance and that each of them had taken all reasonable and necessary precautions against such use. (3) No order of confiscating any essential commodity, package, covering, receptacle, animal, vehicle, vessel or other conveyance shall be invalid merely by reason of any defect or irregularity in the notice given under clause (a) of sub-section (1), if, in giving such notice, the provisions of that clause have been substantially complied with. In Brajnandan Sinha v. Jyoti Narain AIR 1956 SC 66 in which the question arose as to whether the Commissioner appointed under Public Servants (Inquiries) Act, 1850 (XXXVII of 1850) was a Court within the meaning of the Contempt of Courts Act, 1952. Bhagwati J. held in that case that 'in order to constitute a Court in the strict sense of the term, an essential condition was that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement.' The same principle had been stated earlier in Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. AIR l950 SC 188-of course, in a different context- and Maqbool Hussain v. State of Bombay AIR 1953 SC 325 , where the test of a judicial tribunal as laid down in a passage from Cooper v. Wilson (1937) 2 KB 309 at pp. 340-341 was adopted by the Supreme Court: A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites:-(1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and the application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law." 6. Reference may also be made to the decision of the Supreme Court in Virindar Kumar Satyawadi v. The State of Punjab AIR 1956 SC 153 . Reference may also be made to the decision of the Supreme Court in Virindar Kumar Satyawadi v. The State of Punjab AIR 1956 SC 153 . In that case question that had arisen was, whether a returning officer acting under sections 33 and 36 of the Representation of the People Act, 1951, and deciding on validity or otherwise of a nomination paper was not a Court, within the meaning of sections 195(1)(b), 476 and 476B of the Code of Criminal Procedure, Here too, the authorities which were cited in Brijnandan Sinha's case (supra) were reviewed and it was said : It may be stated broadly that what distinguishes a Court from a quasi-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question, therefore, arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court. (7) We have now to decide whether in view of the principles above stated and the functions and powers entrusted to the returning officer under the Act, he is a Court. The statutory provision bearing on this matter is section 36. Under section 36(2), the returning officer has to examine the nomination paper and decide all objections which may be made thereto. This power is undoubtedly judicial in character. But in exercising this power, he is authorised to come to a decision "after such summary enquiry, if any, as he thinks necessary." That means that the parties have no right to insist on producing evidence which they may desire to adduce in support of their case. There is no machinery provided for summoning of witnesses, or of compelling production of documents in an enquiry under section 36. The returning officer is entitled to act 'suo motu if in the matter. There is no machinery provided for summoning of witnesses, or of compelling production of documents in an enquiry under section 36. The returning officer is entitled to act 'suo motu if in the matter. When one compares this procedure with that prescribed for trial of election petitions by the Election Tribunal under sections 90 and 92 of the Act, the difference between the two becomes marked. While the proceedings before the Election Tribunal approximate in all essential matters to proceedings in civil Courts, the proceedings under section 36 present a different picture. There is no 'lis', in which persons with opposing claims are entitled to have their rights adjudicated in a judicial manner, but an enquiry such as is usually conducted by an 'ad hoc" tribunal entrusted with a quasi-judicial power. In other words, the function of the returning officer acting under section 36 is judicial in character, but he is not to act judicially in discharging it. We are of opinion that the returning officer deciding on the validity of a nomination paper is not a Court for the purpose of section 195(1)(b) of the Code of Criminal Procedure, and the result is that even as regards the charge under section 193, the order of the Magistrate was not appealable, as the offence was not committed in or in relation to any proceeding in a Court. If, in the light of the aforesaid authorities, we examine the functions and powers entrusted to the Collector under section 6A of the Essential Commodities Act, 1955, it indicates that they do not make him a 'Court'. On reading sections 6A and 6B of the Essential Commodities Act, 1955, extracted hereinbefore in para.4 of this order, it is apparent that the Collector has been entrusted with quasi-judicial power. There is no machinery provided for the summoning of witnesses or of compelling production of documents. It is also significant to note that there is no lis. The expression .....the Collector may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him......" is very significant. This goes to show that the Collector was entitled to act suo motu under section 6A. Further, the Collector does not give a final authoritative judgment. In this respect, section 6C(2) of the Essential Commodities Act, 1955 needs a look. This goes to show that the Collector was entitled to act suo motu under section 6A. Further, the Collector does not give a final authoritative judgment. In this respect, section 6C(2) of the Essential Commodities Act, 1955 needs a look. It reads as under: 6-C. (I) *** *** *** (2) Where an order under section 6A is modified or annulled by the State Government, or where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under section 6A, the person concerned is acquitted, and in either case it is not possible for any reason to return the essential commodity seized, such person shall, except as provided by sub-section (3) of section 6A be paid, the price therefor as if the essential commodity had been sold to the Government, with reasonable interest calculated from the day of the seizure of the essential commodity; and such price shall be determined- (i) in the case of foodgrains, edible oilseeds or edible oils, in accordance with the provisions of subsection (3-B) of section 3; (ii) in the case of sugar, in accordance with the provisions of subsection (3-C) of section 3; and (iii) in the case of any other essential commodity, in accordance with the provisions of sub-section (3) of section 3." The fore-extracted sub-section 6-C (2) goes to show that in spite of the fact that the order of confiscation is confirmed by the appellate authority in appeal under section 6-C (1), if the prosecution for contravention of the order, in respect of which the order of confiscation has been made, has resulted in acquittal, the petitioner would be entitled to the price of the goods under the clear terms of section 6-C (2). The goods are not liable to confiscation if the prosecution ends in acquittal. The confiscation proceedings are made subject to the result of any prosecution that may be launched. In the light of the foregoing discussion, we are of the opinion that Collector acting under section 6A of the Essential Commodities Act, 1955, is not a Court for the purpose of the Contempt of Courts Act, 1971. Before parting with the order, we would like to observe on the ground of propriety: the profession of law is a noble profession, to maintain this, the persons in the profession are required to act and behave nobly. Before parting with the order, we would like to observe on the ground of propriety: the profession of law is a noble profession, to maintain this, the persons in the profession are required to act and behave nobly. Use of intemperate language in the discharge of the professional function by a lawyer affects the nobility adversely. The language used in the application (Annexure 1) filed before the Collector is intemperate and rather reflects an attempt to bully; but we are happy that during the course of the arguments, realising this, the learned counsel on behalf of non-applicant No. 1 and the non-applicant himself were contrite for this. In the result, the reference is dismissed.