V. Swaminathan v. The Advocate General of Tamil Nadu, Madras
1985-02-14
NATARAJAN
body1985
DigiLaw.ai
Judgment :- 1. Seeking the issue of a writ of certiorari in somewhat unusual circumstances, the petitioner herein, who is a respondent in a contempt application filed before this Court, has filed this petition under Art. 226 of the Constitution. What is impugned by the petitioner is the permission granted by the Advocate General (first respondent) to respondents 2 and 3 to file a contempt application against the petitioner and two others before this Court. 2. Respondents 2 and 3 have been accorded permission by the first respondent to file a contempt application against the petitioner and two others in the following circumstances: A partnership firm, of which respondents 2 and 3 are partners, has obtained a decree for a sum of Rs, 3,19,831.45, against a company in liquidation, viz., Messrs Ashoka Cotton Ltd., having its registered office at No. 102, Second floor, South Masi St., Madurai. The decree holders filed an Application No. 297 of 1983, before the Company court for appointment of an Advocate-Commissioner to take an inventory of the materials lying at the registered office of the company in liquidation. The Court appointed an Advocate-Commissioner. The counsel for the decree holder and the Advocate Commissioner went to Madurai for the purpose of taking inventory and the second respondent also accompanied them. At Madurai, they could not execute the warrant of commission, because, according to the second respondent, the petitioner who is an Advocate, instigated the liquidator, who is none other than his wife, not to appear at the company premises and open the doors for the Advocate Commissioner to enter the premises and take an inventory. Besides instigating the liquidator, the petitioner and one Meenakshisundaram (second respondent in the Company application) are said to have used abusive language against the Advocate Commissioner and party accompanying him. By their unlawful behaviour, the petitioner, his friend and wife, had prevented the Advocate-Commissioner from carrying out the orders of Court and taking an inventory of the articles kept in the company premises. After returning to Madras respondents 2 and 3 herein filed a contempt application and sought the sanction of the first respondent. The first respondent has accorded sanction and the contempt application has come to be filed. Notice has been ordered in the contempt application.
After returning to Madras respondents 2 and 3 herein filed a contempt application and sought the sanction of the first respondent. The first respondent has accorded sanction and the contempt application has come to be filed. Notice has been ordered in the contempt application. Even before the notice has been served on him, the petitioner has come forward with this petition praying for the issue of a writ of certiorari. What is impugned by the petitioner is the sanction accorded by the first respondent for the contempt application being filed. 3. When the writ petition came up for orders, it was not admitted, but instead, the office was directed to make available the records in the contempt application. After the records were made available, Mr. O.V. Balaswami, learned counsel for the petitioner was called upon to submit his arguments regarding the admissibility of the petition. 4. Mr. Balaswami advanced four arguments to seek the admission of the writ petition. The first was that the first respondent had accorded sanction in the contempt application without perusing all the records and without a full comprehension of the facts case. The second argument was that the order is a non-speaking order. The third one was that the order had been passed without giving notice and affording an opportunity to the petitioner to make his submissions and hence, there is violation of principles of natural justice. The further argument was that since the contempt application is with reference to the disobedience of the courts order, there was no need for the first respondent to give his consent or permission for the contempt application being filed. Mr. Balaswami argued that even administrative orders have to be in conformity with the principles of natural justice. He cited Mohindra Singh v. Chief Election Commissioner 1 at 870 in support of his argument relating to the observance of the principles of natural justice. He also cited Siemens Engg and Mfg. Co. v. Union of India 2, to reiterate the contention that a non-speaking order is bad in law. 5. On a careful examination of the contentions of Mr. Balaswami, I find that none of them is sustainable. The first respondent has not passed any final Order imposing penal or punitive consequence against the petitioner and others.
Co. v. Union of India 2, to reiterate the contention that a non-speaking order is bad in law. 5. On a careful examination of the contentions of Mr. Balaswami, I find that none of them is sustainable. The first respondent has not passed any final Order imposing penal or punitive consequence against the petitioner and others. All that he has done is to direct prima facie examination of the contempt application and find out whether it is a fit case for according sanction in order to enable the applicants to bring to the notice of the court the commission of contempt of its order. The order of sanction is therefore only a procedural one and not a judicial or administrative order. To pass such an order, it is not necessary that the applicants on the one side and the alleged contemners on the other, should be called upon to appear and put forth their respective contentions and an evaluation of those contentions should be made and a considered and detailed order passed on merits. Merely by reason of the permission granted, a contempt application does not become entitled to automatic admission. The applicants have to satisfy the court that there is a prima facie case of contempt and as such, notice to issue to the contemner for appearing before court and stating their case. It is, therefore, wholly unnecessary for the first respondent to write out a discussive and detailed order for granting permission for filing the contempt application in court. In so far as the first respondent granting sanction to the applicants without full comprehension of all facts is concerned, Mr. Balaswami argued that the petitioner applied for copies of documents and he was granted only a copy of the petition and affidavit. Hence, the counsel argued that the first respondent would not have seen the Commissioners report before granting sanction, and in that situation, it must be held that sanction has been accorded without a full study of the matter. The argument is based on surmise. Merely because a copy of the Commissioners report had not been given, it cannot be said that the first respondent would not have perused the report before he accorded sanction.
The argument is based on surmise. Merely because a copy of the Commissioners report had not been given, it cannot be said that the first respondent would not have perused the report before he accorded sanction. Even if it has to be held otherwise, there is no necessity for the first respondent to send for each and every document and make a study of it and then pass the order of sanction. As already stated, all that is needed is a prima facie satisfaction that the application for contempt has not been made on frivolous or imaginary grounds. Thereafter, it is for the court to consider whether the petition is worthy of being taken on file and calling for the issue of notice to the contemners. As the right to deal with the contempt application lies exclusively with the concerned court, no one has a right to move the writ Court to exercise parallel powers and make the proceedings aborted by quashing an order of sanction accorded by the Advocate General. 6. For all the aforesaid reasons, the writ petition does not merit admission and will accordingly stand dismissed.